Lethal Stakes in New York’s Statutory Shell Game

Maybe five or so years ago, NYPD shut down an amateur Muay Thai show at Peggy Chau’s Fighthouse in midtown Manhattan. SPOILER ALERT. The New York State statute banning “Combative Sports” applies only to professionals. It also exempts “martial arts” from the prohibition of “Combative Sports”. Since Muay Thai is a “martial art”, we had double indemnity to put on the show. So how come NYPD shut it down?

Safety FirstFor starters, the cops wanted to see a permit. Although this seemed to be a problem for Peggy, from where I sat, I’m not sure it was the deal breaker. State and/or municipal code apparently require the kind of business that Peggy operated to maintain a shower on the premises, along with handicap accessible toilets. The cops can shut down any business for non-compliance with such regulatory standards as are applicable. In the era of broken windows policing, that’s what seemed to have gone down.

Double StandardsEspecially where they apply to public health and safety, regulatory standards don’t somehow become optional, when they’re assigned to the private domain for administration. On the contrary, sanctioning fees in “Combative Sports” are specifically intended to fund such administration. So exempting “Combative Sports” from New York’s statutory prohibition through a transfer of regulatory authority to an approved sanctioning organization in no way repeals the public health and safety standards applicable to this business.

Whatever practices the New York State Athletic Commission (NYSAC) defines as applicable within its legislative mandate, thus, set the standards. Go through the whole check list in N.Y. Unconsolidated Law § 8905-a (2): drug testing, medicals, injury suspensions, cooperative data exchange, and transparent weigh-ins with strict enforcement of tolerable weight differentials. Administration of these practices transfer with any exemption from a prohibition that NYSAC itself would otherwise apply. The cops could shut down any show for non-compliance, just like NYPD did at the Fighthouse. NYSAC could and should DQ any pinch hitter who can’t or won’t pass muster.

Broken WindowsWe’ve been dodging the bullet in New York State, probably because the statute’s scope is so nonsensical. Professionals are prohibited from doing what amateurs can. NYSAC can transfer regulatory authority the statute prohibits it from exercising. A “martial art” is whatever WKA sanctions but not if it doesn’t. This isn’t a law per sé, so much as a bunch of legislative loopholes on auto rewind. Only in New York does a statutory shell game define prohibition as an exemption from regulation or does a U.S. District Court think this kind of parsing our language isn’t “unconstitutionally vague”.

Whatever happens in reality takes place within the statute’s empty spaces. Holy rollers can claim they got a prohibition of “Combative Sports”, while we’ve got a dead amateur mixed martial artist in Albany. (See “The Biggest Problem with No Amateur Regulation in New York: Dead Fighters” by Jim Genia on The MMA Journalist) The next time a U.S. District Court takes up the matter, it should consider how the Commerce Clause factors into fighters from all over the world are putting themselves at risk in this state believing that we’re on top of our game. (See “Court Dismisses All But One Of Zuffa et al.’s Claims Challenging the Ban on Mixed Martial Arts in New York” by Justin Klein on The Fight Lawyer)

New York State Governor Mario Cuomo

New York State Governor Andrew Cuomo

Right now yet another bill is pending before the New York State Legislature with less than two weeks before we’re back to kicking the can down the road. The same public health and safety standards will apply to this business, irrespective of whether the Legislature mandates public administration by NYSAC or continues to exempt the prohibition of “Combative Sports” through loopholes.

From “Albany Dysfunction” on January 22, 2015.

From “Albany Dysfunction” on January 22, 2015.

End Story MarkWhat difference would it make, whatever law is on the books, without enforcement? Let’s all hope that local District Attorneys, cops and especially NYSAC aren’t waiting on three men in a room for permission to do their jobs. (See “After Silver Arrest, U.S. Attorney Bharara Mocks Three Men in a Room” by Colby Hamilton in http://www.capitalnewyork.com/ on January 23, 2015)

New York State Capitol

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