Archive for the ‘New York Combat Sports Law’ Category

After overseeing their first professional MMA contest after the sport was legalized in New York, the State’s athletic commission is coming under scrutiny for the suspensions they are handing out to fighters.

Two such suspensions were for missing weight with Thiago Alves suspended 3 months for missing weight and Kelvin Gastelum suspended for  6 months for missing weight and apparently no-showing at the weigh in.

The NYSAC is, however, well within their rights to hand out suspensions to fighters who miss weight under the newly minted regulations governing combative sports in New York.

Section 206.6 of New York’s Regulations allows the NYSAC to suspend the licence of anyone who “violates the rules, policies and directives” of the NYSAC.

While there is no regulation saying a fighter must make weight s.209.2 requires bout contracts to specify a “combatant’s contracted weight” and s. 209.3 allows suspension for fighters to who do not “carry out the terms and conditions of contracts to which they are parties.“.

Although it is not the norm in combat sports for fighters to be suspended for missing weight NYSAC does enjoy this authority.

From there the only relevant legal question is whether the NYSAC is exercising this power fairly or are they arbitrarily handing out punishments to MMA fighters?  The answers appears to be the former with the NYSAC publishing a bulletin in 2015 setting uniform penalties for missing weight. (ht Joe Seatter).

The bulletin reads as follows:

Suspension of Overweight Boxers

Professional boxers have an obligation, at the official weigh-in for a bout, to weigh in at or below the weight set forth in the bout contract. A boxer who fails to make weight violates his or her obligations under the bout contract, damages the boxer’s opponent and the sport of boxing, and does a disservice to him or herself. Pursuant to 19 NYCRR 214.10, “[i]n nontitle bouts, boxers overweight under the terms of the contract may be suspended after the match for such period as the commission may decide.” It is the sense of the Commission that boxers who weigh in over the contract weight should be suspended as follows:

1. For a first violation of the terms of the contract, ninety (90) days.

2. For a second violation of the terms of the contract, one hundred and eighty (180) days.

3. For a third violation of the terms of the contract, two hundred and seventy (270) days.

4. For a fourth or subsequent violation of the terms of the contract, a time period as determined by the Commission but no less than two hundred and seventy (270) days.

The suspension periods will apply to all boxers in nontitle bouts pursuant to 19 NYCRR 214.10, and to all boxers in title bouts pursuant to the Commission’s authority to act in the best interest of boxing.

The Commission reserves the right to take any additional disciplinary action it deems appropriate based on (a) whether the bout is cancelled as a result of one or both boxers weighing in over the contract weight, (b) the amount by which a boxer weighs in over the contract weight, or (c) any other aggravating factor. Additional disciplinary action may include, but is not limited to, suspension, revocation, and fine. Implemented by vote of the Commissioners on August 25, 2015.

This policy shall be effective immediately.

The New York State Athletic Commission, a regulator whose powers have been greatly expanded through recent legislative overhaul of New York’s combat sports landscape, has come under harsh criticism by Inspector General Catherine Leahy Scott.

Scott, who was tasked with scrutinizing the NYSAC after a heavyweight boxer sustained a brain injury in a 2013 bout at Madison Square Gardens, finalized her report this month. As first reported by the New York Times, Scott’s report made several critical findings of the regulator.

Scott’s full report can be found here – NY Investigation into NYSAC

In the 48 page report Scott notes

  • that the Athletic Commission Chair at the time of the bout “had received improper gifts from promoters
  • subsequent Commission Chair Thomas Hoover “engaged in improper conduct in obtaining benefits for a relative and friends
  • and perhaps most damaging of all that “many Athletic Commission practices, policies and procedures were either nonexistent or deficient, specifically those relating to post-bout medical care, tactical emergency plans and communication, and training. The Inspector General also found a lack of appropriate engagement and oversight by Athletic Commission commissioners and its char as well as potential violations of New York Public Officers Law by current and former chairs of the Athletic Commission

 

The New York State Athletic Commission has published their “Proposed Regulations to Govern Combat Sports in New York”.  These can be found here.

