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Some of the Parts, But Not the Sum of the Parts


April 2nd, 2009

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Some of the Parts, But Not the Sum of the Parts

 

A Quick Look at the State of Boxing, Wrestling, and Martial Arts in New York State in the Absence of the Legalization of Mixed Martial Arts and Whether Mixed Martial Arts Fits in With These Disciplines Under Existing or Proposed Law

 

Boxing. Wrestling.  Judo.  Tae Kwon Do.  Karate. Kenpo.  The practitioners of the aforementioned disciplines are permitted to participate in matches or exhibitions in New York State under the guidance of either a licensed promoter[1] or a specific organization.[2]  What these six disciplines also have in common are that each of them are among the core disciplines that make up the sport known as mixed martial arts (hereinafter “MMA”).   MMA is also made up of such other disciplines as Sambo, Muay Thai, Shoot Fighting, and Brazilian Jiu-Jitsu, each of which are widely taught at gyms and martial arts academies throughout New York.   Unlike its component parts, however, MMA is currently outlawed in New York.  That is because, like an increasing minority of its brethren across the United States, the New York State Assembly continues to hold firm in its position that MMA is little more than “human cockfighting.”  The question is whether, under the existing laws concerning the aforementioned disciplines in New York State or their proposed amendments, the “human cockfighting” claim is anything more than an outmoded misnomer for a largely reformed and increasingly popular sport. 

 

MMA Under Existing New York Law

 

            Pursuant to Section 8905-a of the Unconsolidated Laws of the State of New York (hereinafter “Section 8905-a”), MMA is currently regarded as a “combative sport.”  A “combative sport” is defined as “any professional match or exhibition other than boxing, sparring, wrestling or martial arts wherein the contestants deliver, or are not forbidden by the applicable laws thereof from delivering kicks, punches or blows of any kind to the body of an opponent or opponents.” [3]  Despite the exception seemingly carved out for martial arts in the explicit text of the above provision, only specific organizations that promote judo, tae kwon do, karate, and kenpo are actually permitted to stage martial arts events in New York.[4]  The New York State Athletic Commission (hereinafter the “Commission”), however, “is authorized to promulgate regulations which would establish a process to allow for the inclusion or removal of martial arts organizations” from its list of approved martial arts organizations.[5]  When deciding whether or not to include or remove such an organization, the Commission is mandated to consider, among others, the following factors:

 

“(a) is the organization’s primary purpose to provide instruction in self defense techniques;

 

(b) does the organization require the use of hand feet and groin protection during any competition or bout; and

 

(c) does the organization have an established set of rules that require the immediate termination of any competition or bout when any participate has received severe punishment or is in danger of suffering serious physical injury.” 

 

            If a given discipline and its organization fail to satisfy the above factors and other criteria that may be utilized on a case-by-case analysis, it is deemed a “combative sport,” shall not “be conducted, held or given within the state of New York[,]” and may not “be approved by the commission for such matches or exhibitions.”[6]  Employing the above factors, an analysis of MMA, using the Ultimate Fighting Championship (hereinafter the “UFC”) as the sample organization, follows.  It should be noted, however, as will be discussed more below, that MMA should not necessarily be subjected to the existing restrictions of Section 8905-a in the first instance.

 

Is the UFC’s Primary Purpose to Provide Instruction in Self Defense Techniques?

 

            The answer to this first question is a resounding no. What the UFC does is promote, organize, and award championships by weight class in large-scale MMA events.  The participants in the UFC’s MMA events are among the most accomplished practitioners in the world of the above-referenced disciplines.  In short, participation in the UFC is the end result of many years of association with an organization, academy, camp, or training facility whose “primary purpose” is “to provide instruction in self defense techniques.”  But the UFC itself does not have the teaching of various martial arts as its primary purpose.  However, the UFC recently announced its intention to start providing instruction in self-defense techniques through the launching of its own gyms.[7]  The development of these gyms could ultimately blur the answer to this particular inquiry under Section 8905-a. 

