ag brief

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK JON JONES, GINA CARANO, FRANKIE EDGAR, MATT HAMILL, BRIAN STANN, ZUFFA, LLC d/b/a ULTIMATE FIGHTING CHAMPIONSHIP, DON LILLY, SHANNON MILLER, DANIELLE HOBEIKA, BETH HURRLE, DONNA HURRLE, STEVE KARDIAN, JOSEPH LOZITO, ERIK OWINGS, CHRIS REITZ AND JENNIFER SANTIAGO,

Plaintiffs,

-against-

ERIC T. SCHNEIDERMAN, in his official capacity as Attorney General of the State of New York, DENNIS ROSEN, in his official capacity as Commissioner and Chairman of the New York State Liquor Authority, and JEANIQUE GREEN, in her official capacity as Commissioner of the New York State Liquor Authority,

Defendants.

11 Civ. 8215 (KMW) (GWG) ECF Case

DEFENDANTS’ MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Defendants 120 Broadway - 24th Floor New York, New York 10271 JOHN M. SCHWARTZ JULIA H. LEE JOSHUA PEPPER STEPHEN S. HO, Of Counsel

Case 1:11-cv-08215-KMW-GWG Document 118 Filed 08/21/14 of 32

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .......................................................................................................... ii PRELIMINARY STATEMENT .................................................................................................... 1 POINT I: AS DEMONSTRATED IN DEFENDANTS’ MOTION TO STRIKE, THE COURT SHOULD NOT CONSIDER EVIDENCE IN SUPPORT OF PLAINTIFFS’ MOTION THAT IS NOT ADMISSIBLE ........................................... 3 POINT II: PLAINTIFFS HAVE FAILED TO SHOW THAT THEY HAVE STANDING TO BRING THIS SUIT ............................................................................................... 3 A. Plaintiff Zuffa ..................................................................................... 4 B. Plaintiffs Lilly and Miller ................................................................... 7 C. The Remaining Plaintiffs ................................................................. 10 POINT III: § 8905-a IS NOT UNCONSTITUTIONALLY VAGUE ......................................... 10 A. Professional MMA Events Sponsored By Exempt Organizations ................................................................................... 11 B. Amateur MMA Events in New York .............................................. 19 C. Professional MMA Events on Indian Reservations in New York .................................................................................... 22 POINT IV: THE 2001 LIQUOR LAW IS NOT UNCONSTITUTIONALLY VAGUE AS APPLIED TO ZUFFA, MILLER OR LILLY ................................................... 24 CONCLUSION ............................................................................................................................. 25


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TABLE OF AUTHORITIES

Cases Page(s)

Allen v. Wright, 468 U.S. 737 (1984) ...................................................................................................................4

Allstate Ins. Co. v. Serio, 261 F.3d 143 (2d Cir. 2001).....................................................................................................19

Arista Records LLC v. Lime Group LLC, No. 06 CV 5936, 2011 U.S. Dist. LEXIS 35362 (S.D.N.Y. 2011) (Wood, J.) .........................3

ASARCO, Inc. v. Kadish, 490 U.S. 605 (1989) ...................................................................................................................5

California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987) .................................................................................................................22

Clapper v. Amnesty International U.S.A., ___U.S. ___, 133 S. Ct. 1138 (2013) .............................................................................4, 6, 8, 9

Dickerson v. Napolitano, 604 F.3d 732 (2d Cir. 2010).....................................................................................................13

Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451 (1992) ...................................................................................................................3

Evergreen Association, Inc. v. City of New York, 740 F.3d 233 (2d Cir. 2014).....................................................................................................15

Farrell v. Burke, 449 F.3d 470 (2d Cir. 2006).................................................................................5, 7, 10, 13, 21

Field Day, LLC. v. County of Suffolk, 463 F.3d 167 (2d Cir. 2006).....................................................................................................19

Fischl v. Armitage, 128 F.3d 50 (2d Cir. 1997).......................................................................................................22

Fulani v. League of Women Voters Educ. Fund, 882 F.2d 621 (2d Cir. 1989).......................................................................................................5

Grayned v. City of Rockland, 408 U.S. 104 (1972) .................................................................................................................18

Greater New York Metropolitan Food Council v. McGuire, 6 F.3d 75 (2d Cir. 1993)...........................................................................................................19


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Hedges v. Obama, 724 F.3d 170 (2d Cir. 2013), cert. denied 134 S. Ct. 1936 (2014) ........................................4, 9

Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) .....................................................................................................8, 11, 14, 25

Int’l Primate Prot. League v. Admin’rs of Tulane Educational Fund, 500 U.S. 72 (1991) .....................................................................................................................4

Jones v. Schneiderman, 888 F. Supp. 2d 421 (S.D.N.Y. 2012) (“Jones I”) ...................................................................15

Jones v. Schneiderman, 974 F. Supp.2d 322 (S.D.N.Y. 2013) (“Jones II”) ........................................................... passim

Justice v. Kuhnappel, 985 F. Supp. 2d 334 (E.D.N.Y 2013) ........................................................................................6

Kampfer v. Cuomo, No. 13 CV 82, 2014 U.S. Dist. LEXIS 1479 (E.D.N.Y. Jan. 7, 2014) ......................................8

Keepers, Inc. v. City of Milford, 944 F. Supp.2d 129 (D. Ct. 2013) ............................................................................................15

Kendall v. Metro-North Commuter Railroad, No. 12 Civ. 6015, 2014 U.S. Dist. LEXIS 65001 (S.D.N.Y. May 12, 2014) ............................3

Koslow v. Horn, No. 09 Civ. 6597, 2010 U.S. Dist. LEXIS 144693 (S.D.N.Y. Dec. 14, 2010), R&R adopted 2012 U.S. Dist. LEXIS 99251 (S.D.N.Y. July 17, 2012)...........................................14

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ...............................................................................................................3, 5

McClellan v. Smith, 439 F.3d 137 (2d Cir. 2006).....................................................................................................22

New York v. Ferber, 458 U.S. 747 (1982) .................................................................................................................12

Perez v. Hoblock, 368 F.3d 166 (2d Cir. 2004).....................................................................................................13

Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244 (2d Cir. 2009).......................................................................................................3

Rose v. Locke, 423 U.S. 48 (1975) ...................................................................................................................15


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Rumsfeld v. United Technologies Corp., 315 F.3d 1361 (Fed. Cir. 2003)................................................................................................16

Skilling v. U.S., 561 U.S. 358 (2010) .................................................................................................................13

St. Germaine v. Circuit Ct. of Vilas County, 958 F.2d 75 (7th Cir. 1991) ......................................................................................................23

Summers v. Earth Island Institute, 555 U.S. 488 (2009) .......................................................................................................4, 5, 6, 9

U.S. v. Lachman, 387 F.3d 42 (1st Cir. 2004) ......................................................................................................16

U.S. v. Tracey, 967 F. Supp.2d 731 (S.D.N.Y. 2013) .................................................................................11, 14

U.S. v. Williams, 553 U.S. 285 (2008) ...........................................................................................................14, 20

United States v. Farhane, 634 F.3d 127 (2d Cir. 2011).....................................................................................................13

United States v. Morrison (“Morrison I”), 596 F. Supp. 2d 661 (E.D.N.Y. 2009) ......................................................23, 24

United States v. Morrison, 686 F.3d 94 (2d Cir. 2012) (“Morrison II”), cert. denied, 133 S. Ct. 955 (2013) .............23, 24

United States v. Rybicki, 354 F.3d 124 (2d Cir. 2003)...............................................................................................14, 22

United States v. Santos, 64 F.3d 41 (2d Cir. 1995) ........................................................................................................24

United States v. The Spy Factory, 951 F. Supp. 450 (S.D.N.Y. Jan, 9, 1997) ...............................................................................24

