Zuffa's Opposition PDF

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 Commissioner of the New
York State Liquor Authority,
Defendants.

No. 11 Civ. 8215 (KMW)(GWG)

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

MORRISON & FOERSTER LLP

Jamie A. Levitt
Jonathan C. Rothberg
250 West 55th Street
New York, New York 10019-9601
Phone: 212.468.8000
jlevitt@mofo.com
jrothberg@mofo.com

Attorneys for Plaintiffs

Barry Friedman
40 Washington Square South
Room 317
Phone: 212.998.6293
barry.friedman@nyu.edu
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Case 1:11-cv-08215-KMW-GWG Document 109 Filed 08/21/14 Page 1 of 31
TABLE OF CONTENTS

Page
PRELIMINARY STATEMENT .................................................................................................... 1
I. Plaintiffs Have Standing To Raise Their Constitutional Challenges to 8905-a ................ 3
A. As the Direct Objects of 8905-a, Plaintiffs Have Standing .................................. 3
B. Zuffa Has An Injury from 8905-a That is Redressable by the Court .................... 4
C. Lilly and Miller Have Standing to Challenge 8905-a as to Amateur MMA ........ 8
D. The Stipulating Plaintiffs Have Standing And Should Not Be Dismissed ........... 10
II. Section 8905-a is Vague as to Professional MMA ........................................................... 11
A. Resort to Legislative History Is Inappropriate Here Under the Notice Prong, and
In Any Event It Does Not Support the AGs Case ............................................... 12
1. The Plain Text of 8905-a Permits Exempt Organizations to Sanction
Professional MMA .................................................................................... 13
2. The Legislative History Does Not Support The AGs Position; MMA
Today Is Not The Ultimate Fighting The Legislature Banned ................. 15
B. Section 8905-a Fails the Enforcement Prong Because the State Has Taken
Inconsistent and Arbitrary Enforcement Actions ................................................. 18
III. The States Enforcement Renders 8905-a Vague as to Amateur MMA ......................... 20
IV. Plaintiffs Have Standing as to the Vague 2001 Liquor Law ............................................ 22
A. Plaintiffs Have Standing to Challenge The 2001 Liquor Law .............................. 22
B. The 2001 Liquor Law is Unconstitutionally Vague ............................................. 23
V. Section 8905-a is vague as to MMA on Indian Reservations and Plaintiffs Have Standing
to Challenge it ................................................................................................................... 23
VI. This is Not An Appropriate Case For Abstention ............................................................. 24
CONCLUSION ............................................................................................................................. 25

ny-1153764 i
TABLE OF AUTHORITIES

Page
CASES
Aiello v. Town of Brookhaven,
136 F. Supp. 2d 81 (E.D.N.Y. 2001) .......................................................................................11
Allstate Ins. Co. v. Serio,
No. 97 CIV. 0670 (RCC), 2000 WL 554221 (S.D.N.Y. May 5, 2000) .....................................9
Am. Booksellers Found. v. Dean,
342 F.3d 96 (2d Cir. 2003).....................................................................................................8, 9
Arlington Heights v. Metro. Hous. Dev. Corp.,
429 U.S. 252 (1977) ...................................................................................................................7
ASARCO, Inc. v. Kadish,
490 U.S. 605 (1989) ...............................................................................................................3, 7
Babbitt v. United Farm Workers,
442 U.S. 289 (1979) .................................................................................................................11
Bantam Books, Inc. v. Sullivan,
372 U.S. 58 (1963) ...................................................................................................................23
Battle v. City of N.Y.,
No. 11 Civ. 3599 (RMB), 2012 U.S. Dist. LEXIS 5256 (S.D.N.Y. Jan. 13, 2012) ..................3
Blackwelder v. Safnauer,
689 F. Supp. 106 (N.D.N.Y. 1988) ..........................................................................................19
Bryant v. N.Y. State Educ. Dept.,
692 F.3d 202 (2d Cir. 2012).......................................................................................................7
Chatin v. Coombe,
186 F.3d 82 (2d Cir. 1999)...........................................................................................13, 19, 20
Clapper v. Amnesty Intl USA,
__ U.S. __, 133 S. Ct. 1138 (2013) ............................................................................................3
Cunney v. Bd. of Trustees,
660 F.3d 612 (2d Cir. 2011).................................................................................................2, 20
DeSimone v. Bd. of Educ., S. Huntington Union Free Sch. Dist.,
612 F. Supp. 1568 (E.D.N.Y. 1985) ........................................................................................25
Fleuti v. Rosenberg,
302 F.2d 652 (9th Cir. 1962), vacd on other grounds, 374 U.S. 449 (1963) .........................13
ny-1153764 ii
Friends of Earth, Inc. v. Laidlaw Envtl. Servs., Inc.,
528 U.S. 167 (2000) ...................................................................................................................3
Fulani v. League of Women Voters,
882 F.2d 621 (2d Cir. 1989)...................................................................................................3, 7
Ghirardelli v. McAvey Sales & Serv., Inc.
287 F. Supp. 2d 379 (S.D.N.Y. 2003), affd, 98 Fed. Appx. 909 (2d Cir. 2004) ....................17
Hayes v. N.Y. Atty Grievance Comm.,
672 F.3d 158 (2d Cir. 2012)......................................................................................... 14-15, 19
Hill v. Colorado,
530 U.S. 703 (2000) ................................................................................................. 2, 11-12, 18
Kolender v. Lawson,
461 U.S 352 (1983) ....................................................................................................................2
LSO Ltd. v. Stroh,
205 F.3d 1146 (9th Cir. 2000) ...........................................................................................22, 23
Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992) ...............................................................................................................1, 3
Mansanto Co. v. Geertson Seed Farms,
561 U.S. 139 (2010) ...................................................................................................................3
Metro. Taxicab Bd. of Trade v. City of N.Y.,
No. 08 Civ. 7837 (PAC), 2008 U.S. Dist. LEXIS 94021 (S.D.N.Y. Oct. 31, 2008),
affd, 615 F.3d 152 (2d Cir. 2010) .............................................................................. 3-4, 10-11
Moore v. Philips,
No. 04 Civ. 8908(DLC), 2006 WL 1006538 (S.D.N.Y. Apr. 18, 2006) .................................11
N.Y. Pub. Interest Research Grp. v. Vill. of Roslyn Estates,
498 F. Supp. 922 (E.D.N.Y. 1979) ............................................................................................6
N.Y. State Bankers Assn v. Albright,
38 N.Y.2d 430, 381 N.Y.S.2d 17 (1975) .................................................................................25
R.R. Commn of Texas v. Pullman Co.,
312 U.S. 496 (1941) .................................................................................................................24
Steffel v. Thompson,
415 U.S. 452 (1972) ...................................................................................................................5
Summers v. Earth Isl. Inst.,
555 U.S. 488 (2009) ...................................................................................................................3
iii
ny-1153764
Tunick v. Safir,
209 F.3d 67 (2d Cir. 2000).......................................................................................................24
U.S. v. Bernier,
954 F.2d 818 (2d Cir. 1992).....................................................................................................13
U.S. v. Colon-Ortiz,
866 F.2d 6 (1st Cir. 1989) ..................................................................................................12, 13
U.S. v. Farhane,
634 F.3d 127 (2d Cir. 2011).....................................................................................................12
U.S. v. Loy,
237 F.3d 251 (3d Cir. 2001).....................................................................................................12
U.S. v. Preston,
739 F. Supp. 294 (W.D. Va. 1990) ..........................................................................................13
U.S. v. Ward,
CRIM. 00-681, 2001 WL 1160168 (E.D. Pa. Sept. 5, 2001) ...................................................12
Va. Socy for Human Life, Inc. v. Fed. Election Commn,
263 F.3d 379 (4th Cir. 2001),
overruled on other grounds, The Real Truth about Abortion v. FEC,
681 F.3d 44 (4th Cir. 2012) .......................................................................................................8
Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc.,
455 U.S. 489 (1982) .................................................................................................................20
VIP v. Berlin,
593 F.3d 179 (2d Cir. 2010).......................................................................................................1
Vt. Right to Life Comm. v. Sorrell,
221 F.3d 376 (2d Cir. 2000).......................................................................................................8
Wandering Dago Inc. v. N.Y. Office of Gen. Servs.,
No. 1:13cv1053, 2014 WL 201968 (N.D.N.Y. Jan 15, 2014) .............................................16
Zia Hospice, Inc. v. Sebelius,
793 F. Supp. 2d 1289 (D.N.M. 2011) ........................................................................................4
STATUTES
5 U.S.C. 8905-a .................................................................................................................... passim

