SBJ/Aug. 24-30, 2015/Opinion

UFC appeal highlights First Amendment issue for sports

T he end of the state legislative session in Albany this past June marked another loss for mixed martial arts as a bill to legalize the sport in New York failed to obtain passage. While MMA supporters must wait another year to lobby Albany, an appeal of a lawsuit filed by Zuffa, owner of the Ultimate Fighting Championship, against the state of New York claiming its law banning professional MMA is unconstitutional remains in the 2nd U.S. Circuit Court of Appeals. Former U.S. Solicitor General Paul Clement is spearheading the appeal on behalf of the company and filed its initial appellate brief on Aug. 4. MMA’s loss in Albany may mean a burgeoning legal question about First Amendment protection of sports will be first addressed by the court.

Whether sporting events are protected under the First Amendment is an intriguing legal issue. With the introduction of cellular phone applications such as Periscope and Meerkat, which allow the dissemination of real-time streaming, the question is beginning to gain traction.

Sports organizations would like to monetize the distribution of sports information through the use of these new applications. At the same time, they would like to restrict the press and public from using these tools without consent. Thus, the question of whether First Amendment protection attaches to sporting events is a notable issue in Zuffa’s appeal.

In its original complaint filed in November 2011, Zuffa, along with a number of its contracted fighters and other plaintiffs, alleged injury from New York’s law prohibiting professional mixed martial arts in the state. One of its causes of action against the state was that the existing New York law violated a fighter’s First Amendment right.

The First Amendment provision protects actual speech as well as “expressive” and “symbolic” conduct. Zuffa argued that conduct clearly undertaken for expressive purposes, such as to engage or entertain an audience, is deemed to be inherently expressive. The court was not persuaded by Zuffa’s arguments in favor of First Amendment protection. The U.S. District Court for the Southern District of New York determined that professional MMA matches and exhibitions are not protected free speech and dismissed its claim on a motion by attorneys for the state.

Implicit in the district court’s ruling is the apprehension of allowing sports to have First Amendment protection. The basic difference between performances in theatre that are protected by the First Amendment as opposed to sports is the fact that the former includes a predetermined ending whereas sports does not. Allowance of First Amendment protection in theatre presupposes an intent to convey a particularized message but assumes that athletic endeavors do not.

In its appeal brief, Zuffa argues that live entertainment, including live MMA, are presumptively entitled to First Amendment protection. “[T]he very fact that conduct is undertaken before an audience can convert something that might not otherwise be considered First Amendment activity into inherently expressive conduct protected by the Free Speech Clause,” argues Clement on behalf of Zuffa.

While the appeal before the 2nd Circuit will address multiple legal issues, the First Amendment claim will have sports leagues taking note due to the dissemination of their product for various reasons.

First, there is the protection of intellectual property. In instances like Periscope and Meerkat, the uncertainty of the advancement of technology may have sports leagues on notice.

The fight between Floyd Mayweather and Manny Pacquiao this past May was the first major event which showed the potential issues with these phone applications. Instead of paying the $100 pay-per-view price charged by cable and satellite distributors, viewers looked to the Internet finding people who filmed their TV sets using Periscope so as to stream the fight to others online for free. Secondly, for those reporting on sports, real-time video is a new issue still being fleshed out.

Also in May, golf reporter Stephanie Wie had her media credentials revoked after she posted a live stream of a practice round on Periscope. During the UFC’s biggest event of the year, July’s UFC 189 in Las Vegas, a reporter using Periscope during media week to give his followers a sense of the enormity of the event was told by public relations staff to stop using Periscope. Later, it was indicated via Twitter that the UFC would allow Periscope but not during actual events. Still, it is not clear if an actual policy is in place as efforts to contact the UFC were unsuccessful.

The technological advances of providing real-time information to the public can lead to a variety of pros and cons. The thirst for up-to-the-second information about every nuanced detail regarding a favorite team or player may entice fans. But this will need to be balanced against the possibility of “courtsiding,” a gambling method in which real-time data is transmitted prior to sports books obtaining it to calibrate its odds and wagers.

If the First Amendment applies to sports, then journalists have a viable argument that the reporting of live sporting events utilizing technology such as Periscope and Meerkat is free speech and thus is not protected under the guise that it is the league’s intellectual property. However, if this becomes a reality, not only will journalists like Wie will be able to show practice rounds via Periscope, others might utilize the opportunity as a way to coordinate placing bets or for other purposes.

Zuffa probably did not know the potential impact its First Amendment claim could have back in the fall of 2011 when it first filed its lawsuit. Yet, in 2015, we could see a ruling that might affect the way sports leagues view this new technology.

Jason J. Cruz (jason@cruzlawpllc.com) is an attorney at Cruz Law and writer in Seattle. He is the editor-in-chief for MMAPayout.com, a website focusing on business and legal issues in mixed martial arts. Follow him on Twitter @dilletaunt.

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