United States v. Yongwang, No. 11 Cr. 730, 2013 U.S. Dist. LEXIS 16153 (S.D.N.Y. Feb. 5, 2013) ................................20

Vermont Right to Life Committee, Inc. v. Sorrell, 221 F.3d 376 (2d Cir. 2000).....................................................................................................19

Village of Hoffman Estates v. Flipside, 455 U.S. 489 (1982) .............................................................................................................7, 24


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VIP of Berlin, LLC v. Town of Berlin, 593 F.3d 179 (2d Cir. 2010)...............................................................................................12, 16

Whitmore v. Arkansas, 495 U.S. 149 (1990) ...................................................................................................................8

Younger v. Harris, 401 U.S. 37 (1971) .....................................................................................................................8

United States Constitutions

First Amendment ...........................................................................................................................13

Article III .....................................................................................................................................1, 8

Federal Statutes

25 U.S.C. § 232 ..............................................................................................................................22

Federal Rules of Civil Procedure

Local Civil Rule 56.1 .......................................................................................................................3

Local Civil Rule 56.1(d) ..................................................................................................................3

Fed. R. Civ. Proc. 56(c)(2) ...............................................................................................................3

State Statutes

Civil Practice Law and Rules §§ 7801-7806 ...........................................................................................................................22

New York Alcoholic Beverage Control Law (“the 2001 Liquor Law”) § 106(6-c) ............................................................................................................... 1, 7, 9-10, 24 § 106(6-c)(a) ..............................................................................................................................9

New York Unconsolidated Laws § 8905-a ........................................................................................................................... passim § 8905-a(1) ............................................................................................................... 5, 14-15, 19 § 8905-a(3)(a) ..........................................................................................................................11 § 8907.......................................................................................................................................19 § 8931.......................................................................................................................................19

State Regulations

19 N.Y.C.R.R. § 205.1(a) and (l) ...................................................................................................19


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Other Authorities

1997 N.Y. Op. Atty. Gen. (Inf.) 1093, Opinion No. 97-39 ...........................................................23


Defendants ERIC T. SCHNEIDERMAN, in his official capacity as Attorney General of

the State of New York (“AG”), and DENNIS ROSEN, in his official capacity as Commissioner

and Chairman of the New York State Liquor Authority and JEANIQUE GREEN, in her official

capacity as Commissioner of the New York State Liquor Authority (collectively, “the SLA

Defendants), submit this memorandum in opposition to plaintiffs’ motion for summary

judgment. Summary judgment should be denied to plaintiffs and granted to defendants’ because

plaintiffs lack standing and their claim is fatally deficient.

PRELIMINARY STATEMENT

After decisions by this Court that dismissed most of their claims, the sixteen Plaintiffs in

this action now move for summary judgment for a declaration that New York’s statutory

prohibition of “combative sport,” as set forth in § 8905-a, New York Unconsolidated Laws (“§

8905-a”), as well as the law that prohibits similar conduct to licensees who serve alcohol for on-

premises consumption § 106(6-c), New York Alcoholic Beverage Control Law (“the 2001

Liquor Law”), are unconstitutionally vague as applied to them in three respects and to enjoin the

AG, the SLA Defendants and “any other” State officer, agency or entity (although unnamed)

from enforcing these statutes “against Plaintiffs’ live MMA events.”1

Plaintiffs have failed to sustain their burden of showing that they have Article III standing

to bring this action. The undisputed record demonstrates that they have not suffered any

concrete injury or are on the verge of suffering an injury. Specifically, thirteen of them have

stipulated that they will not present any evidence in support of such claims, apparently having

nothing to offer, and the remaining three - Zuffa LLC (“Zuffa”), Don Lilly (“Lilly”) and

Shannon Miller (“Miller”) – can show no actual or imminent injury from any alleged vagueness

of the challenged statutes in the three respects permitted by the Court, either because their 1 “MMA” refers to “mixed martial arts.”


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proposed conduct is clearly prohibited, is insufficiently concrete and dependent on the discretion

of third parties, or is under no threat of prosecution.

On the merits, plaintiffs attempt to support their factual assertions primarily with

inadmissible evidence, upon which summary judgment cannot be granted. Defendants have

moved to strike those assertions and the inadmissible evidence on which they are based. The

admissible evidence shows that plaintiffs’ motion should be denied and that summary judgment

should be granted against plaintiffs Zuffa, Lilly and Miller because their as-applied vagueness

challenge fails as a matter of law. The statutes in question provide reasonable notice of what

they prohibit, when read in the context of their purpose and manifest policy, and reasonable

guidance to enforcing officials to avoid arbitrary and discriminatory enforcement. Nor is there

evidence of inconsistent enforcement or interpretation by the enforcing officials sufficient to

invalidate the statutes. Because the Court should avoid, where possible, reaching constitutional

questions or construing state laws, abstention may be required as to certain issues of

interpretation.

The facts relevant to this motion are set forth in Defendants’ Response to Plaintiffs’

Statement of Undisputed Facts, and in the papers submitted in support of Defendants Motion for

Summary Judgment filed July 31, 2014 (Docket ## 92-97, 99-101). 2

2 Submitted herewith are Defendants’ Response to Plaintiffs’ Statement of Undisputed Facts (“Def. 56.1 Response”) and the declarations of Glenn Alleyne dated August 15, 2014 (“Alleyne Decl.”) and John M. Schwartz dated August 21, 2014 (“Schwartz 8/21/14 Decl.”). Incorporated by reference herein are the following documents submitted in support of defendants’ motion for summary judgment (Docket ##92-97, 99-101): (a) the declaration of John M. Schwartz dated July 31, 2014 (“Schwartz 7/31/14 Decl.”), as well as those of Stephen J. Maher dated July 21, 2014, Mark D. Frering dated July 25, 2014, Susan Watson dated July 31, 2014, Hugo Spindola dated July 29, 2014 and Linda M. Baldwin dated July 25, 2014. These declarations will be referred to as “[Name of Declarant] Decl.” (b) Defendants’ Statement of Undisputed Facts (“Def. 56.1”), and (c) Defendants Memorandum of Law in Support of Their Motion for Summary Judgment (“Def. SJ Mem.”)


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POINT I: AS DEMONSTRATED IN DEFENDANTS’ MOTION TO STRIKE, THE COURT SHOULD NOT CONSIDER EVIDENCE IN SUPPORT OF PLAINTIFFS’ MOTION THAT IS NOT ADMISSIBLE. Plaintiffs’ Statement of Undisputed Facts pursuant to Local Civil Rule 56.1 includes

many allegations that plaintiffs purport to support by documents, submitted as exhibits to

plaintiffs’ counsel’s declaration (“Levitt Decl.”), that would be inadmissible in evidence, because

of lack of authentication, hearsay, irrelevance, opinion or other objections. A summary

judgment motion must be supported by admissible evidence. Fed. R. Civ. Proc. 56(c)(2); Local

Civil Rule 56.1(d); see also Kendall v. Metro-North Commuter Railroad, No. 12 Civ. 6015, 2014

U.S. Dist. LEXIS 65001, at *16 (S.D.N.Y. May 12, 2014) (quoting Presbyterian Church of

Sudan v. Talisman Energy, Inc., 582 F.3d 244, 264 (2d Cir. 2009)) (“‘[O]nly admissible

evidence need be considered by the trial court in ruling on a motion for summary judgment’”).

Defendants have filed herewith a motion to strike such incompetent evidence, as this Court has

held is required. Arista Records LLC v. Lime Group LLC, No. 06 CV 5936, 2011 U.S. Dist.

LEXIS 35362, at *15 (S.D.N.Y. 2011) (Wood, J.). Defendants respectfully refer this Court to

defendants’ motion to strike.