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PRELIMINARY STATEMENT
Plaintiffs and Defendants
1
have filed cross motions for summary judgment on whether
8905-a and the 2001 Liquor Law are unconstitutionally vague as applied to professional and
amateur MMA.
2
Plaintiffs motion focused on the language of the challenged provisions, and on
the interpretations given those words by state officials. This is what governing law says should
be the focus, because the purpose of the void-for-vagueness doctrineone of the most
fundamental protections of the Due Process Clauseis to ensure that laws are crafted with
sufficient clarity to give the person of ordinary intelligence a reasonable opportunity to know
what is prohibited and to provide explicit standards for those who apply them. VIP v. Berlin,
593 F.3d 179, 186 (2d Cir. 2010). Plaintiffs motion shows that on the undisputed facts the
challenged laws are unconstitutionally vague: they cannot be understood by a person of ordinary
intelligence to prohibit amateur MMA, or professional MMA sanctioned by one of the Exempt
Organizations.
The AG, on the other hand, has chosen to move by avoidance. He devotes much of his
brief to the argument that none of the Plaintiffs has standing. (Defs. Memo. of Law in Support
of Their Mot. for Summ. J., 7/31/09, ECF No. 93 (AG Br.) at 3-10.) The law does not support
his claim. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-62 (1992) (little question that
plaintiffs who are direct object of government action have standing to challenge it). Neither do
the undisputed facts: because of the states interpretation of 8905-a, Plaintiffs cannot promote
and perform MMA in New York without fear of prosecution and their injury would be remedied
by a judgment that the challenged provisions are vague as applied.
1
The Defendants together will be referred to as the AG for ease of reference.

2
Unless otherwise indicated, abbreviations and terms are defined in Plaintiffs opening papers, filed July 31, 2014,
or in Plaintiffs Response and Counterstatement of Undisputed Facts, filed August 21, 2014 (56.1 Resp.).
ny-1153764 1

When it comes to the merits, avoidance is again the order of the day. The AG ignores the
very words of 8905-awords that the AG himself, other state officials, and this Court all read
to say an Exempt Organization can sanction professional MMAarguing instead that the
statutes plain meaning should be trumped by legislative history. Then, he also ignores the
actual text of the legislative history, which makes clear that what the Legislature intended to ban
in 1997 was no holds barred fighting, not MMA today under the Unified Rules.
What the AG avoids most glaringly, however, are the facts as to how state officials have
interpreted 8905-a. These facts establish that 8905-a encourage[s] . . . arbitrary or ad hoc
enforcement, Cunney v. Bd. of Trustees, 660 F.3d 612, 623 (2d Cir. 2011); Hill v. Colorado,
530 U.S. 703 (2000); see also Kolender v. Lawson, 461 U.S 352, 358 (1983) (the more
important aspect of [the] vagueness doctrine is . . . the requirement that a legislature establish
minimal guidelines to govern law enforcement). The AG argues the state has been consistent
that amateur MMA is not covered by 8905-a, but ignores plentiful evidence that state
officials nonetheless declared it unlawful and shut it down for a decade prior to the filing of this
suit. (AG Br. at 18) He similarly argues the state has been consistent that the Exempt
Organization provision does not permit a professional MMA event in New York (AG Br. at 14),
but ignores extensive evidence that state officials have allowed Exempt Organizations to
sanction many mixed martial arts while inexplicably prohibiting the sanctioning of the one mixed
martial art that Plaintiffs wish to practice, i.e., Mixed Martial Arts, or MMA.
As a last ditch measure the AG suggestsalmost three years into this litigationthat this
Court abstain and send the case to state court. Abstention is for unclear questions of law, but the
AG does not specify one, simply complaining that this Court failed to take account of the
legislative history. That is incorrect: having reviewed it, this Court found the legislative history
2
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of limited valuebecause what the Legislature banned in 1997 was no hold barred
anything goes fighting, not MMA today under the Unified Rules.
I. PLAINTIFFS HAVE STANDING TO RAISE THEIR CONSTITUTIONAL
CHALLENGES TO 8905-a
The AGs primary defense is not the merits, but standing. A plaintiff has standing if he
has a cognizable injury traceable to the challenged statutes that can be redressed by the court.
Lujan, 504 U.S. at 560-61. Focusing on the first and third of these requirementsand often mis-
citing largely inapt casesthe AG insists none of the plaintiffs have standing. (AG Br. at 4.)
This is wrong on the undisputed facts and reflects a fundamental misunderstanding of settled law.
A. As the Direct Objects of 8905-a, Plaintiffs Have Standing
A central distinction in the case lawoverlooked by the AGmakes clear that the
Plaintiffs have standing. In Lujan, the Supreme Court explained that where the plaintiff is the
object of the state regulation, there is ordinarily little question that he has standing; it is only
when a plaintiffs asserted injury arises from the governments allegedly unlawful regulation . . .
of someone else, that a greater showing is required. 504 U.S. at 561-62. The AG does not cite
a single case in which a court denied standing to a plaintiff who was the direct object of the
regulation at issue. Rather, the AG cites to cases that either find standing or deny standing to
plaintiffs who are not subject to the laws they seek to overturn.
3

Here, it is the Plaintiffs who wish to promote MMA in New York and 8905-a therefore
directly regulates them, making it beyond dispute that they suffer a cognizable injury that can be
redressed by this Court. See Metro. Taxicab Bd. of Trade v. City of N.Y., No. 08 Civ. 7837 (PAC),
3
The cases the AG cites that find standing are: Friends of Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167
(2000); Battle v. City of N.Y., No. 11 Civ. 3599 (RMB), 2012 U.S. Dist. LEXIS 5256 (S.D.N.Y. Jan. 13, 2012);
Mansanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010); Fulani v. League of Women Voters, 882 F.2d 621 (2d
Cir. 1989). Those that find no standing, but as to plaintiffs not subject to the laws at issue are: Lujan, 504 U.S. 555;
Summers v. Earth Isl. Inst., 555 U.S. 488 (2009); ASARCO, Inc. v. Kadish, 490 U.S. 605 (1989); Clapper v. Amnesty
Intl USA, __ U.S. __, 133 S. Ct. 1138 (2013).
3
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2008 U.S. Dist. LEXIS 94021, at *15 (S.D.N.Y. Oct. 31, 2008) (plaintiff taxi owners, drivers and
users had standing to challenge rule requiring high-mileage taxis because plaintiffs were subject
to the regulations at issue and thus were the ones who will suffer injury by the imposition of the
Citys regulations, citing Lujan), affd, 615 F.3d 152 (2d Cir. 2010); Zia Hospice, Inc. v.
Sebelius, 793 F. Supp. 2d 1289, 1296 (D.N.M. 2011) ([t]here is no doubt that Zia has been
subject to a regulation which it contends is unconstitutional. This is sufficient to establish
standing).
B. Zuffa Has An Injury from 8905-a That is Redressable by the Court
Having overlooked the law that as objects of 8905-a Plaintiffs have standing, the AG
makes two equally unfounded arguments that Plaintiff Zuffa lacks standing to challenge 8905-a
as to professional MMA sanctioned by an Exempt Organization.
4
The first of the AGs
arguments is that Zuffa does not have concrete enough plans to hold an MMA event to make
its injury real. The second is that even if Zuffa has an injury, this Court cannot redress it because
to hold an event Zuffa needs the cooperation of the WKA, an Exempt Organization.
The idea that Zuffa lacks a sufficiently concrete injury to raise a challenge to 8905-a is
nothing short of fanciful. Zuffa is the parent company of the Ultimate Fighting Championship,
the worlds largest professional MMA promotion; it holds events regularly throughout the United
States and the world. (Epstein Decl. 15; AG 56.1 1; 56.1 Resp.1). For over seven years
Zuffa has fought a well-publicized battle to promote a professional MMA event in New York.
(56.1 Resp. 70.) Zuffa has suffered monetary and reputational injuries because it cannot,
including lost ticket sales and the loss of sponsorships. (56.1 Resp. 71.)
4
Plaintiffs Miller and Lilly would also like to, but cannot, promote professional MMA. (Defs. Statement Pursuant
to Local Civil Rule 56.1 (AG 56.1) 2, 3; 56.1 Resp. 2, 3, 17, 22-24), and thus also have standing to challenge
the ban on professional MMA.