 

Does the UFC Require the Use of Hand, Foot, and Groin Protection During its Bouts?

 

            Mixed martial artists who participate in the UFC are only permitted to wear UFC and athletic commission approved four-to-six ounce gloves that are designed to protect the hand, yet not large enough “to improve the striking surface or weight of the punch.”[8]  Shoes are not allowed because of the problems that they create in grabbing your opponent.[9]  And although groin protection is not explicitly addressed in the equipment section of UFC’s website, its known that the UFC’s male competitors are mandated to and routinely wear the same. 

 

Does the UFC Have Rules with Regard to Stopping Contests When Participants Have Received Severe Punishment or Are in Risk of Serious Physical Injury?

 

            There are eight ways to win your bout as a UFC participant.[10]  Among the eight are a “[t]echnical knockout by the referee stopping the contest[,]” submission by both physical and verbal tap out, and disqualification.[11]  In short then, a referee my rescue a participant that has received severe punishment or is in risk of serious physical injury by either calling his opponent the winner by technical knockout or the loser by disqualification and a participant may rescue himself by tap out submission.  Additionally, it appears that it is within the referee’s discretion as to whether he wishes to disqualify someone who is taking a lot of physical punishment or is in risk of serious physical injury in the event of corner interference or the throwing in of a towel during the competition.  Both are specifically enumerated fouls under the UFC Rules.[12]   The UFC Rules, therefore, contain several provisions designed to minimize the physical punishment sustained in a MMA contest.

 

Is MMA a Neat Fit in New York State Under the Existing Laws?

 

            As demonstrated above, the UFC and its rules are in textbook conformance with only one of the three factors listed under Section 8905-a.  It is beyond question that the UFC has extensive rules with regard to stopping contests when participants have received severe punishment or are in risk of serious injury.  However, the UFC is neither an organization whose primary purpose is to provide instruction in self-defense techniques at this time nor an organization that requires the use of foot protection during its competitions.  In fact, it expressly bans the wearing of any footwear in its rules.  Having said that, there are several other facts to consider before declaring the UFC unworthy of designation as an organization whose participants should be permitted to compete in a legally recognized exception to “combative sports” in New York.

 

            To begin, MMA counts professional boxers and wrestlers among its participants.  Unlike their martial arts counterparts, boxing and wrestling are not confined to a select few organizations that are permitted to stage fights in New York.  Instead, they simply require a licensed promoter.[13]  MMA is a hybrid discipline as the law is phrased in New York, as the presence of wrestlers and boxers in MMA allow the New York State Assembly wiggle room to decide whether MMA should be regarded in the same way as boxing, sparring, or wrestling exhibitions, or whether it should instead be regarded in the same manner as martial arts and be required to have specific organizations stage its shows.  

 

If MMA were added to Section 8905 of the Unconsolidated Laws of the State of New York (hereinafter “Section 8905”), the section that authorizes boxing and wrestling matches and exhibitions, the UFC would not have to satisfy the three factors noted above, or any others, in order to be permitted to stage shows.  It would simply need a promoter’s license.  But if MMA were not added to Section 8905, the UFC runs into an immediate problem under the first factor of the Section 8905-a inquiry.  Given its fusion of various disciplines, it seems almost impossible to assign MMA to either Section 8905 or Section 8905-a.  “Martial arts” may be part of its categorical designation and its catchall term, but by design, MMA does not fit under either section with certainty.

 

            Further, MMA is, by definition, a mixture of various disciplines.  Many of those disciplines do not require or even allow their own participants to wear anything on their feet during their competitions.[14]  Therefore, if the individual disciplines are permitted to stage professional matches or exhibits in New York without foot wear, it begs the question of why MMA would or should be held to a different standard under the second factor of the Section 8905-a inquiry. 