POINT II: PLAINTIFFS HAVE FAILED TO SHOW THAT THEY HAVE STANDING TO BRING THIS SUIT. The moving party on a summary judgment motion “bears the burden of demonstrating

the absence of a material factual question.” Kendall, 2014 U.S. Dist. LEXIS 65001, at *5, citing

Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 456 (1992). As part of that

burden, a plaintiff must establish that he has suffered a concrete injury or is on the verge of

suffering one. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). Plaintiffs cannot

show, as they are required to do, that they are threatened with an ‘injury in fact’ that is concrete

and particularized; that the threat is actual and imminent, not conjectural or hypothetical; that the


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threat is fairly traceable to the challenged action of the defendant; and that it is likely that a

favorable judicial decision will prevent or redress the injury. Summers v. Earth Island Institute,

555 U.S. 488, 493 (2009); accord Hedges v. Obama, 724 F.3d 170, 188 (2d Cir. 2013), cert.

denied 134 S. Ct. 1936 (2014); see also Def. SJ Mem. at 3-10. Plaintiffs have failed to come

forward with evidence sufficient to overcome their lack of standing as demonstrated in

Defendants’ motion for summary judgment.

A. Plaintiff Zuffa

Plaintiffs allege that Zuffa would promote MMA events in New York “[b]ut for

statements by state officials that MMA is unlawful,” and that it is economically damaged by its

inability to promote MMA matches in New York. Plaintiffs’ Statement of Material Facts

(Docket # 88, “Pl. 56.1”) ¶¶ 70-74. Zuffa cannot trace its alleged injury to the alleged vagueness

of § 8905-a in any of the three issues now before the Court, however. To have standing in a pre-

enforcement constitutional challenge, a plaintiff must show that its alleged injury “is “fairly

traceable to the challenged action of the defendant.” Clapper v. Amnesty International U.S.A.,

___U.S. ___, 133 S. Ct. 1138, 1147 (2013) (emphasis added); accord Hedges, 724 F.3d at 188. If

the challenged statute is allegedly unconstitutional only as to others, the mere allegation that a

plaintiff might make more money if the activity were legal does not confer standing. Rather

“standing is gauged by the specific common-law, statutory or constitutional claims that a party

presents,” which requires “careful judicial examination of a complaint's allegations to ascertain

whether the particular plaintiff is entitled to an adjudication of the particular claims asserted.”

Int’l Primate Prot. League v. Admin’rs of Tulane Educational Fund, 500 U.S. 72, 77 (1991)

(quoting Allen v. Wright, 468 U.S. 737, 752 (1984)). “Federal courts as a general rule allow

litigants to assert only their own legal rights and interests, and not the legal rights and interests of


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third parties.” Farrell v. Burke, 449 F.3d 470, 494 (2d Cir. 2006).

As demonstrated in Def. SJ Mem. at 5-7, Zuffa has no standing to challenge § 8905-a

because of any alleged vagueness in the Exempt Organization clause in § 8905-a(1). It has

communicated with the World Kickboxing Association (“WKA”), which has been accepted by

the New York State Athletic Commission (“SAC”) as an Exempt Organization, “[a]bout the

possibility of the WKA sanctioning a UFC event,” Schwartz 7/31/14 Decl. Ex. B (Epstein Tr.)

45:11-16, but they were “very preliminary discussions” with “no result.” Id. 45:11-16. Zuffa

has no written contract with the WKA on this subject, and although it believes the WKA was

“agreeable” to the concept of coordinating with Zuffa to present such an event, no decision had

been made on where or when such an event would take place. Id. 83:19 – 84:24. “‘Such “some

day” intentions – without any description of concrete plans, or indeed even any specification of

when the some day will be – do not support a finding of the “actual or imminent” injury that our

cases require.’” Summers, 555 U.S. at 496 (quoting Lujan, 504 U.S. 555, 564 (1992)).

Nor can Zuffa show the third prong of the standing test, namely that a favorable judicial

decision would redress the alleged injury. Zuffa’s need for cooperation from the WKA, including

agreement on the financial arrangements, venues, dates, advertising and credit makes the

possibility that Zuffa will receive any direct relief from this lawsuit “remote, fluctuating and

uncertain” because it “depends on the unfettered choices made by independent actors not before

the courts and whose exercise of broad and legitimate discretion the courts cannot presume either

to control or predict.” ASARCO, Inc. v. Kadish, 490 U.S. 605, 614-15 (1989); see also Fulani v.

League of Women Voters Educ. Fund, 882 F.2d 621, 632 (2d Cir. 1989) (“[P]rospects for redress

from a judicial order are diminished by the independent actions of parties not before us”); Justice

v. Kuhnappel, 985 F. Supp. 2d 334, 337 (E.D.N.Y 2013) (where requested injunctive relief can


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only be provided by a third party beyond power of court to bind, the alleged injury cannot be

redressed by a favorable court decision).

Zuffa’s standing to challenge § 8905-a’s application to professional MMA on Indian

reservations is even more tenuous. It has never promoted a mixed martial arts event on an Indian

reservation in New York, Schwartz 7/31/14 Decl. Ex. B (Epstein Tr.) 61:4-7, but only is

“[p]otentially” interested in doing so. Id. 67: 7-10. On this motion, it has retreated even from

that position. See Epstein Decl. ¶ 23 (“If professional MMA was permitted to occur on Native

American land in New York, Zuffa would consider promoting an event in such a location . . . .”).

This claim “does not satisfy the requirement that threatened injury must be certainly impending”

because the alleged injury “relies on a highly attenuated chain of possibilities.” Clapper, 133 S.

Ct. at 1148. Not only would such an event depend on the agreement of the tribe involved, but it

is just the kind of “some day” intention condemned in Summers, 555 U.S. at 496.

In neither their pleading nor in their present motion do plaintiffs claim that Zuffa has any

plans to conduct amateur MMA events in New York. Second Amended Complaint (Docket # 54,

“2d Am. Complaint”) ¶ 383; Pl. 56.1 generally. This is hardly surprising, since Zuffa’s business

does not include the promotion or presentation of any amateur contests or exhibitions. Schwartz

7/31/14 Decl. Ex. B (Epstein Tr.) 43:17-20. Its fighters get paid; the mixed martial arts events

promoted under the UFC trade name are professional. Id. 19:3-12. Its business is the promotion

of professional MMA matches, the primary activity banned by the statute. No matter how one

defines the terms “professional” or “amateur,” “there is little doubt that a public event in which

the participants fight for pay qualifies as a professional match.” Jones II, 974 F. Supp. 2d at 346.

“One to whose conduct a statute clearly applies may not successfully challenge it for vagueness.”

Village of Hoffman Estates v. Flipside, 455 U.S. 489, 495 (1982). Zuffa lacks standing to


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challenge § 8905-a based on any alleged vagueness of the law as it concerns amateur events.

Plaintiffs attack the 2001 Liquor Law, Pl. SJ Mem. at 23-25, which prohibits certain

conduct to licensees for on-premises consumption of alcoholic beverages, but its purported facts

on this subject include no reference to Zuffa (or to any other plaintiff). See Pl. 56.1 ¶¶321-352.

Plaintiff Zuffa is not a licensee for on-premises consumption of alcoholic beverages, nor has it

ever applied for a liquor license or permit. Schwartz 7/31/14 Decl. Ex. B (Epstein Tr.) 56:7-10.

“Federal courts as a general rule allow litigants to assert only their own legal rights and interests,

and not the legal rights and interests of third parties.” Farrell, 449 F.3d at 494. Thus, Zuffa has

no standing to challenge the constitutionality of the 2001 Liquor Law, which only regulates the

conduct of such licensees.

B. Plaintiffs Lilly and Miller

Plaintiffs Lilly and Miller base their as-applied vagueness challenge only on the

application of that statute to amateur MMA events in New York. 2d Am. Complaint ¶ 383.