4
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Zuffa has taken all stepsshort of violating the criminal lawto hold a professional
MMA event in New York and it need not put itself in legal jeopardy to establish standing. See
Steffel v. Thompson, 415 U.S. 452, 469 (1972) (it is not necessary that petitioner first expose
himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters
the exercise of his constitutional rights).
5
Zuffas extensive efforts in New York cannot
honestly be characterized, as the AG does, as some day intentions. (AG Br. at 4.) Zuffa is not
only willing to sponsor an MMA event in New York sanctioned by an Exempt Organization
(see AG Br. at 5), it has taken concrete steps to do so and is prepared to hold an event as soon as
it is legal. (Ratner Decl. 8-11.) Zuffa has scheduled dates for an event at Madison Square
Garden every year since 2009 hoping the legal barrier would be lifted. (Wanagiel Decl. 7-8;
Ratner Decl. 11). MSG has a date on hold for the UFC in 2015 and would make one available
in 2014. (Wanagiel Decl. 8; Crenshaw Decl. 16; see also 56.1 Resp. 9.) The UFC is a
licensed WKA promoter and has an agreement with the WKA to sanction a UFC event in New
York when lawful. (Crenshaw Decl. 15-16; 56.1 Resp. 9.)
The AG quotes testimony of Zuffas Chief Operating Officer that Zuffa had very
preliminary discussions about the possibility of the WKA sanctioning a [mixed martial arts]
event in the State of New York (AG 56.1 9), which alone is enough. But the AG ignores the
rest of Mr. Epsteins testimony; that Zuffa and the WKA had an oral agreement regarding
promoting and sanctioning a professional MMA match in New York (Levitt 26 (Epstein), at
83:1284:12); that they had a meeting of the minds that they would promote and sanction a
professional MMA match in New York together (id. at 84:1012); and that Zuffa has only not
5
The AG states that Zuffa has no contract with the WKA to promote an event (AG Br. at 5), ignoring the fact that
doing so could be unlawful under 8905-a, which makes it a crime to knowingly advance . . . a combative sport.
5
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presented such events to date because it could get no assurances from the State that it would not
be shut down (56.1 Resp. 9, 11).
The AGs claim that Zuffa lacks standing comes with particularly ill grace, as the AGs
flip-flopping interpretation of 8905-a is a direct cause of Zuffas injury. After the AG stated
repeatedly in briefing that an Exempt Organization could sanction professional MMA, Zuffa
wrote to inform the AG that it had begun the process of planning a professional MMA event to
be held in New York, under the auspices of one of the exempt organizations listed in the
Combative Sport Ban and pursuant to the Unified Rules of Mixed Martial Arts. (56.1 Resp. 9,
11; Levitt Oppn Decl. Ex. 155; see also Levitt 37). Zuffa sought assurances that such an event
would be lawful. (56.1 Resp. 9, 11.) The AG refused to provide such assurances (56.1 Resp.
9-10), and thenfollowing an oral argument in which he unequivocally told the Court that
Exempt Organizations could sanction professional MMAdid an about-face and said that
Exempt Organizations could not sanction professional MMA (56.1 Resp. 72). Zuffa cannot
afford to schedule an event only to have it shut down, which would impose enormous
reputational and financial costs (56.1 Resp. 9-11), and would expose the UFC to criminal
liability, which the UFC will not risk as it always abides by all laws and regulations in the
jurisdictions where it promotes MMA. (Ratner Decl. 12.) Zuffa has done more than enough to
establish standing. See N.Y. Pub. Interest Research Grp. v. Vill. of Roslyn Estates, 498 F. Supp.
922, 928 (E.D.N.Y. 1979) (because defendants had taken affirmative action indicating that they
believed the proposed conduct was barred by the [canvassing] ordinance plaintiff not required
to take that last remaining step . . . and risk arrest).
Both the law and the facts also answer the AGs second argument toothat relief for the
UFC is uncertain because it depends on the actions of a third party not before the Court, i.e., the
6
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WKA. (AG Br. at 5-6.) The AG does not cite a single case that supports his novel argument that
a plaintiff lacks standing simply because other steps involving other parties would have to be
taken to engage in the conduct she or he desires.
6
Rather, the law is clear that a party satisfies
the redress requirement when the outcome of the case would make it likely that they be able to
do so. See Bryant v. N.Y. State Educ. Dept., 692 F.3d 202, 211 (2d Cir. 2012) (plaintiffs had
standing to challenge a New York state ban on certain disciplinary actions (aversives) even
though they did not identify a particular school that offered these techniques; [i]f New Yorks
prohibition was declared invalid, it is likely that other facilities in New York would provide
aversives); see also Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 261-62 (1977)
(plaintiff had standing to challenge a zoning decision because it has shown an injury to itself
that is likely to be redressed by a favorable decision even though there was no guarantee that
plaintiff would be able to build the housing units because he had to secure financing, qualify for
federal subsidies, and carry through with construction).
Here, on the facts, actual reliefholding a professional MMA event in New Yorkis far
more likely for Plaintiffs than in the cases cited above, which find standing. Zuffa is a
licensed WKA promoter and the WKA stands ready to sanction a UFC New York event, just as
Madison Square Garden is ready to host it. (Wanagiel Decl. 7-8; Crenshaw Decl. 15-17;
56.1 Resp. 9, 11.)
6
Without indicating he is doing so, the AG quotes the portion of the opinion in ASARCO v. Kadish, that is not a
holding of the Court. (AG Br. at 5; 490 U.S. 605, 614-15 (1989) (Kennedy, J.). In any event, in the language the
AG cites, Justice Kennedy was applying the old and familiar rule that taxpayers have no standing because use of
tax revenue is within the exercise of broad and legitimate discretion of the government. 490 U.S. at 615. Here,
Plaintiffs have established that their ability to promote an MMA event would be redressed by a decision of this
Court. The AGs citation to Fulani, 883 F.2d at 632 is even further afield. Again without notice that he is doing so,
the AG quotes from a concurrence; while on the relevant point the majority of the court expressly disagrees. In
Fulani the court ruledcontrary to the AGs reason for citing the casethat plaintiff, a minor party candidate for
president did have standing to challenge a ruling on the tax exempt status of the organization that had excluded her
from debates, because it was clear that Fulanis asserted injuries could have been redressed by the relief she sought,
since . . . [it] at least would have prevented the Leagues sponsorship of the debates, from which Fulani claims she
was wrongfully excluded. Id. at 628.
7
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C. Lilly and Miller Have Standing to Challenge 8905-a as to Amateur MMA
The AG is also wrong in his argument that Plaintiffs Lilly and Miller lack standing to
challenge 8905-a as applied to amateur MMA because they presently are promoting amateur
MMA events. (See AG Br. at 7-10.) The question is not what Plaintiffs are doing now but
whether they have a well-founded fear of future prosecution. Am. Booksellers Found. v. Dean,
342 F.3d 96, 101 (2d Cir. 2003). The AG argues they do not, claiming [t]he Commissions
interpretation of the statute has been consistent: amateur matches or exhibitions . . . were not
covered by 8905-a. (AG Br. at 16.) But as plaintiffs make clear in their merits discussion
(infra pp. 20-22), this is false. For a decade New York stated that amateur MMA was unlawful
under 8905-a and shut it down (56.1 Resp. 47, 48) and Plaintiffs Lilly and Miller themselves
were told they could not promote amateur MMA events (id. 19, 24).
Given this historyand nothing moreLilly and Miller have a well-founded fear that
the State may change its position yet again. (56.1 Resp. 19, 26.) Courts are particularly quick
to reject arguments like the AGs when the well-founded fear arises precisely because the state
itself has switched or could switch its enforcement position. See Vt. Right to Life Comm. v.
Sorrell, 221 F.3d 376, 383 (2d Cir. 2000) (though state claimed it had no intention of suing the
plaintiff, state was not bound by the view of the law that it assert[ed] in th[e] litigation and
there is nothing that prevents the State from changing its mind); Va. Socy for Human Life, Inc.
v. Fed. Election Commn, 263 F.3d 379, 388 (4th Cir. 2001) (holding plaintiff had standing to
challenge a FEC regulation, even though the FEC had recently voted to no longer enforce it,
because [t]he Commissioners who adopted the policy might be replaced with ones who disagree
with it, or some of the Commissioners who voted might change their minds), overruled on other
grounds, The Real Truth about Abortion v. FEC, 681 F.3d 44 (4th Cir. 2012).
8
ny-1153764
But there is more: although the AG now claims the text of 8905-a governs only
professional MMA, two state officials (including AGs 30(b)(6) witness from the criminal
enforcement division) testified in this case that the legislative history alone provided a
reasonable basis to prosecute amateurs. (56.1 Resp. 74.) This obviously provides the basis
for a well-founded fear of prosecution. See Am. Booksellers, 342 F.3d at 101 (despite the
governments assertion that a statute did not apply to plaintiffs, plaintiffs had an actual and
well-founded fear that the law will be enforced against [them] because it could be read to
apply); Allstate Ins. Co. v. Serio, No. 97 CIV. 0670 (RCC), 2000 WL 554221, at *13 (S.D.N.Y.
May 5, 2000) (plaintiff had a well-founded fear the law would be enforced against it given
government had threatened plaintiff with a fine).
Moreover, to this day the line between what is professional and what is amateur
remains cloudy at best, leaving Lilly and Miller in jeopardy even given the States current
posture of permitting amateur MMA. As the AG candidly admits, there is an absence of a
definition in 8905-a of the terms professional and amateur. (AG Br. at 6.) The declarants
from the DOS claim the term is defined by the boxing regulations, but the AG asserts that the
term should be given its common sense definition. (Compare Watson Decl. 3-5, 10;
Baldwin Decl. 2, with 56.1 Resp. 56.) The AGs moving papers highlight the lack of clarity.
Describing cases in which the AG considered a prosecution under 8905-a, the AGs declarant
hedges constantly: he puts amateur in scare quotes (Maher Decl. 6(c)); he says the AG
concluded the fighters are amateur in the sense that they were neither being paid nor had
professional fighting backgrounds (Maher Decl. 5 (emphasis added)); and he states the AG
appears to have concluded that if the facts showed that the fighters would not be paid, a
violation of 8905-a would be difficult to prove beyond a reasonable doubt (Maher Decl. 9
9
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(emphasis added)). Even then, he attaches a caveat: [t]hese decisions not to prosecute cannot be
deemed the adoption of a position applicable to future cases by the OAG in its role as a law
enforcement agency because each case must be assessed on its particular facts. (Maher Decl.
9.) The AGs brief hedges in the same way. He states his office declined to prosecute under
this statute because the events in question were determined to be arguably amateur. (AG Br. at
17 (emphasis added).) Referring to Plaintiffs Lilly and Miller, he says they held what to them
are amateur MMA events. (AG Br. at 16.)
Nowhere is there a clear definition of what is professional under 8905-a, leaving
amateur promoters not only at risk that amateur MMM again will be deemed unlawful, but also
with an all-too-well-founded fear of crossing the undefined amateur-professional line. State
officials cannot get clear on the most basic definitional questions: whether charging admission
makes an event professional, whether a fighter can fight in a different discipline as a professional
and be an amateur for MMA, or even on the question of compensation.
7
(56.1 Resp. 34.) This
lack of clarity is unacceptable in a criminal statute; it leaves Plaintiffs in jeopardy.
D. The Stipulating Plaintiffs Have Standing And Should Not Be Dismissed
Finally, the AG argues that on the basis of a stipulation entered into to avoid unnecessary
depositions, the remaining Plaintiffs lack standing. Stipulating Plaintiffs are high-profile
professional MMA fighters, amateur fighters, profit from the MMA business, or are avid MMA
fans: there is no serious doubt that they have standing. Metro. Taxicab, 2008 U.S. Dist. LEXIS
7
See 56.1 Resp. 34 (AG did not prosecute one case [a]though the event was charging an admission price for
tickets, yet testified that I think you can make the argument that if a venue is making money, that thats
professional as well; Former SAC General Counsel said if a participant is a professional in one combat sport, he is
a professional in all combat sports and the AG states that a professional fighting background is a consideration in
determining prosecution. However, SAC told Miller that it was fine for a professional boxer to compete in an
amateur MMA match because a professional boxer doesnt make his living as an amateur mixed martial artist;
Most witnesses testified that accepting money, gifts, or prizes makes a fighter professional, but SAC Chair Woman
Melvina Lathan told a promoter that giving prizes would not make an event professional.)