NYSAC Proposed Combat Sports Regs

These Regulations are the ‘nuts and bolts’ of how combative sports will be overseen in the Empire State.  The Commission is “providing a 45-day public comment period on the proposed regulations” so if you are a combat sports stake holder in New York speak now or forever hold your peace.

Some of the highlights are as follows:

  • A broad ability to oversee ‘all contracts’ in professional combative sports with section 206.12 reading as follows

All contracts calling for the services of a professional in an authorized professional combative sport and entered into by licensed promoters, professionals or managers as one or more of the parties in such contracts shall be subject to Commission approval and must be filed with the Commission to be valid. All such contracts must comply with applicable provisions of New York State and federal law. The Commission shall have jurisdiction over any contracts directly related to the conduct of authorized professional combative sports in the state of New York, and shall have the authority, in its discretion, to act to invalidate, enforce, mediate, arbitrate or modify such contracts. All contracts directly related to the conduct of professional boxing activity in the state of New York must also comply with the applicable requirements of the federal Professional Boxing Safety Act (15 U.S.C. 6301, et seq.), as amended.

  • Mandatory Licencing of Managers
  • The regulation of sparring which is defined as “practice boxing, practice mixed martial arts, or other practice combative sport conducted between two participants for training purposes in which blows are landed to the head or body of one or both participants in an manner intended to mimic those that may be attempted in a match, whether or not headgear is used.
  • A prohibition on Rapid Extreme Weight Cuts with section 208.14 reading as follows

No boxer or mixed martial artist shall participate in any contest or exhibition following weight loss of two pounds or more of body weight within 24 hours prior to such contest or exhibition, unless otherwise authorized by the Commission. A combatant may be disapproved for participation in a match or exhibition if, in the professional medical opinion of the reviewing physician, it would be unsafe for the combatant to compete in the match or exhibition due to a finding of dehydration or extreme weight loss.

  • $50,000 Insurance requirement with a further $1 million insurance requirement for ‘life threatening brain injury’
  • A three year cap for boxing/manager contracts
  • a restriction on promoters assigning rights of boxers or MMA fighters to others without the combatant’s written consent
  • A mandatory seven day period in between ‘combat sport’ matches making elimination style tournaments illegal
  • amateur event protection including $10,000 insurance requirement, requirement for physician and ambulance to be present at events
  • In and out of competition drug testing abilities
  • A minimum of 50% of purse payable to boxers and mixed martial artists who are “ready, willing and able…on the date of the official weigh in….who suffer cancellation of the contest at that time due to no fault of their own”.

 


Now that the hangover from the celebration of soon to be legal MMA in New York is over its time to face one sober reality. New York’s legislation will, in practice, only allow the biggest players to legally host professional MMA bouts in the State.  Why?  The legislation brings with it a steep insurance requirement, one that only deep pocketed promoters can realistically hope to afford.  In short the legislation requires a minimum protection of $50,000 of coverage per licenced professional for medical surgical and hospital care for injuries sustained in an event.  Additionally the insurance must offer a further minimum of $1 million of coverage for “life-threatening brain injury“. The relevant provisions read as follows:

 All persons, parties or corporations having licenses as promoters
    14  or who are licensed in accordance with section one thousand seventeen of
    15  this article shall continuously provide accident insurance or such other
    16  form of financial guarantee deemed acceptable by the commission, for the
    17  protection of licensed professionals and professional wrestlers, appear-
    18  ing in authorized professional combative  sports  or  wrestling  exhibi-
    19  tions.  Such  accident  insurance  or  financial guarantee shall provide
    20  coverage to the licensed professional for: medical, surgical and  hospi-
    21  tal  care,  with  a minimum limit of fifty thousand dollars for injuries
    22  sustained while participating in any program operated under the  control
    23  of such licensed promoter and for a payment of fifty thousand dollars to
    24  the  estate  of  any  deceased athlete where such death is occasioned by
    25  injuries received in this state during the course of a program in  which
    26  such  licensed  professional or professional wrestler participated under
    27  the promotion or control of any licensed promoter; and, medical,  surgi-
    28  cal  and  hospital  care with a minimum limit of one million dollars for
    29  the treatment of a life-threatening brain injury sustained in a  program
    30  operated under the control of such licensed promoter, where an identifi-
    31  able,  causal  link  exists  between the professional licensee's partic-
    32  ipation in such program and the  life-threatening  brain  injury.