Since May 2012, however, Lilly has promoted seven amateur MMA events in New York, without

objection from the New York State Athletic Commission (“SAC” or “Commission”) or the AG.

Schwartz 7/31/14 Decl. Ex. B (Lilly Tr.) 42:19-47:16. Miller produced a “Cage Wars” amateur

kickboxing event in 2010 with the concurrence of the SAC and he has produced 23 more “Cage

Wars” events in New York. Schwartz 7/31/14 Decl. Ex. D (Miller Tr.) 26:10 -30:9. After early

2012, all of such events were amateur MMA events, without interference from or contact with

the SAC. Id. 36:7-38:10. The SAC’s stated position in this action is “that amateur MMA

matches or exhibitions are not covered by § 8905-a, but may violate other New York criminal

statutes, such as those dealing with reckless endangerment, endangering the welfare of a child or

assault.” Baldwin Decl. ¶ 3. The SAC has consistently been explaining that position in


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responding to inquiries since before Lilly or Miller began promoting amateur MMA events in

2012. See Watson Decl. Exs. A, B. The Attorney General’s office (“OAG”) has not prosecuted

anyone under § 8905-a, Maher Decl. ¶ 6; in the few investigations it has undertaken at the

request of a State agency, it declined to prosecute under § 8905-a. Id. ¶¶ 5-6.

To establish Article III standing, “threatened injury must be certainly impending to

constitute injury in fact,’ and . . . ‘allegations of possible future injury’ are not sufficient.”

Clapper, 133 S.Ct. at 1147 (quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990)) (emphasis

in original). “As a preenforcement vagueness challenge, Plaintiffs must demonstrate that they

face ‘a credible threat of prosecution.’” Jones II, 974 F. Supp.2d at 55-56 (quoting Holder v.

Humanitarian Law Project, 561 U.S. 1, 15 (2010)). The record establishes that Lilly and Miller

are not threatened with prosecution in their promotion of amateur MMA events, nor have they

been subjected to uncertainty by any state agency as to whether they are in any danger of such

prosecution. Their professions of fear that the State might change its mind, Pl. 56.1 ¶ 280(m), are

“too speculative for Article III purposes.” Clapper, 133 S. Ct. at 1147. “[P]ersons having no

fears of state prosecution except those that are imaginary or speculative, are not to be accepted as

appropriate plaintiffs” in constitutional challenges to criminal statutes. Younger v. Harris, 401

U.S. 37, 42 (1971); see also Kampfer v. Cuomo, No. 13 CV 82, 2014 U.S. Dist. LEXIS 1479, at

*12-13 fn. 8 (E.D.N.Y. Jan. 7, 2014) (noting that plaintiff cannot make an as-applied challenge

to a criminal statute “because it has not been applied to him, nor has he shown, or even alleged, a

genuine threat of enforcement.”). Neither Lilly nor Miller has shown that enforcement of §

8905-a against either of them is “even remotely likely,” that the State “intends or has threatened”

to prosecute them for their amateur events, or that “individuals even remotely similarly situated

have been subjected to” prosecution. See Hedges, 724 F.3d at 202.


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Neither Lilly nor Miller claims to have any injury from any alleged vagueness of § 8905-

a with respect to Exempt Organizations. 2d Am. Complaint ¶ 383. Lilly received no response to

his inquiry to the WKA in 2013 about sanctioning an MMA event, Schwartz 7/31/14 Decl. Ex. C

(Lilly Tr.) 55:8-56:3,3 or to his inquiries addressed to other entities on the Exempt Organizations

list, Id. 58:23-59:6. At the time of his inquiries, he had not chosen a venue or date for the event.

Id. 57:3-57:13. When Miller suggested that he may be interested in having an MMA event

sanctioned by an approved organization, he specified that his interest concerned amateur MMA

events. Id. Ex. D (Miller Tr.) at 39:25-40:13. Neither of these plaintiffs can show a concrete and

particularized injury from any alleged vagueness of the Exempt Organization language in §

8905-a sufficient to demonstrate standing to sue.

Neither Lilly nor Miller has alleged that any as-applied constitutional challenge of §

8905-a with respect to professional MMA events on an Indian Reservations applies to him. 2d

Am. Complaint ¶383. Plaintiff Lilly concedes that he has never promoted an event (professional

or amateur) on an Indian Reservation for personal reasons, Schwartz 7/31/14 Decl. Ex. C (Lilly

Tr.) at 20:9-20:16, 22. Plaintiff Miller has never attempted to hold an event on an Indian

reservation, Schwartz 7/31/14 Decl. Ex. D (Miller Tr.) 44:20-22. Neither one of them even

comes close to an actual or imminent injury on this ground, and thus both lack standing to

maintain such claims. Clapper, 133 S. Ct. at 1147; Summers, 555 U.S. at 496.

As the text of the 2001 Liquor Law makes clear, the only persons or entities that are

subject to that statute are “retail licensees for on-premises consumption.” N.Y. Alco. Bev. Cont.

Law § 106(6-c)(a). Neither Lilly nor Miller has ever held or applied for such a license. Schwartz

7/31/14 Decl. Ex. C (Lilly Tr.) 73:15-74:3, Ex. D (Miller Tr.) 42-43. They are not subject to its

3 Lilly’s testimony on this point contradicts the Second Amended Complaint, which alleges that in response to his inquiry, the WKA told him “that the event would be illegal.” 2d Am. Complaint ¶ 283.


10

regulation and do not have standing to assert an as-applied constitutional challenge based on the

imagined injury that might be suffered by unidentified others – presumably the un-named arenas,

gyms or auditoriums in which their promoted events might be held. “Federal courts as a general

rule allow litigants to assert only their own legal rights and interests, and not the legal rights and

interests of third parties.” Farrell, 449 F.3d at 494.

C. The Remaining Plaintiffs

Plaintiffs and defendants entered into a Stipulation dated January 30, 2014, providing that

the plaintiffs Jones, Carano, Edgar, Hamill, Stann, Hobeika, Beth Hurrle, Donna Hurrle,

Kardian, Lozito, Owings, Reitz, and Santiago (“the Stipulating Plaintiffs”), “will present no

testimony or other evidence in this case, oral or written, in support of any of the as-applied

vagueness claims.” Schwartz 7/31/14 Decl. Ex. A. In reliance on that agreement and

representation, defendants agreed not to take the depositions of those plaintiffs. Id. The

Stipulating Plaintiffs thus can present no evidence that they have suffered any concrete injury or

are on the verge of suffering one because of the vagueness of either § 8905-a or the 2001 Liquor

Law as applied to their conduct. Summary judgment must be granted dismissing the Second

Amended Complaint as to them.

POINT III: § 8905-a IS NOT UNCONSTITUTIONALLY VAGUE Plaintiffs now move for summary judgment on the Third “Cause of Action” in their

Second Amended Complaint, which retains all the facial and as-applied vagueness claims that

this Court dismissed in Jones II, although they appear to be asserting against the AG only the as-

applied claims that survived that decision. See 2d Am. Complaint at 141 fn. 160. Their

demands for relief, however, still seek a broad declaration that “the Professional Combative

Sport Ban” is “unconstitutionally vague as applied to Plaintiffs and on its face” and an injunction


11

preventing “Defendant [presumably the AG] or any other officer, department, or entity of the

State of New York” from enforcing the law “against Plaintiffs’ live MMA events.” Id., ad

damnum ¶ h. They try to support their arguments, however, with voluminous and mostly

inadmissible purported evidence of the history of MMA, as well as the personal opinions and

positions of various state employees and others on hypothetical scenarios and conduct that is not

the “Plaintiffs’ live MMA events,” to which they say their claim relates. Defendants have

moved to strike the inadmissible evidence. Such objections to admissibility as hearsay, lack of

authentication and opinion evidence, dealt with in defendants’ motion to strike, will not be

repeated here, although the arguments below refer to the irrelevance and immateriality of much

of plaintiffs’ purported evidence.