10
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94021, at *15 (drivers and users had standing to high-mileage taxicab rule as the ones who will
suffer injury by the imposition of the Citys regulations); supra pp. 3-4; see also Aiello v. Town
of Brookhaven, 136 F. Supp. 2d 81, 106 (E.D.N.Y. 2001) (addressing sua sponte the issue of the
plaintiffs standing and concluding that given the proximity of plaintiffs to the pond and creek,
and their obvious interest in the environmental and health ramifications of contamination in
those bodies of water, their standing is clearly manifested). And, given that Plaintiffs Zuffa,
Lilly, and Miller plainly have standing, it is unnecessary to address this question. See Babbitt v.
United Farm Workers, 442 U.S. 289, 299 n.11 (1979) (declining to examine if each plaintiff has
standing after finding that one plaintiff has a sufficient personal stake to render the issue
justiciable).
In any event, the AG mischaracterizes the purpose of the negotiated stipulation, and thus
wrongly argues the Stipulating Plaintiffs should be dismissed. The stipulation was entered into
because in a vagueness challenge any testimony about Plaintiffs subjective understanding of the
statute is irrelevant as a matter of law.
8
See Moore v. Philips, No. 04 Civ. 8908(DLC), 2006 WL
1006538, at *5 (S.D.N.Y. Apr. 18, 2006) (the question is not whether plaintiff thought he would
be punished, but whether the language of the statute provides notice that plaintiffs behavior is
eligible for punishment). As such, the Stipulating Plaintiffs could have nothing to say on the
merits; they could only reiterate their stated intention to participate in, profit from, or watch
MMA. (56.1 Resp. 4.) The stipulation saved the cost and time of 13 unnecessary depositions.
II. SECTION 8905-A IS VAGUE AS TO PROFESSIONAL MMA
As the Supreme Court said in Hill v. Colorado, [a] statute can be impermissibly vague
for either of two independent reasons: (1) if it fails to provide people of ordinary intelligence a
8
Plaintiffs Zuffa, Miller, and Lilly were deposed because they had direct interactions with state officials interpreting
and enforcing 8905-a and the 2001 Liquor Law, which evidence is relevant to the issues before the Court.
11
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reasonable opportunity to understand what conduct it prohibits, or (2) if it authorizes or even
encourages arbitrary and discriminatory enforcement. 530 U.S. at 732; Op. at 21 (quoting Hill).
The AG devotes exactly six paragraphs of his brief to analyzing the merits of Plaintiffs
professional MMA vagueness claim. (AG Br. at 12-15.) With regard to the notice prong of
vagueness law, the AG ignores the statutory text altogether in favor of the legislative history,
though the legislative history is irrelevant given the statutes clear text, and in any event supports
Plaintiffs case not his own. (Id. at 13-14.) As to the enforcement prong of vagueness law, the
AG stakes his whole case on the factual assertion that the SAC has consistently taken the
position . . . that the Exempt Organizations provision does not permit a professional MMA event
in New York, ignoring abundant evidence to the contrary. (Id. at 14-15.)
9