Some stakeholders in the industry have informed me that few insurers would be willing to take on the risk to provide such coverage.   I am not expert in insurance price points for combat sports but one person who is, John McCarthy, speculated that the cost of a policy that complies with New York’s legislation will run a promotion around $100,000 per event and contrasted this with other jurisdictions such as California where the insurance requirements set back promoters between $2,500 and $5,000. McCarthy stated as follows this week on his “Let’s Get it On” Podcast –

The one thing that needs to be brought out here, is this is legalized MMA in the State of New York, but there’s some additions to this…there’s not going to be small promoters doing MMA in New York, not professional, because there are regulations as far as insurance policies and stuff.  Insurance policy for one show is going to cost about $100,000.  Now the UFC can afford that, Bellator can afford that, maybe the World Series of Fighting can afford that, but nobody else can…If you’re looking in the State of California, how much is an insurance policy for a show?   The insurance policy for a show is going to be somewhere in between $2,500 and $5,000….What has been passed is great, I’m all for it, its the step in the direction but only a couple of shows are going to be able to go there.

This is not a criticism of the long overdue legislation. It is good to see government seeking to protect the athletes that put their health on the line for the entertainment of the public and potential profits of promoters.  It is simply an observation worth noting. Professional MMA will be legal in New York as soon Andrew Cuomo puts pen to paper.  From there only the big fish will get to play in the Empire State.

Update April 14, 2016 – Today New York Governor Andrew Cuomo signed the bill into law making professional MMA finally legal in the Empire State.  The first legal event will be able to be hosted as early as September 1, 2016

Genia Tweet

_____________________________________

Bill A02604 is set to be voted on by the New York State Assembly next week and as long time New York MMA Journalist Jim Genia reports “the bill will pass next week”.

So what does Bill A02604 do? Below are six highlights previously provided by Genia of the Bill which was revamped in mid 2015 to secure greater legislative support –

  • Amateur MMA is permitted, and will be sanctioned by the Athletic Commission or by third-party organizations approved by the Commission. There will be no more unsanctioned events allowed;
  • The Commission will have jurisdiction over all combative sports, including professional wrestling, martial arts and kickboxing. The list of organizations approved for sanctioning of martial arts events is gone, and the Commission will lay out criteria for third-party organizations to get approval to operate within the state;
  • These third-party organizations may have the power to sanction pro combative sports, including MMA events;
  • The Commission will have jurisdiction (and licensing ability) over gyms that provide sparring in preparation for pro boxing or pro MMA bouts;
  • Accident insurance for a minimum of $50,000 is required by all pro combative sports promoters, with a million dollar insurance minimum for competition injuries resulting in major brain injuries; and,
  • All combative sporting events, pro or amateur, will pay an 8.5% tax on gate and a 3% tax on broadcasting rights sold (this includes Internet broadcasts)

I’ve had an opportunity to review the legislation in full and, in addition to the above highlights, there are two other noteworthy points –

  • Not only are gyms regulated, but the legislation sets our a host of requirements for these.  All training facilities ‘providing contact sparring maintained either exclusively or in part for the use of professional combative sports participants‘ will need to meet the following criteria –
 