A. Professional MMA Events Sponsored By Exempt Organizations

Plaintiffs contend that the laws with criminal penalties are subject to a stricter vagueness

test, Pl. SJ Mem. at 7-8, but they fail to take into consideration the nature of the crime in

question. Section 8905-a(3)(a) makes “[a] person who knowingly advances or profits from a

combative sport activity” guilty of a misdemeanor and, if repeated within five years, a felony. §

8905-a(3)(a) (emphasis added). This knowledge requirement “reduces any potential for

vagueness.” Holder, 561 U.S. at 21; see also U.S. v. Tracey, 967 F. Supp.2d 731, 744 (S.D.N.Y.

2013) (reviewing law).

Contrary to plaintiffs’ contention, Pl. SJ Mem. at 11-12, the text of the Exempt

Organization clause in § 8905-a does not support plaintiffs’ reading. The listed Exempt

Organizations appear from their names to be devoted to long-recognized traditional martial arts:

judo, tae kwon do, karate or kenpo. The text then authorizes the SAC to promulgate regulations

to establish a process by which organizations could be added to or removed from the list, which


12

process must include the consideration of whether the organization has as its primary purpose

instruction in self-defense techniques, requires the use of hand, feet and groin protection and has

an established set of rules that require immediate termination of the match in the event of severe

punishment or danger of serious physical injury. This language suggests that the exemption was

intended to favor responsible organizations that specialized in such traditional sports and that

complied with the described purpose, protection and rules. See Watson Decl. ¶ 6. MMA, as

practiced by plaintiff Zuffa, does not comply with these factors: protection of the feet is in fact

forbidden, and the referee has discretion as to whether and when to stop a fight (he may but is not

required to take advice from the ringside physician). See Levitt Decl. Ex. 27 at 5. Although it also is

in the gym business, Zuffa’s business is “mainly a global media business.” Id. Ex. 26 at 18.

Plaintiffs contend that MMA is today a different sport from what the Legislature banned, Pl. SJ

Mem. at 12-13, but even if that were so (a contention that defendants dispute), it still is not what the

Legislature intended to exempt when it drafted the Exempt Organizations list.

Much of plaintiffs’ argument with respect to this issue is devoted to hypothetical

discussions of differences among State officials in their personal interpretations of how the

Exempt Organizations clause might be applied to sports that are not professional MMA as

practiced by Zuffa, such as kickboxing, Muay Thai, San Da and Brazilian jiu-jitsu, and how the

term “single-discipline” might be applied to them. Pl. SJ Mem. at 10-17. The expertise of OAG

or SAC personnel with respect to these other sports is not the issue here, however. In an as-

applied vagueness challenge, “‘[t]he evaluation of whether [a statute] . . . is vague as applied to

[a litigant] must be made with respect to [the litigant’s] actual conduct and not with respect to

hypothetical situations at the periphery of the [statute’s] scope.’” VIP of Berlin, LLC v. Town of

Berlin, 593 F.3d 179, 189 (2d Cir. 2010) (quoting Perez v. Hoblock, 368 F.3d 166, 175 (2d Cir.

2004)); see also New York v. Ferber, 458 U.S. 747, 767 (1982) (vagueness challenges must be


13

evaluated based on the particular application of the statute and not “on the ground that [the

statute] may conceivably be applied unconstitutionally to others in situations not before the

Court”) ; Jones II, 974 F. Supp. 2d at 345 (“’[i]n the absence of First Amendment concerns,’

which this Court has determined are not implicated by professional MMA, ‘courts generally

view vagueness challenges to a statute as applied to the defendant's case’” (quoting United

States v. Farhane, 634 F.3d 127, 138 (2d Cir. 2011))).

In Farrell, an as-applied and facial vagueness challenge of the revocation of the plaintiff’s

parole for possessing “pornographic material” in violation of a condition of his parole, then-

Judge Sotomayor concluded that whether or not the term “pornography” was inherently vague

and “[n]one of the parties, witnesses or relevant government entities seemed to agree on the

meaning of the term,” the material found in Farrell’s possession “fit comfortably” within the

views of each of them. 449 F.3d at 490-492. The court further concluded that “[w]here a statute

provides insufficient general guidance,” if the conduct at issue falls squarely in “the core of what

is prohibited,” then “there is no substantial concern about arbitrary enforcement because no

reasonable enforcing officer could doubt the law’s application in the circumstances.” Id. at 493-

94; accord Skilling v. U.S., 561 U.S. 358, 412 (2010); Dickerson v. Napolitano, 604 F.3d 732,

746-48 (2d Cir. 2010).

Thus, the alleged differences among SAC employees, or between them and the OAG

witness, in their interpretation of the Exempt Organization provision as it relates to judo, or

kickboxing, or San Da or any sport other than professional MMA, see Pl. SJ Mem. at 6,10-11,

14-15, is immaterial. The SAC has consistently taken the position, certainly since 2002 if not

longer, that the Exempt Organizations provision does not permit a professional MMA event in

New York, even if sanctioned by an Exempt Organization. Spindola Decl. ¶ 7; Watson Decl. ¶


14

5; Baldwin Decl. ¶ 3.4 See also Levitt Decl. Ex. 12 (Leary Tr.) 188-189. The relevant

enforcement bureau of the Attorney General’s Office (“OAG”) has never had occasion to

interpret or act upon the term “martial arts” as it is used in § 8905-a(1), either in connection with

the Exempt Organizations list or otherwise. Maher Decl. ¶ 8. Accordingly, in its function as a

law enforcement agency, the OAG has not had occasion to take a position on the meaning of that

term. Id; see also Levitt Decl. Ex. 7 (Maher Tr.) 168-171. Regardless of the statute’s clarity in

other applications, where “the statutory terms are clear in their application to the [plaintiffs’]

conduct,” the vagueness challenge must fail.” U.S. v. Lahey, 967 F. Supp. 2d 731, 745 (S.D.N.Y.

2013) (quoting Holder, 561 U.S. at 21).

Even if State employees differed on their interpretation of the statute in some relevant

way (which they have not), “[t]he vagueness doctrine does not suggest that all courts and state

officials must agree on a specific construction of a statute in order for it to meet the fair notice

requirement.” Koslow v. Horn, No. 09 Civ. 6597, 2010 U.S. Dist. LEXIS 144693 at *20

(S.D.N.Y. Dec. 14, 2010), R&R adopted 2012 U.S. Dist. LEXIS 99251 (S.D.N.Y. July 17,

2012). Indeed, if differences in statutory interpretation from one court to another rendered such

statutes unconstitutionally vague, there would be “a frightful number of fatally vague statutes

lurking about.” United States v. Rybicki, 354 F.3d 124, 143 (2d Cir. 2003). Many statutes pose

challenges in interpretation to personnel who enforce them, as well as to courts, but “perfect

clarity and precise guidance have never been required.” U.S. v. Williams, 553 U.S. 285, 304

(2008). “‘The prohibition against excessive vagueness does not invalidate every statute which a

reviewing court believes could have been drafted with greater precision. . . . Many statutes will

have some inherent vagueness, for in most English words and phrases there lurk uncertainties.’” 4 Since the SAC has no power to prosecute or even sue a violator of this criminal statute, it is not an “enforcement” agency with respect to it. However, to the extent its public positions and advice may be considered enforcement, it has never varied on this issue.