A. Resort to Legislative History Is Inappropriate Here Under the Notice Prong,
and In Any Event It Does Not Support the AGs Case
Either 8905-a means what it says on its facethat Exempt Organizations can sanction
any professional martial arts match or exhibitionor it is unconstitutionally vague. The
statutory language itself must be clear enough so that Persons of ordinary intelligence will not
have to guess at its meaning, U.S. v. Colon-Ortiz, 866 F.2d 6, 9 (1st Cir. 1989); accord U.S. v.
Farhane, 634 F.3d 127, 142 (2d Cir. 2011) (in vagueness challenge [t]he task of interpreting a
statute necessarily begins with its language).
9
The AG also argues that because 8905-a requires a knowing violation, vagueness is substantially mitigated.
(AG Br. at 14.) Scienter cannot eliminate vagueness . . . if it is satisfied by an intent to do something that is in
itself ambiguous, as is the case here. U.S. v. Loy, 237 F.3d 251, 265 (3d Cir. 2001). In this case, scienter mitigates
nothing as Plaintiffs have no way of knowing what conduct is prohibited: 8905-a simply fails to inform them that
MMA sanctioned by Exempt Organizations runs afoul of its prohibitions. To permit the scienter requirement to cure
an otherwise vague statute would rob the vagueness doctrine of all of its meaning, for legislatures would simply
repair otherwise vague statutes by inserting the word knowingly. Id.; see U.S. v. Ward, CRIM. 00-681, 2001 WL
1160168, at *25 (E.D. Pa. Sept. 5, 2001) (quoting Loy and holding that a medical regulation was impermissibly
vague despite the requirement of a willful violation because although the defendant could have reasonably known
that the regulation applied to his conduct, it was difficult to determine the precise manner of compliance with the
regulation).
12
ny-1153764