     AT A MINIMUM, ANY SUCH REGULATION SHALL REQUIRE:
       (I) FIRST AID MATERIALS TO BE STORED IN AN ACCESSIBLE LOCATION ON  THE
     PREMISES  AND  FOR  THE PRESENCE ON THE PREMISES OF A PERSON TRAINED AND
     CERTIFIED IN THE USE OF SUCH MATERIALS AND PROCEDURES FOR  CARDIO-PULMO-
     NARY  RESUSCITATION  AT  ALL TIMES DURING WHICH THE FACILITY IS OPEN FOR
     TRAINING PURPOSES;
       (II) CLEAN AND SANITARY BATHROOMS, SHOWER ROOMS, AND LOCKER ROOMS;
       (III) ADEQUATE VENTILATION AND LIGHTING OF  ACCESSIBLE  AREAS  OF  THE
     TRAINING FACILITY;
       (IV)  ESTABLISHMENT  OF A POLICY CONCERNING THE RESTRICTION OF SMOKING
     IN TRAINING AREAS, INCLUDING  PROVISIONS  FOR  ITS  ENFORCEMENT  BY  THE
     FACILITY OPERATOR;
       (V) COMPLIANCE WITH STATE AND LOCAL FIRE ORDINANCES;
       (VI)  INSPECTION AND APPROVAL OF SURFACES ON WHICH TRAINING FOR COMBA-
     TIVE SPORTS WILL BE HELD; AND
       (VII) ESTABLISHMENT OF A POLICY FOR  POSTING  ALL  COMMISSION  LICENSE
     SUSPENSIONS AND LICENSE REVOCATIONS RECEIVED FROM THE COMMISSION INCLUD-
     ING  PROVISIONS  FOR  ENFORCEMENT OF SUCH SUSPENSIONS AND REVOCATIONS BY
     THE FACILITY OPERATOR.
       (B) A PROSPECTIVE ENTITY LICENSEE SHALL SUBMIT TO THE COMMISSION PROOF
     THAT IT CAN FURNISH SUITABLE FACILITIES IN WHICH THE TRAINING IS  TO  BE
     CONDUCTED,  INCLUDING  THE  MAKING OF SUCH TRAINING FACILITIES AVAILABLE
     FOR INSPECTION BY THE COMMISSION AT ANY TIME DURING WHICH TRAINING IS IN
   45  PROGRESS.
  • The legislation also mandates that the State conduct a study aimed and arriving at options for providing ‘medical and rehabilitative care’  for combative sport participants that sustain ‘repetitive head injuries’ in their career with the relevant section of the Bill reading as follows:
The department of state, with the assistance of the state athlet-
      ic  commission, medical advisory board, departments of health and finan-
      cial services, state insurance fund, division of budget and  such  other
      state  entities as appropriate, shall carefully consider potential mech-
      anisms to provide  financial  resources  for  the  payment  of  expenses
     related  to  medical  and rehabilitative care for professionals licensed
     under article forty-one of  the  general  business  law  who  experience
     debilitating  brain  injuries  associated  with repetitive head injuries
     sustained through their participation in combative sports.  The  depart-
     ment  of  state may consult and contract with third parties for services
     in the course of this review. The department of state shall  report  its
     findings and recommendations to the governor, temporary president of the
     senate  and speaker of the assembly within eighteen months of the effec-
     tive date of this section.

Late last month Federal Judge Kimba Wood has released brief reasons for judgement denying Zuffa’s request for a preliminary injunction preventing New York from using their Combative Sport Law to shut down a planned UFC event at Madison Square Gardens.

Judge Wood promised ‘a longer opinion will follow’ and these full reasons have now been released.

In short the Court noted that by arranging an event at Madison Square Gardens the UFC did gain standing to challenge New York’s Combative Sports Law.  The Court sidestepped the request for a preliminary injunction, however, noting that no State Court has yet interpreted the potentially unconstitutionally vague New York law and until this was done the Federal Court did wished to avoid the “friction-generating error that can result when a federal court endeavors to construe a novel state act not yet reviewed by the state’s highest court

The full reasons denying the preliminary injunction were as follows –

Because Plaintiff’s likelihood of success on the merits depends upon the interpretation of an unclear New York state statute that no New York state court has ever construed, this Court abstains under Pullman. See R.R. Comm’n of Tex. v. Pullman Co., 312 U.S. 496 (1941).