15

Evergreen Association, Inc. v. City of New York, 740 F.3d 233, 244 (2d Cir. 2014) (quoting

Rose v. Locke, 423 U.S. 48, 49-50 (1975)). As the Supreme Court noted in Rose, “[e]ven

trained lawyers may find it necessary to consult legal dictionaries, treatises, and judicial opinions

before they may say with any certainty what some statutes may compel or forbid.” Id. at 50.

Thus, for example, the alleged inability of deposition witnesses from either the OAG or

the SAC to explain the origin or scope of the term “single-discipline,” see Pl. SJ Mem. at 11, 16-

17, does not support plaintiffs’ vagueness claim, where the clear policy of the SAC has

consistently been that, unlike the traditional single-discipline martial arts as practiced by the

Exempt Organizations listed in § 8905-a(1), professional MMA is banned in New York, even if

sanctioned by an Exempt Organization. Spindola Decl. ¶¶ 4-7; Watson Decl. ¶¶ 5-7; Baldwin

Decl. ¶¶ 3. See Keepers, Inc. v. City of Milford, 944 F. Supp.2d 129, 158-59 (D. Ct. 2013) (that

City Attorney produced as 30(b)(6) witness was “stumped” at deposition by surprise

hypotheticals does not support vagueness claim in face of official city position as set out in

affidavit).5

Plaintiffs’ reliance on the personal opinions of SAC and OAG lawyers, independent of

their agency’s position, Pl. SJ Mem. at 9, 18, is misplaced. It is hardly surprising that a talented

agency lawyer may have his or her own personal analysis of the possible readings of a statute –

that is why determination of agency positions frequently require internal discussion – but both

the notice and guidance prongs of the vagueness standard must depend on the statute’s

5 Plaintiffs also argue that MMA is no more mixed a martial art than several other sports that they say the SAC treats as “permissible in New York.” Pl. SJ Mem. at 17-18. In fact, to the extent the SAC was aware of such events, they were either kickboxing or muay thai, sports that the SAC believes are traditional single-discipline martial arts that were sanctioned by an Exempt Organization, and although the SAC had no power to allow or disallow them, it determined that they complied with § 8905-a. Alleyne Decl. ¶¶11-23. Although plaintiffs cast this argument as evidence of vagueness of the statute, it appears to really be an equal protection attack on discriminatory treatment, a claim that was dismissed by this Court twice. Jones II, 974 F. Supp.2d at 347-349; Jones I, 888 F. Supp. 2d at 427-431.


16

interpretation as reflected in agency action or public communication, rather than such internal

discussion or private thought. Cf. U.S. v. Lachman, 387 F.3d 42, 54 (1st Cir. 2004) (in light of

rules for making agency substantive rules and statements of general policy, “[t]he non-public or

informal understandings of agency officials concerning the meaning of a regulation are thus not

relevant”); see also Rumsfeld v. United Technologies Corp., 315 F.3d 1361, 1369 (Fed. Cir.

2003) (testimony of former members of Cost Accounting Standards board as to understanding of

regulations irrelevant to construction of those regulations).6 Plaintiffs’ repeated posing of

hypotheticals to these witnesses to elicit their opinions on the possible coverage of the provision

to conduct other than that of the actual litigants, see, e.g., Pl. SJ Mem. at 10, 11, 15, 16, 17, is

improper and cannot be considered in this case. VIP of Berlin, 593 F.3d at 189.

Thus, without their reliance on hypotheticals, their detours into other sports and their

intrusion into the private thoughts of State employees, plaintiffs cannot overcome the evidentiary

record, which demonstrates that the law enforcement personnel of the OAG have never had

occasion to interpret or enforce the Exempt Organization provision, Maher Decl. ¶ 8, and that the

SAC has consistently taken the position that the clause did not permit an Exempt Organization to

sanction an MMA event in New York, Spindola Decl. ¶¶ 4-7; Watson Decl. ¶¶ 5-7; Baldwin

Decl. ¶¶ 3. Its treatment of the other sports to which plaintiff has referred is irrelevant, but it has

also been consistent, based on the Commission’s understanding of those sports. See Alleyne

Decl. ¶¶11-28.

The only “blip on the screen” in that consistent history to which plaintiffs point is

statements made by the OAG litigation counsel in the course of this case. They even repeat the 6 Plaintiffs’ questioning of Stephen Maher, the OAG’s 30(b)(6) witness, about his personal reading of the Exempt Organization clause and other aspects of the statute’s definition of “martial arts,” see, e.g., Pl. SJ Mem. at 18, Levitt Decl. Ex. 7 (Maher Tr.) 58-61, is even more clearly irrelevant, since apart from this action, the OAG had never been referred a matter that required it to interpret the definition of martial arts as used in § 8905-a. Id. 168-170; Maher Decl. ¶ 8. In its role as a law enforcement agency, it has no position on the meaning of the clause. Id.


17

false assertion they have made previously that the AG’s Reply Memorandum on the First

Motions to Dismiss herein (Docket #26) at page 6 “took . . . the position” that plaintiffs would be

allowed to promote a professional MMA event in New York it were sanctioned by one of the

Exempt Organizations. Pl. SJ Mem. at 8. Defendants responded to this baseless argument in

their Memorandum of Law in support of their motion to dismiss the First Amended Complaint

almost two years ago. Docket #37 at 20. That response need not be repeated here.

As to the statements by counsel for the AG at the oral argument of the motion to dismiss

the First Amended Complaint, Pl. SJ Mem. at 8-9, promptly upon being advised of these

statements by the OAG litigation counsel, the General Counsel of the New York Department of

State (“DOS”), Susan Watson, Esq., advised the OAG of her disagreement with the position

expressed as contrary to the intent of the statute. Watson Decl. ¶ 7. Counsel for the AG promptly

advised Magistrate Judge Pitman (before whom a settlement conference had been scheduled) of

the correction, then advised this Court by letter dated March 8, 2013. See Endorsed Order dated

March 12, 2013 (Docket # 44), by which the Court directed the parties to submit supplemental

briefing on the issue. The AG submitted its Supplemental Memorandum of Law in Support of

His Motion to Dismiss the First Amended Complaint (“Def. Suppl. Mem.”) on March 22, 2013

(Docket #46). The mistaken remarks by litigation counsel at oral argument on an issue that the

OAG had never had occasion to address in its enforcement of the statute, Maher Decl. ¶ 8, which

were promptly corrected and prejudiced no one, are not evidence of inconsistent enforcement,

nor are they evidence of the vagueness of the clause, on which the SAC’s position has been

consistent.

Defendants respectfully refer to Def. Suppl. Mem. (Docket # 46), in which the SAC/DOS

position on the Exempt Organization issue that was communicated to and adopted by the AG, is


18

set forth. In both the present motion and in defendants motion for summary judgment also now

before the Court, the construction of the Exempt Organization clause in § 8905-a is “a delicate

task, for it is not within [the court’s] power to construe or narrow state laws.” Grayned v. City of

Rockland, 408 U.S. 104, 110 (1972). Here, New York law provides the authority for such a

construction, since the New York courts have strongly adopted the rule that the legislative

history of a statute should be examined, notwithstanding its clear language, to ascertain and give

effect to the intention of the Legislature. See Def. SJ Mem. (Docket # 93) at 13-14; Def. Suppl.

Memo. (Docket # 46) at 5-7. The legislative history of § 8905-a shows that whatever its intent

might have been with respect to other martial arts or styles of fighting (e.g., kickboxing or muay

thai), the intent of the Legislature in 1997 - indeed, its fundamental purpose - was to ban

professional matches or exhibitions of the style of personal combat that was then known as

Ultimate Fighting or Extreme Fighting, which its promoters now have repackaged as Mixed

Martial Arts,7 and that the listed Exempt Organizations were not intended to be free to sponsor

the very Ultimate Fighting that the statute was enacted to prevent.8 Def. Suppl. Mem. (Docket

#46) at 3-5; Def. SJ Mem. (Docket # 93) at 13-14. Indeed, construing the statute in that manner

would undermine the statute’s stated purpose and would circumvent the total ban of mixed

martial arts.