Forcing a plaintiff to chase and interpret the legislative history defeats the whole point of
the vagueness doctrine, i.e., that the ordinary person, forced to align their conduct to the criminal
law, has clear notice of what that law says. See Colon-Ortiz, 866 F.2d at 9 (in vagueness
challenge [i]t is not enough for the congressional intent to be apparent elsewhere if it is not
apparent by examining the language of the statute); Fleuti v. Rosenberg, 302 F.2d 652, 654-55
n.5 (9th Cir. 1962) (refusing to consider legislative history in a challenge to an immigration
statute because the court could not assum[e] that all persons . . . know the relatively inaccessible
legislative history of statutes), vacd on other grounds, 374 U.S. 449 (1963); U.S. v. Preston,
739 F. Supp. 294, 302 (W.D. Va. 1990) (construction that nullifies language in the statute
even if it reflects the clear intent of Congress as evidenced in the legislative history . . . violates
the Due Process Clause); accord Chatin v. Coombe, 186 F.3d 82, 89 (2d Cir. 1999) (unfair to
require petitioner to perform[] the lawyer-like task of statutory interpretation by reconciling the
text of three separate documents to determine whether conduct was permitted); see also U.S. v.
Bernier, 954 F.2d 818, 820 (2d Cir. 1992) (noting that the court need not consider the
legislative history of [the statute] because of the statutes clarity . . .).
In ignoring the text, and looking only to the legislative history, the AG stakes his whole
case on what the Court should not consider, and ignores entirely what it must.
1. The Plain Text of 8905-a Permits Exempt Organizations to
Sanction Professional MMA
The text of 8905-a is clear in permitting Exempt Organizations to sanction professional
MMA. There can be no dispute of this point: the AG specifically told this Court that in
interpreting 8905-a I dont think on these issues we have to go any further than the
text. (ECF No. 42, at 46:7-8.) Indeed, he said on many occasions that Exempt Organizations
can sanction professional MMA, asserting that there was not much wiggle room here . . . . [O]n
13
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its face, the ban of combative sport does not appear . . . to apply to a match or exhibition
sanctioned by listed organizations (id. at 46:1-6), and that a plain reading of the statute . . .
leaves open the possibility that MMA fights could at least under some circumstances be made legal if
sanctioned by a listed organization. (ECF No. 37, at 30.) He is hardly alone. James Leary, the
DOS attorney who answered inquiries to the SAC after 2007 was asked in his deposition whether
the WKA . . . [could] sponsor a professional UFC event under the Unified MMA rules and
responded that [t]he term martial arts says anything done by any of these groups . . . including
mixed martial arts, and that could be a plain language interpretation. (56.1 Resp. 78.) And the
DOS Auditor, entirely independent of this litigation, reached exactly the same conclusion. (Id.
45). This Court similarly concluded a plain reading of [8905-a] suggests that Plaintiffs would
be allowed to promote a professional MMA event in New York if the event were sanctioned by
one of the exempt organizations. (Op. at 24.)
The AGs attempt to explain why he flip-flopped as to the meaning of 8905-a only
serves to underscore Plaintiffs argument that the provision is unconstitutionally vague. The AG
says that after he unequivocally told this Court that the plain text of 8905-a allowed an Exempt
Organization to sanction professional MMA, the then-General Counsel of the DOS contacted
him to tell him this was not the SACs position. (56.1 Resp. 88; Watson Decl. 7.) For the
prior sixteen months, however, counsel to the AG read the text of 8905-a and came to the same
conclusion as Plaintiffs, Mr. Leary, the DOS Auditor and this Court: that Exempt Organizations
can sanction professional MMA. (56.1 Resp. 44-45, 72.) Moreover, he assured this Court he
checked it with [SAC] counsel. And I couldnt find a single lawyer in that agency that disagreed
with me on the reading of it. (56.1 Resp. 45; ECF No. 42, at 70:13-17.) It hardly aids the
AGs argument now to explain that he only abandoned his long-held interpretation of the plain
text upon learning that some at the SAC disagreed with it. [I]f administrators cannot determine
14
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the meaning of a prohibition, those subject to it can hardly [be] expect[ed] . . . to do so. Hayes
v. N.Y. Atty Grievance Comm., 672 F.3d 158, 169 (2d Cir. 2012).
2. The Legislative History Does Not Support The AGs Position; MMA
Today Is Not The Ultimate Fighting The Legislature Banned
Even if resort to legislative history were permissible when statutory language is clear, the
legislative history here supports Plaintiffs, not the AG. Citing to no specific page of the
legislative history, but alluding to its supposed primary purpose, the AG says that Exempt
Organizations cannot sponsor the very Ultimate Fighting that the statute was enacted to
prevent. This only begs the essential question: is MMA today under the Unified Rules the
very Ultimate Fighting the law banned.
The facts are undisputed that what the Legislature banned in 1997 is not MMA today. In
1997, the Legislature shut down anything goes or no holds barred fighting that involved few
rules, little refereeing, no weight classes, and many troubling moves. (56.1 Resp. 78.) Plaintiffs,
however, promote MMA under the Unified Rules, not anything goes fighting. (AG 56.1 1;
56.1 Resp. 1, 78-79, 81.) The AG himself recognizes the difference, stating as an undisputed
fact that Plaintiff Zuffa, LLC is the . . . leading promoter of Professional Unified Rules [MMA].
(AG 56.1 1 (emphasis added).) The Unified Rules carefully regulate or ban everything the
Legislature found problematic. (Ratner Decl. 13-16.) That is why MMA is lawful today
throughout the country and the world, even where no holds barred fighting once was banned.
(56.1 Resp. 80.) And it is why this Court was correct in findingassuming as true facts
Plaintiffs have now proventhat [t]he legislative history is of limited value because MMA
has changed substantially since [8905-a] was enacted, making the legislative history, which
relates to earlier versions of MMA, of little relevance. (Op. at 24-25.)
15
ny-1153764
In his moving brief, the AG engages in a sleight of hand to gloss over what he cannot
explain away: that Ultimate Fighting circa 1997 is not the same as MMA today under the
Unified Rules. He first says, unremarkably, that [t]he legislative history of 8905-a shows that
a total ban of the professional sport then known as Ultimate Fighting (the trademark now
owned by plaintiff Zuffa (2d Am. Compl. 278
10
)), was the primary purpose of the law 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 (AG Br. at 13-14 (emphasis added)). But
thenwith no bridge sentence to get therehe concludes that construing the statute to allow an
Exempt Organization to sanction Ultimate Fighting would undermine the statutes stated
purpose and would circumvent the total ban of mixed martial arts. (Id. at 14) Missing is the
lynchpin sentence that wouldif it were true but it is notequate the very Ultimate Fighting
that the statute was enacted to prevent with mixed martial arts. The AG offers no proof
because he has nonethat the Legislature meant to ban mixed martial arts sanctioned by an
Exempt Organization. The Legislature never once even used the phrase mixed martial arts, in
8905-a or its legislative history. (56.1 Resp. 89.) Most tellingly, for the first sixteen months of
this case, the AG often cited the very same legislative history (see 56.1 Resp. 44-45, 72); yet
having read it, still believed and told the Court that Exempt Organizations could sanction
professional MMA. (Supra pp. 13-14.)
10
The AG suggests that because Zuffa bought the trademark Ultimate Fighting Championship, and the Legislature
banned Ultimate Fighting circa 1997, then what Zuffa promotes today must be banned. To criminalize the name
Ultimate Fighting would raise First Amendment issues. See Wandering Dago Inc. v. N.Y. Office of Gen. Servs.,
992 F. Supp. 2d 102, __ (N.D.N.Y. 2014) (corporate name . . . is a form of expressive speech protected under the
First Amendment). And, the AGs argument would collapse if the plaintiff was Bellator, or any MMA promotion
other than the Ultimate Fighting Championship. Brands change all the time. Wells Fargo today is a banking
conglomerate, but it began as a shipping company, including, notably, the Pony Express. Say Western Union and
one thinks of telegrams, which it no longer delivers (its primary business is money orders). Perhaps the most apt
analogy is Coca-Cola. The pause that refreshes contained amounts of cocaine until 1903 and would be illegal
today, but Coca-Cola as it presently exists is not unlawful.
16
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In depositions, state officials repeatedly confirmed that MMA today under the Unified
Rules is not the same thing as the anything goes fighting banned in 1997. Glenn Alleyne, the
SACs 30(b)(6) witness and the person most knowledgeable about combative sports at the
SAC was asked: you understand professional MMA to be different than ultimate or extreme
fighting, correct? and replied yes, acknowledging the impact of the Unified Rules. (56.1 Resp.
78.) James Leary, who regularly handled combative sports matters at the DOS, stated that: As
long as its conducted under the unified rules, MMA is different than it was in 1997, prohibiting
many moves like biting, eye gouging, fish hooking, and some other things. (56.1 Resp. 78.)
Hugo Spindola discussed the problems the 1997 Legislature was addressing: no holds barred
fighting, a cage, few rules, two weight classes, et cetera. He was then asked Is that your
understanding of the UFC today? and replied No. And again: Its different today, correct?
Yes. (56.1 Resp. 78.)
11
And Marc Ratner, who was involved with the development of the
Unified Rules explains that modern MMA conducted under the Unified Rules bears little relation
to the sport that was banned by the New York Legislature in 1997. (Ratner Decl. 13-15.)
That MMA today under the Unified Rules is not the same as the extreme no holds
barred or ultimate fighting of 1997 is underscored by former opponents who have changed
their views, including Governor Pataki, who signed 8905-a ([w]ith more rigorous oversight,
training and medical requirements - mixed martial arts has made considerable strides to ensure
the safety of participants) (56.1 Resp. 79), and Senator John McCain (The sport has grown
up. The rules have been adopted to give its athletes better protections and to ensure fairer
11
The only assertion in the entire record that MMA today is what the Legislature banned in 1997 is Susan Watsons
conclusory statement that the statutes legislative history . . . shows that its principal intent was to prevent events
which were then known as Ultimate Fighting or Extreme Fighting, and are now called MMA events. (Watson
Decl. 6.) Ms. Watson offers no basis for her conclusion, which is contrary to all the other evidence. Her
unsupported, self-serving, conclusory statementcontrary to all else in the recorddoes not create a disputed issue
of fact. See Ghirardelli v. McAvey Sales & Serv., Inc. 287 F. Supp. 2d 379, 391 (S.D.N.Y. 2003) (a partys self-
serving account that disputes the clear and unequivocal documentary and testimonial evidence is insufficient to
create genuine issue of material fact to avoid summary judgment), affd, 98 Fed. Appx. 909 (2d Cir. 2004).
17
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competition) (id.). According to the current SAC Chair Melvina Lathan, Everyone at some
point who was against M.M.A. says its entirely different now. (Id.)
B. Section 8905-a Fails the Enforcement Prong Because the State Has Taken
Inconsistent and Arbitrary Enforcement Actions
As to the second, or enforcement, prong of vagueness doctrine, the AGs sole argument
is that [t]he 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.
12
Yet, the germane question under the enforcement
prong is not whether the state has prohibited the sanctioning of professional MMA, but whether,
in light of the full pattern of enforcement of 8905-a, the state is making arbitrary or
discriminatory choices about what to allow or disallow. Hill v. Colorado, 530 U.S. at 732.
In examining the States enforcement decisions it is useful to utilize the AGs own
terminology. In his Supplemental Memorandum of March 22, 2013, the AG said: MMA or
capitalized Mixed Martial Arts refers to the sport promoted by Zuffa, LLC, also known as
Ultimate Fighting, as opposed to mixed martial arts (all lower case), which refers generally to
any sport that combines martial arts techniques. The AG thus acknowledges that MMA is but a
subset of the broader category of mixed martial arts.
It is undisputed that the State regularly has allowed many mixed martial arts to take place
if sanctioned by an Exempt Organization, and forbids only the sanctioning of one particular
mixed martial art: MMA. James Leary gave Madison Square Garden the blessing to hold a Shin
Do Kumate Event. (56.1 Resp. 45.) State officials have confirmed it was lawful for the WKA
to sanction Glory, K-1, and Muay Thai, all of which have taken place in New York in recent
12
The AG refers to the SAC as though it is the only entity involved in enforcing 8905-a. (AG Br. at 14-15 & n.4.)
But as the record makes clear, DOS officials were actively involved in those decisions, and privilege log entries
indicate key decisions went up to the Governors office. (56.1 Resp. 84.)
18
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years. (56.1 Resp. 45.) Yet, each of these events is mixed martial arts. (Ratner Decl. 17;
Crenshaw Decl. 12; 56.1 Resp. 45.) Glory is a mix of several combat disciplines including
Karate, Muay Thai, Tae Kwon Do and traditional Boxing (56.1 Resp. 45; Ratner Decl. 17;
Crenshaw 12); K-1 is a combat sport that combines the most effective stand-up fighting
strategies from bare knuckle Karate, Kung Fu, Muay Thai, Taekwon-do, Savate, San Shou/San
Da, Western Kickboxing, and traditional boxing (56.1 Resp. 45; Ratner Decl. 17; Crenshaw
12); Shin Do Kumate draws from the art of Muay Thai and allows techniques from a variety of
other Martial Arts disciplines[] [s]uch as Kyokushin Karate, Tae Kwon Do, Sanshou,
Kickboxing and Persian wrestling neck clinch (56.1 Resp. 45); Muay Thai combines hand
and foot strikes with other techniques derivative [of] other martial arts such as throws and foot
sweeps. (56.1 Resp. 45; Ratner Decl. 17; Crenshaw 12.)
The AG seeks to push aside the inconvenient fact that the State regularly allows mixed
martial arts, while inexplicably barring MMA, by stating that Plaintiffs cannot complain of these
decisions because (a) their conduct is at the core of what 8905-a prohibits, and (b) Plaintiffs
cannot raise issues about hypothetical cases. (AG Br. at 16.) But, as the previous section
made clear, it is undisputed that Plaintiffs conduct is not at the core of what 8905-a says or
what the legislature had in mind; MMA today under the Unified Rules is not what 8905-a
banned. (supra pp. 15-17.) And Plaintiffs are not complaining about hypothetical cases, their
complaint is the State cannot distinguish its treatment of MMA from the posture it has taken
toward the actual mixed martial arts cases described above.
13