 

            Finally, it should be noted that the process to allow for the inclusion or removal of martial arts organizations from New York’s approved list, to the extent that the UFC should be treated the same as the other organizations under Section 8905-a to begin with, “shall include but not be limited to the consideration” of the three factors cited above.   In other words, the phraseology of Section 8905-a allows the Commission to contemplate any number of other aspects in deciding whether to add the UFC and other organizations that stage MMA events to its approved list in the absence of any amendments to the law.  To date, the other aspects the Commission has considered would appear to include political pressure and hotly disputed widespread perceptions about the current level of brutality in MMA, as it continues to be outlawed. 

 

 

 

MMA in New York State Under the Proposed Amendment to Section 8905-a

 

The recent proposed amendment to Section 8905-a, introduced on January 27, 2009, reads in relevant part, that:

 

“[a] ‘combative sport’ shall mean any professional match or exhibition wherein the contestants deliver, or are not forbidden by the applicable rules thereof from delivering kicks, punches or blows of any kind to the body of an opponent or opponents.  However, ‘mixed martial arts’ shall not be included in the definition of combative sport.  ‘Mixed martial arts shall mean the utilization of permitted martial arts techniques, including striking and grappling.”[15]

 

The fact that the proposed amendment is phrased in such a way as to explicitly carve an exception for MMA in addition to those already made for boxing, wrestling, and martial arts is an acknowledgement that at least certain members of the New York Assembly recognize that it does not fit either existing category, as demonstrated above.  However, as the law now exists, the Commission continues to be compelled to shoehorn MMA into the “combative sport” category and mandate that organizations such as the UFC establish the existence of the same factors as traditional martial arts organizations that it already permits to stage events.  Under a strict interpretation of those factors, the UFC cannot.  That is why New York now allows for some of the component parts that make up MMA to stage professional matches or exhibitions in New York, but not the sum of its parts, MMA itself.

 

Paul Stuart Haberman, Esq. is an attorney at the New York law firm of Heidell, Pittoni, Murphy & Bach, LLP.  He is also a New York State licensed boxing manager and the Chairman of the Sports Law Committee of the New York County Lawyers Association.  ©

 



[1] See Unconsolidated Laws of the State of New York, Title 25, Chapter 1 § 8905.

[2] Id. at 8905-a.

[3] Id. 

[4] Id. The list currently consists of U.S. Judo Association, U.S. Judo, Inc., U.S. Judo Federation, U.S. Tae Kwon Do Union, North American Sport Karate Association, U.S.A. Karate Foundation, U.S. Karate, Inc., World Karate Association, Professional Karate Association, Karate International, International Kenpo Association, and World Wide Kenpo Association.

[5] Id. 

[6] Section 8905-a(2).

[8] The UFC © Fact Sheet, available at http://www.ufc.com/index.cfm?fa=LearnUFC.FactSheet#section6 (last visited March 26, 2009).

[9] Id.

[10] Id.

[11] Id.  The other methods of winning are: (1) a decision via scorecards, (2) a technical decision, (3) a technical draw, (4) forfeit, and (5) no contest.   It should be noted that two of these methods of “winning,” by technical draw and by no contest, are generally not regarded as wins on an athlete’s record in other sports, such as professional boxing.

[12] Id.  It should be noted that the UFC Rules have been approved by the Nevada State Athletic Commission..

[13] 19 N.Y.C.R.R. § 206.7 (“No…promoter…shall engage, in any way, either directly or indirectly, in boxing or wrestling contests or exhibitions in this State unless he or she shall have first procured the appropriate license or permit from the commission”).

[14] Participants are not allowed to wear razors on their legs either. So much for the “human cockfighting” analogy!  Further, milk cannot be poured on the participants’ skin or coat, so a “human dog fighting” analogy would be similarly inapposite. 

[15] http://assembly.state.ny.us/leg/?bn=A03439&sh;=t (last viewed on March 26, 2009).




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