This Court has expressed skepticism as to the value of § 8905-a’s legislative history,

given the changes in MMA since its enactment. Jones II, 974 F. Supp. 2d at 341. Where an

otherwise acceptable construction would raise constitutional problems, however, the Court “must

7 Plaintiff Zuffa, LLC purchased the Ultimate Fighting Championship business and trademark from its original promoters in 2001. See 2d Am. Complaint ¶ 50. 8 See the legislative history of § 8905-a that was submitted to the Court by plaintiffs as Exhibit 4 at the oral argument of defendant’s second motion to dismiss on February 13, the Supplemental Declaration of John M. Schwartz dated March 22, 2013 (Docket number 47) and the AG’s Supplemental Memorandum of Law in Support of His Motion to Dismiss the First Amended Complaint (Docket #46, “Def. Suppl. Memo.”) submitted therewith.


19

construe statutes, where necessary and possible, to avoid serious constitutional issues.” Field

Day, LLC. v. County of Suffolk, 463 F.3d 167, 182 (2d Cir. 2006). New York authority

suggests that if presented with the issue, the New York courts would be likely to interpret the

Exempt Organizations provision in § 8905-a in accordance with the statute’s “manifest policy

intended to be promoted” as shown in the legislative history, an interpretation that would avoid

the constitutional issue. This Court may render a decision on the federal constitutional question

unnecessary by resolving this issue on the basis of the state law cited above, Allstate Ins. Co. v.

Serio, 261 F.3d 143, 150 (2d Cir. 2001), or may abstain from decision of the constitutional issue

if (1) the state statute at issue is unclear; (2) resolution of the federal constitutional issue depends

on the interpretation of the state law; and (3) the law is susceptible to an interpretation by a state

court that would avoid or modify the federal constitutional issue.” Vermont Right to Life

Committee, Inc. v. Sorrell, 221 F.3d 376, 385 (2d Cir. 2000). Indeed, “abstention in some

circumstances may be appropriate in suits that challenge a state statute on vagueness grounds.”

Greater New York Metropolitan Food Council v. McGuire, 6 F.3d 75, 77 (2d Cir. 1993). See

Def. SJ Mem. (Docket # 93) at 20-21. Plaintiffs’ summary judgment motion as to the Exempt

Organizations clause should be denied.

B. Amateur MMA Events in New York

§ 8905-a expressly limits its definition of the banned “combative sport” to a “professional

match or exhibition,” § 8905-a(1). It contains no definition of the word “professional,” and

plaintiffs contend that State officials “cannot agree” on what it means. Pl. SJ Mem. at 19-20.

Definitions of both “professional” and “amateur” appear in the Commission’s enabling statutes,

however, as well as in the Commission’s regulations. N.Y. Unconsol. Laws, §§ 8907, 8931; 19

N.Y.C.R.R. §205.1(a) and (l). Although these definitions by their terms apply to boxing, the


20

SAC’s position has been that these commonly understood terms to combative sport was

reasonable. Watson Decl. ¶ 10. Even before Ms. Watson’s tenure as DOS General Counsel

(2007-2013), Mr. Spindola, who was General Counsel of the SAC from 2002 to 2007, applied

the same standard. Spindola Decl. ¶ 10. Mr. Spindola determined that the use of those

definitions was appropriate because they were part of the same body of law as § 8905-a, were

accessible to the public and were familiar to most of the martial art promoters, many of whom

were also boxing promoters. Id. The requirement of consistency alone would justify the

Commission’s reference to these definitions in interpreting § 8905-a.9

Moreover, the words “professional” and “amateur” have ordinary dictionary meanings,

see Jones II, 974 F. Supp.2d at 49-50, and have meanings as applied to the conduct of Zuffa,

Lilly and Miller such that “ordinary people using common sense could grasp the nature of the

prohibited conduct.” United States v. Yongwang, No. 11 Cr. 730, 2013 U.S. Dist. LEXIS 16153,

at *57 (S.D.N.Y. Feb. 5, 2013). Although this Court noted that plaintiffs had on the last motion

to dismiss raised “serious questions regarding the utility of such generic definitions in

differentiating close cases,” Id. at 50, neither Zuffa, Lilly nor Miller are involved in any such

close cases.10 Lilly and Miller and Zuffa all regard getting paid as defining an MMA fighter as

professional. Levitt Decl. Ex. 24 (Lilly Tr.) at 63:4-8; Id. Ex. 33 (Miller Tr.) at 35:17-24; Id. Ex.

26 (Epstein Tr.) at 19:13-20. This Court has concluded that “there is little doubt that a public

event in which the participants fight for pay qualifies as a professional match.” Jones II, 974 F.

Supp. 2d at 346. Zuffa always pays its fighters. Schwartz 7/31/14 Decl. Ex. B (Epstein Tr.) at

38:21-40:6. Lilly and Miller have been conducting amateur fights for several years without

9 Plaintiffs contend that Lilly was told by Mr. Alleyne of the SAC that a professional boxer could be deemed an amateur for MMA, Pl. 56.1 ¶ 270(b). Mr. Alleyne denies such a conversation. Alleyne Decl. ¶ 30. 10 “Close cases can be imagined under virtually any statute. The problem that poses is addressed, not by the doctrine of vagueness, but by the requirement of proof beyond a reasonable doubt.” Williams, 553 U.S. at 306.


21

interference from the SAC. Id. Ex. C (Lilly Tr.) at 42:19-43:2; Id. Ex. D (Miller Tr.) at 29:16-

30:9. Thus, whether or not the term “professional” is vague in other respects, Zuffa’s regular

conduct “fits within any reasonable understanding of the term,” Farrell, 449 F.3d at 490, and

Lilly’s and Miller’s conduct with respect to MMA does not.11

The interpretation of § 8905-a among State officials with respect to amateur MMA events

has been consistent. Any differences in approach appear to be the product of changes over time

in the number of amateur events that came to SAC’s attention, as well as personality differences.

See Spindola Decl. ¶ 9; Watson Decl. ¶¶ 8-9, 11. The AG has never prosecuted anyone for

violation of § 8905-a, and none of the three matters it was asked to investigate that concerned

this statute resulted in prosecution thereunder because of the statutory definition of the crime as

“professional” matches or exhibitions. Maher Decl. ¶¶ 5-6. From 2002 to 2007, Mr. Spindola,

read the statute to focus on professional and since inquiries about amateur MMA events were

rare, he assumed a proposed event was professional unless he received satisfactory proof of its

amateur status, proof that he never received. See Spindola Decl. ¶ 9. During the 2008-2013

period, amateur MMA events remained rare in the early years, so although SAC responses to

inquiries sometimes did not distinguish between professional and amateur. Watson Decl. ¶8. As

“underground” mixed martial arts began coming to its attention, the Commission’s responses

reflected its interpretation of § 8905-a that amateur events were not covered by that law but

created serious risk of injury and could violate other New York laws. Id. ¶ 9 and Ex. A. Ms.

Watson’s written advice to three New York City District Attorneys as well as the OAG in March

2011 (well before this action commenced), Id. ¶ 11 and Ex. B, also reflected that interpretation.

11 Plaintiffs only claim that Lilly and Miller, not Zuffa, have as-applied vagueness claims on the amateur MMA issue. 2d Am. Complaint ¶ 383.


22

The current position of the SAC is consistent. Baldwin Decl. ¶ 3.12

Plaintiffs apparently allege that some of the responses by the SAC to inquiries about

amateur MMA events (and as explained in Point III(A) above, it is only communications about

MMA that are relevant, not other sports) were unclear or implied that such events were banned

by § 8905-a. Such miscommunications, if they occurred, are hardly the fault of the statute,

however, especially in light of the clear statutory definition of the banned sport as “professional.”

