State Athletic Commissions’ attempts to regulate professional athletes’ speech erodes their bargaining power and ability to build a brand.
The bedrock of a civil society is the right to criticize those in power. This principle is incorporated in the First Amendment to the United States Constitution. Specifically, the First Amendment states:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
U.S. Const. amend I
These forty-five words, incorporated and applied to the states through the Fourteenth Amendment, have served as U.S. society’s sword and shield. While tragically relevant, throughout American history the First Amendment has been society’s last bastion against censorship of dissenting or unpopular speech. Additionally, it has served the dual role giving athletes and entrepreneurs the legal means to build a brand and capitalize upon it through their advertising and marketing.
Among the most visible methods of building a brand among athletes occurs in combat sports. Beginning with the late Muhammad Ali, athletes in boxing and mixed martial arts have used their respective platforms to speak about social change, but also to build their personas into a marketable brand. This is regularly on display in the UFC, the premier professional mixed martial arts league in the United States. Much of the UFC’s growth has come as a result of dynamic athletes, who have translated success in the octagon into popular culture relevance and commercial success. In turn, this success gives certain athletes bargaining power to renegotiate contracts and earn money from pay per view sales; this is possible within the UFC because there is currently no union, thus the lack of a bargaining unit moots claims for standardized terms and conditions of employment with management.
Through the rise of the UFC, many athletes have built brands, but one athlete stands out as the most dynamic and successful by a wide margin. Conor McGregor, the UFC’s first champion in multiple weight divisions, has built a commercial empire centered around his “Notorious” persona. A polarizing figure, using confidence and witty remarks backed up with success in the octagon, Conor’s brand now spans from the whiskey industry to fitness and even fashion. It is undeniable, no one in the history of the UFC has built a more marketable brand.
Marketable does not mean infallible, Conor’s confidence and wit can stir the passions of opponents and their fan bases alike. This conduct has gotten him into trouble with the law and Neveda State Athletic Commission (“NSAC”). However, the biggest threat to his brand and bargaining power with the UFC is from a fight that occurred outside the octagon. Conor fought Khabib Nurmagomedov at UFC event 229 on October 6, 2018, resulting in Conor being submitted in the fourth round of a highly contested fight. Immediately after the fight, Conor was attacked from behind while still inside the cage by associates of Kahbib, who had jumped into the crowd and attacked another athlete for being disrespectful. In sum, it was utter chaos.
To the shock of no one, this series of events led to an investigation and subsequent hearing by the NSAC. The events leading up the chaotic UFC fight came under close scrutiny at this hearing. Conor, confident in his abilities and in an effort to sell the fight, insulted Kahbib’s family and faith. Going forward, NSAC indicated it will be developing a standard to punish athletes for “promotional” speech that goes too far and crosses the line they determine is inappropriate.
Athletes have not been punished yet because due process rights associated with restrictions on speech must be met prior to enforcement. All individuals subject to a restriction on speech are due, in the least, notice of the restriction prior to punishment. Going forward, after NSAC develops a workable standard, they will likely either justify it as a ban on fighting words, which fall outside of the First Amendment protection, or a restriction on commercial speech.
Public institutions such as NSAC can promulgate regulations that restrict speech falling outside the robust protections of the First Amendment. Specifically, fighting words are not at all by the First Amendment. Generally, fighting words are speech that is likely to incite immediate violence or retaliation from the recipients of the words. Given this narrow definition, restricting promotional speech such as Conor’s could not be justified on this theory because of the temporal proximity of the speech to the events of violence or retaliation. The simmering of anger in an opponent is not a sufficient basis for restriction when that indivual has time to reflect on the anger and act lawfully to vindicate the perceived injuries from insults. The result of a restriction or ban on fighting words would only allow punishment under the regulation for a fight that breaks out immediately after the speech is heard by the opponent, leaving NSAC at the same juncture it is now, with no method of punishing athletes who use extreme speech to promote UFC events.
Pivoting away from banning fighting words, NSAC can attempt to defend a restriction on promotion speech by arguing it is commercial speech entitled to less protection than traditional political or socially conscious speech. In order to legally justify a regulation on commercial speech (which the promotional speech is), NSAC must demonstrate a significant interest in restricting the speech. The regulation itself must be narrowly tailored, meaning it cannot sweep up protected speech in the process of restricting proscribed words and phrases. This can likely be accomplished by NSAC by selecting words and phrases to prevent emotional harm and bullying.
Notwithstanding the interest in preventing harm by NSAC, regulating promotional speech likely to harm or even bully engages in viewpoint discrimination, fatal to its enforceability. View point discrimination occurs when a restriction on a particular class of speech selects one side or view to ban. By selecting specific phrases or words based upon references to protected classes of people or religious beliefs within promotional speech leading up to a fight, NSAC would be identifying one type of speech within a broader class of specific speech to regulate. On its face, this regulation is unenforceable and dangerous. It has the effect of creating a state sponsored echo chamber that merely reinforcing views held by the majority.
Irrespective of NSAC’s noble intentions and the slim chances of restrictions on promotional speech passing constitutional muster, these restrictions on athletes such as Conor McGregor are dangerous in a civil society. By restricting what an athlete can say, the marketability of their brand can be severely restricted, effectively capping potential value of a brand by limiting abilities to grow through effective promotion. A diminished or limited brand inevitably erodes an athlete’s bargaining power with management because as value decreases, the athlete becomes more dependent upon an upcoming event. These regulations derivatively harm the local economy as well because as the UFC sells less tickets or pay per views due to the lack of effective promotion, substantial streams of revenue for the local economies where the events take place would thereby be reduced. Hurt feelings and unchecked aggression should not create the slippery slope that can rob athletes of their platform and cost local communities valuable jobs. Rather, established tort law or the actual competition itself should be used to vindicate the rights of promotional speech recipients.
By Tony DiPerna
Photo Credit: Noah K. Murray-USA TODAY Sports
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