13
See Hayes, 672 F.3d at 170 (rules validity exacerbated by evidence that administrators had indicated [to
Hayes] that letters must be six inches in height but in other cases had accepted four-inch letters); Chatin, 186
F.3d at 89 (relying on evidence that the treatment of prisoners who engage[d] in individual, silent, demonstrative
prayer . . . ha[d] varied greatly to conclude that officials had unfettered discretion in interpreting the rule);
Blackwelder v. Safnauer, 689 F. Supp. 106, 127-28 (N.D.N.Y. 1988) (comparing the policies of three different
school districts to conclude that a compulsory education scheme did not give school officials too much discretion).
19
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In light of States generally welcoming posture toward mixed martial arts, its treatment of
professional MMA is at best ad hoc or arbitrary, at worst nakedly discriminatory, and thus
unconstitutionally vague under the enforcement prong of vagueness doctrine. See Vill. of
Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 503 (1982) (considering the
risk of discriminatory enforcement [not] insignificant based on conflicts in enforcement
officials testimony as to their understanding of ordinances scope); Cunney v. Bd. of Trustees,
660 F.3d 612, 623 (2d Cir. 2011) (finding based on enforcement record that challenged measure
could encourage potentially arbitrary or ad hoc enforcement.); Chatin, 186 F.3d at 89
(relying on evidence of inconsistent enforcement to reach inescapable conclusion . . . that
[enforcement officials] have unfettered discretion in interpreting what conduct is prohibited
and therefore violate[d] the second prong of the vagueness test.)
III. THE STATES ENFORCEMENT RENDERS 8905-A VAGUE AS TO
AMATEUR MMA
The AGs argument regarding the merits of the amateur MMA vagueness claim rests on
one assertion: [t]he Commissions interpretation of the statute has been consistent: amateur
matches or exhibitions . . . were not covered by 8905-a. (AG Br. at 18.) He thus denies that the
SAC has shut down amateur MMA or said it is unlawful. The facts, however, belie the claim.
It is undeniable that the State prohibited and shut down amateur MMA events from 1997
to 2012. (See 56.1 Resp. 47-49.) The AG concedes that SAC General Counsel Hugo Spindola
sent cease and desist orders to the promoters of amateur events. (AG Br. at 17.) Spindola was
not alone: Current SAC Chair Lathan, and DOS Attorneys Mossberg and Leary, also sent cease
and desist orders regarding amateur MMA. (56.1 Resp. 41, 43; Levitt 122-24, 133.)
It is also undeniable that state officials repeatedly told people amateur MMA was
unlawful when asked specifically about it. In October of 2008, Ruth Colon of the DOS received
20
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an inquiry specifically asking about amateur kickboxing and amateur MMA. (56.1 Resp. 51;
Levitt 102.) While explaining that amateur kickboxing was permissible, she told the promoter
that the intent of 8905-a was to impose an across the board prohibition on mixed martial arts
activities in the State. (Id.) Similarly, when asked about an amateur grappling event, Mr.
Spindola told the inquirer that the amateur event may be considered a mixed martial art which
this law intended to ban. (56.1 Resp. 49, 51-53; Levitt 98.) James Leary wrote Leslie Trebby,
a counterpart at the State Liquor Authority, that the SAC has interpreted []8905-a . . . . as
prohibiting professional martial arts events that are not sanctioned by a listed martial arts
organization and as prohibiting all mixed martial arts (ultimate fighting) within the State. (56.1
Resp. 52-53; Levitt 103.) There is no ambiguity here.
In an attempt to deal with the many documents contrary to his claim of consistent
treatment of amateur MMA, the AG and declarants have contrived a story that in the early years
SAC officials responded to inquiries in general terms, without distinguishing amateur MMA,
because they were unaware of its presence. But as the documents quoted above show, this is
false: people asked specifically about amateur MMA and were told specifically it was unlawful
and amateur MMA events were shut down.
14
(56.1 Resp. 49, 51-53.) Indeed, Ms. Watson
concedes in the first declaration she filed with the AGs motion that the SACs notice to amateur
MMA promoters was unclear for more than a decade and thus needed to be clarified
(Declaration of Susan Watson, 7/31/14, ECF No. 98, at 9), a fact then tellingly cleaned up in a
14
Mr. Spindolas claim that he would have approved amateur events, but no one proved an event was amateur, is
both untrue and irrelevant. Even if it were true, it does not matter because the SAC has no more authority over
professional MMA than it has over amateur MMA, i.e. none. But it is not true. For example, Mr. Spindola did not
object to an event because he had no proof it was amateur; his specific objection was that it could be confused with
amateur MMA. (56.1 Resp. 49, 51-53; Levitt 61.) And Mr. Spindolas supposed process for confirming the
amateur nature of events was a fiction. The AG admitted the process never existed. (56.1 Resp. 49, 50.)
21
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late-filed replacement.
15
(AG Br. at 17-18.) Section 8905-a has been applied inconsistently to
amateur MMA and thus is unconstitutionally vague as applied.
IV. PLAINTIFFS HAVE STANDING AS TO THE VAGUE 2001 LIQUOR LAW
A. Plaintiffs Have Standing to Challenge The 2001 Liquor Law
The AG argues that Plaintiffs have no standing to challenge the 2001 Liquor Law
because they are not licensees for on-premises consumption of alcoholic beverages and because
they have not applied for temporary liquor licenses. (AG Br. at 6-7, 9-10.) However, Plaintiffs
are not seeking to vindicate the rights of the liquor licensees, they are seeking to vindicate their
own rights, which are impinged upon by the 2001 Liquor Law. (2d Am. Compl. 443 (Every
major sports and entertainment venue in New York holds a retail liquor license, including
Madison Square Garden, the Barclays Center, HSBC Arena, among many others. Thus, the
2001 Liquor Law [] effectively bans combative sports such as mixed martial arts from being
performed in any large (and most small) venues in New York).) The 2001 Liquor prevents
Plaintiffs from promoting the events they wish hold in New York, causing them direct harm.
In a nearly identical case, the Ninth Circuit found standing. LSO Ltd. v. Stroh, 205 F.3d
1146 (9th Cir. 2000). In LSO, the plaintiff sought to hold an erotic art exhibition at a convention
center in California, which the California Department of Alcoholic Beverage Control attempted
to prevent by threatening the convention center with sanctions, including losing its liquor
license. Id. The plaintiff, who did not possess a liquor license, sued, seeking to hold its
exhibition. Id. The defendants arguedas the AG does herethat the plaintiff lacked standing
because the regulatory threats were directed at liquor licensees, not the plaintiff. Id. at
15
These critical admissions were excised in a second sworn declaration submitted on behalf of Ms. Watson more
than a week after the deadline for filing motions for summary judgment, with no redline or other notice that there
were changes. (Declaration of Susan Watson, 8/8/14, ECF No. 101.) Defendants should not be permitted to rely on
a sanitized, untimely declaration.
22
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1153. The Ninth Circuit disagreed, holding that plaintiff did in fact have standing because the
alleged injury caused by preventing the exhibition was to its own constitutional rights. Id. at
1153-54; see also Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 64 n.7 (1963) (in challenge by
book publishers to a law requiring notification to book distributors of obscene or corrupting
books, book publishers standing has not been, nor could it be, successfully questioned despite
the fact that the disputed actions were directed at book distributors.)
B. The 2001 Liquor Law is Unconstitutionally Vague
The 2001 Liquor Law is vague for the same reasons as 8905-a. The text of the Liquor
Lawwhich incorporates by reference the text of 8905-aclearly permits Exempt
Organizations to sanction professional MMA, yet, contrary to the plain language, the SLA has
interpreted the 2001 Liquor Law to prohibit both amateur and professional MMA at venues
holding liquor licenses, even if sanctioned by Exempt Organizations. (56.1 Resp. 87.) The
SLA generally has followed the SACs guidance in deciding which martial arts may be
sanctioned, and when it has not it has adopted even more incoherent and ad hoc standards with
no basis in the statutes text or in the legislative history. (56.1 Resp. 86-88.)
The vagueness of the Liquor Law and 8905-a has permitted the SLA to discriminate
between events it wants to allow (amateur boxing sanctioned by USA Boxing and some martial
arts sanctioned by Exempt Organizations) and those that it does not (professional and amateur
MMA) despite no basis for such distinction in the law. (56.1 Resp. 86.)
V. SECTION 8905-a IS VAGUE AS TO MMA ON INDIAN RESERVATIONS AND
PLAINTIFFS HAVE STANDING TO CHALLENGE IT
It is uncontested that Zuffa is interested in promoting events on Indian reservations in
New Yorkparticularly if it is unable to do so elsewhere in the statejust as it has promoted
events on Indian reservations in other states. (Epstein Decl. 23.) As such, Zuffa clearly has
23
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standing to challenge the Ban as it applies to Indian reservations. (See supra pp. 3-5.) And,
under both the notice and enforcement prongs, 8905-a is vague as to whether such events are
permissible today because though 8905-a is silent, the State is inconsistent: sometimes asserting
that it does ban MMA on such territory (56.1 Resp. 57-58), and other times asserting that it
does not (id.).
VI. THIS IS NOT AN APPROPRIATE CASE FOR ABSTENTION
Almost three full years into this litigation, facing an overwhelming factual case against
him, the AG now suggests this Court might abstain under Railroad Commission of Texas v.
Pullman Co., 312 U.S. 496 (1941). Clearly a last-ditch delaying tactic, the suggestion is also
wrong on the merits. Because [r]ights delayed . . . are often rights destroyed . . . Pullman
abstention has been used only very sparingly, Tunick v. Safir, 209 F.3d 67, 78 (2d Cir. 2000).
This is hardly an appropriate case.
Pullman abstention exists to resolve unsettled state legal questions, but the AG never
specifies one. The AGs Pullman argument is based entirely on his oft-repeated view that this
Court is impermissibly failing to take account of the legislative history of 8905-a. (AG Br. at
20.) He insists that New York courts take legislative history into account, even if it is
completely contrary to the text of the statute. (Id. at 20-21.) The AGs reading of New York
case lawa reading that would set New York apart from the rest of the United Statesis itself
deeply contestable. (See, e.g., Op at 24-25 (citing Riley v. Cnty. of Broome, 95 N.Y.2d 455, 463,
719 N.Y.S.2d 623, 627 (2000)) for the proposition that [a]lthough legislative history may be