If an SAC staff member occasionally gave a wrong answer, it is not evidence of vagueness of the

statute. As the Second Circuit has said about even more serious prosecutorial errors, “[w]e doubt

that such occasional prosecution in error is much evidence that a statute is too vague. . . .

Prosecutors sometimes make mistakes as to the reach of criminal statutes; courts correct them.”

U.S. v. Rybicki, 354 F.3d at 143. New York law provides a procedural remedy to those who are

aggrieved by actions of State officials that are allegedly arbitrary or contrary to law. See N.Y.

Civil Practice Law and Rules §§ 7801-7806. If a government official is believed to act or

express a position not justified by the law, the remedy is not to strike or enjoin the law.

C. Professional MMA Events on Indian Reservations in New York

New York has jurisdiction over offenses on Indian reservations within the State of New

York to the same extent that it has over offenses committed elsewhere in the State. 25 U.S.C. §

232. While this grant of jurisdiction does not apply to regulation of conduct that it generally

permits, it does apply to conduct that the State generally prohibits. California v. Cabazon Band

of Mission Indians, 480 U.S. 202, 209 (1987). Section 8905-a entirely prohibits mixed martial

arts everywhere in New York State. Thus, it may be prohibited on Indian reservations.

12 Plaintiffs label the consistent sworn deposition testimony of present and former employees of different State agencies that § 8905-a has never applied to amateur MMA as “a blatant falsehood.” Pl. SJ Mem. at 20. But “credibility assessments, choices between conflicting versions of the events, and the weighing of evidence are matters for the jury, not for the court on a motion for summary judgment.” McClellan v. Smith, 439 F.3d 137, 144 (2d Cir. 2006) (quoting Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997).


23

Plaintiffs argue that the State “sometimes asserts that [§ 8905-a] does ban MMA on such

territory, and at other times says it does not.” Pl. SJ Mem. at 23. This assertion is factually

wrong. The Attorney General has published an opinion that MMA is illegal on Indian

reservations, and Glenn Alleyne, a Community Coordinator for the Commission, routinely tells

inquirers that the Commission’s official position is that New York law prohibits MMA

everywhere in New York State, including on Indian reservations. 1997 N.Y. Op. Atty. Gen.

(Inf.) 1093, Opinion No. 97-39 (see Maher Decl. Ex. A); Alleyne Decl. ¶ 32. Plaintiffs can point

to only one hearsay statement that a state agent, namely Mr. Alleyne, allegedly made to the

effect that § 8905-a would not apply on Indian reservations, and Mr. Alleyne denies ever having

made such a statement. Alleyne Decl. ¶ 32. The State’s position has been completely consistent.

Plaintiffs also allege that MMA events have occurred on Native American territories. Pl.

Br. at 23. The Commission is not aware of any such events and does not condone such events.

Alleyne Decl. ¶ 33. Nor have any such events come to the attention of the OAG. Maher Decl. ¶

10. But even if such events have occurred, the fact that the lawbreakers may have “successfully

thwarted enforcement” of the statute would not render it inoperative. United States v. Morrison

(“Morrison I”), 596 F. Supp. 2d 661, 679 (E.D.N.Y. 2009). Indeed, even if Plaintiffs could find

evidence of state agents knowingly declining to enforce § 8905-a in such instances (although no

such evidence exists),13 the failure of the executive branch to enforce a law would not result in its

13 Plaintiffs also include in their 56.1 Statement the fact that a Seneca Nation attorney argued that § 8905-a did not apply on Indian reservations. Pl. 56.1 ¶ 317. The Seneca attorney wrongly argued that the relevant question was not whether New York prohibited mixed martial arts but whether New York more broadly prohibited “sparring-type contact sports.” Levitt 140. But the fact that the state does not prohibit driving generally did not prevent Wisconsin from enforcing its criminal statute prohibiting unlicensed driving against an Indian who had been driving on the reservation after his license had been revoked for the fourth time. See St. Germaine v. Circuit Ct. of Vilas County, 958 F.2d 75, 77-78 (7th Cir. 1991). Also, although New York does not prohibit smoking entirely, the State may prosecute cigarette vendors who sell untaxed cigarettes to non-Indians on the reservation. Morrison II, 686 F.3d at 104. The Morrison II court rejected a void-for-vagueness argument and upheld a RICO conviction because “large-scale cigarette bootlegging” was “the core conduct that [the state statute] criminalized” (emphasis in original). Mixed-martial-arts combat is similarly the core conduct that § 8905-a criminalizes.


24

modification or repeal. United States v. Morrison, 686 F.3d 94, 106 (2d Cir. 2012) (“Morrison

II”), cert. denied, 133 S. Ct. 955 (2013). A “plainly worded statute” cannot be rendered

unconstitutionally vague by “the failure of the executive branch to enforce what the law clearly

proscribes.” Morrison I, 596 F. Supp. 2d at 694.

POINT IV: THE 2001 LIQUOR LAW IS NOT UNCONSTITUTIONALLY VAGUE AS APPLIED TO ZUFFA, MILLER OR LILLY.

Plaintiffs argue that the Liquor Law “clearly permits Exempt Organizations to sanction

professional MMA.” Pl. SJ Mem. at 24. Of course, if the law were truly so “clear,” then it could

not be vague, as plaintiffs claim. In any event, for much the same reasons cited above regarding

§ 8905-a, the Liquor Law similarly prohibits liquor licensing of events at which MMA events

occur. Defendants’ have explained on their summary judgment motion why summary judgment

should be granted to defendants on this statute. See Def. SJ. Mem. at 21-24.

Moreover, plaintiffs’ argument regarding what the SLA considers “single-discipline” and

amateur boxing, Pl. SJ Mem. at 24-25, is a red herring. Only whether the 2001 Liquor Law “is

vague as applied to the particular facts in question” is relevant. United States v. The Spy

Factory, 951 F. Supp. 450, 465 (S.D.N.Y. Jan, 9, 1997) (citing United States v. Santos, 64 F.3d

41, 47 (2d Cir. 1995)). This due process inquiry is limited to the particular circumstances of this

case, and the Court cannot consider the possible vagueness of the 2001 Liquor Law in

“hypothetical applications” not presently before the Court. Village of Hoffman Estates v.

Flipside, 455 U.S. 489, 495 (1982). With respect to MMA, the SLA’s enforcement has been

uniformly consistent. Following the lead of the SAC, it has permitted alcohol to be served at

single discipline martial arts events sanctioned by the WKA, but plaintiffs cannot show that any

SLA official, past or present, has ever issued a temporary alcohol permit or allowed a retail

licensee to host a mixed martial arts match or exhibition, whether or not the event was sponsored


25

by an Exempt Organization. Frering Decl. ¶¶ 7-9. Even if the statute “may not be clear in every

application… the dispositive point here is that the statutory terms are clear in their application to

plaintiffs’ proposed conduct, which means that plaintiffs’ vagueness challenge must fail.”

Holder, 561 U.S. at 21.

CONCLUSION

Plaintiffs’ motion for summary judgment should be denied. Summary judgment should

be granted to defendants and against plaintiffs.

Dated: New York, New York August 21, 2014 Respectfully submitted, ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Defendants By: ___S/______________________ JOHN M. SCHWARTZ Special Litigation Counsel 120 Broadway - 24th Floor New York, New York 10271 (212) 416-8559 JOHN M. SCHWARTZ JULIA H. LEE JOSHUA PEPPER STEPHEN S. HO, Of Counsel


ag brief

Documents

floor new york

state of new york attorney

plaintiffs lilly

defendants motion

remaining plaintiffs

support of plaintiffs

official capacity

professional mma events