24
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relevant, in general, the unambiguous language of the statute is alone determinative.)
16
In
any event, in this constitutional challenge, federal law trumps state law, and under federal law,
legislative history cannot be used in a vagueness challenge to overrule plain text. (See supra pp.
12-13.)
But more to the point, this Court did not ignore the legislative history. It considered that
history and found, properlyas discussed suprathat it was of limited value precisely
because of what the Plaintiffs have now proven: MMA has changed substantially since the Ban
was enacted, making the legislative history, which relates to earlier versions of MMA, of little
relevance. (Op. at 24-25.)
Thus, all that is left is the factual questionand it too is undisputedof whether MMA
under the Unified Rules is the same thing as the no-holds barred fighting fully described in that
legislative history. Countless Pullman cases make clear that abstention is for uncertain state
law, and is therefore inappropriate where the question is one of certain state law, or of fact, or
even of mixed questions of law and fact. See, e.g., Wisconsin v. Constantineau, 400 U.S. 433,
438 (1971) ([Abstention] only applies where the issue of state law is uncertain.); Vinyard v.
King, 655 F.2d 1016, 1020 (10th Cir. 1981) ([I]t may be [difficult] to apply the law to the facts,
but abstention is inappropriate on this basis.); DeSimone v. Bd. of Educ., S. Huntington Union
Free Sch. Dist., 612 F. Supp. 1568, 1572 (E.D.N.Y. 1985) (Pullman abstention is inappropriate
for mixed questions of law and fact).
CONCLUSION
Plaintiffs respectfully request that Defendants Motion for Summary Judgment be denied.
16
See also, e.g., N.Y. State Bankers Assn v. Albright, 38 N.Y.2d 430, 436-37, 381 N.Y.S.2d 17, 20 (1975), also cited
by the AG (AG Br. at 13), which states that although [i]nquiry into the meaning of statutes is never foreclosed at
the threshold . . . . [t]here is, of course, no more persuasive evidence of the purpose of a statute than the words by
which the legislature undertook to give expression to its wishes (quoting U.S. v. Am. Trucking Assns, 310 U.S.
534, 543-44 (1940)).

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ny-1153764

Dated: New York, New York
August 21, 2014

MORRISON & FOERSTER LLP

Barry Friedman
40 Washington Square South
Room 317
Phone: 212.998.6293
Fax: 212.995.4030
barry.friedman@nyu.edu
By:

/s/ Jamie A. Levitt
Jamie A. Levitt
Jonathan C. Rothberg
250 West 55th Street
Phone: 212.468.8000
Fax: 212.468.7900
jlevitt@mofo.com
jrothberg@mofo.com

Attorneys for Plaintiffs

26
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