“When anticipatory relief is sought in federal court against a state statute, respect for the place of the states in our federal system calls for close consideration of whether a ruling on the constitutionality of the state law is, in fact, necessary.” Expressions Hair Design v. Schneiderman, 808 F.3d 118, 137 (2d Cir. 2015) (quoting Arizonans for Official English v. Arizona, 520 U.S. 43, 75 (1997). Pullman abstention is “[i]ntended to further the harmonious relation between state and federal courts” by allowing a federal court to abstain from deciding difficult and “unsettled questions of state law that are antecedent to federal constitutional questions.” Tunick v. Safir, 209 F.3d 67, 74 (2d. Cir. 2000) (internal citations and quotation marks omitted); see alsoVt. Right to Life Comm., Inc. v. Sorrell, 221 F.3d 376, 384 (2d Cir. 2000). Once the federal court has abstained, “the parties may seek a controlling interpretation of the challenged law from the state courts, whose decision could cause the federal constitutional question to disappear altogether.” Expressions, 808 F.3d at 137.Pullman abstention thus allows a federal court to avoid both: (1) unnecessary or premature decisions on questions of federal constitutional law, and (2) potentially erroneous rulings with respect to state law. Id. (quoting Allstate Ins. Co. v. Serio, 261 F.3d 143, 150 (2d Cir. 2001)); Tunick, 209 F.3d at 74 (quoting Pullman, 312 U.S. at 498-99).

The Second Circuit has held that abstention under Pullman is appropriate when three necessary conditions are met: “(1) an unclear state statute is at issue; (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 constitutional issue.” Wang v. Pataki, 164 F. Supp. 2d 406, 410-11 (S.D.N.Y. 2001) (Sweet, J.) (quoting Greater N.Y. Metro. Food Council v. McGuire, 6 F.3d 75, 77 (2d Cir. 1993)) (internal quotation marks omitted); see also Jacoby & Meyers, LLP v. Presiding Justices of First, Second, Third, and Fourth Departments, Appellative Div. of Supreme Court of New York, 847 F. Supp. 2d 590, 599 n.56 (S.D.N.Y. 2012) (Kaplan, J.); Winters v. Meyer, 442 F. Supp.2d 82, 88 (S.D.N.Y. 2006) (McMahon, J.). “Abstention is not appropriate . . . where the meaning of a state statute is clear on its face.” Tunick, 209 F.3d at 74 (citing Hawaii Housing Auth. v. Midkiff, 467 U.S. 229, 236 (1984)). Although a court may invoke Pullman abstention when the three conditions listed above are met, it is not required to do so. Abstention is not appropriate where “important federal rights .. . outweigh the interests underlying the Pullman doctrine.” Kachalsky v. Cacace, 817 F. Supp. 2d 235, 253 (S.D.N.Y. 2011) (Seibel, J.) (quoting Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 100 (2d Cir. 2004)).

The three essential conditions for Pullman abstention are met in this case. First, the CSL is an unclear state law, susceptible to multiple, different interpretations. In particular, it is not clear what falls within the scope of the martial arts exception to the definition of a combative sport. The CSL reads in pertinent part: “`martial arts’ shall include any professional match or exhibition sanctioned by” one of twelve listed Exempt Organizations. N.Y. Unconsol. Law § 8905-a(1). Since the CSL has been in force, the NYSAC has assumed primary responsibility for interpreting the statute and has embraced widely varying interpretations, including:

(1) that the CSL permits any kind of martial arts event except MMA, including those not sanctioned by an Exempt Organization, (Mot. for Prelim. Inj., 15);

(2) that the CSL permits an Exempt Organization to sanction only events featuring the martial art found in its name (i.e. the U.S. Judo Organization could only sponsor judo) (Compl. ¶ 82); and

(3) that the CSL permits Exempt Organizations to sanction only “single-discipline” martial arts, even though in practice the NYSAC allowed events featuring Muay-Thai, jiu-jitsu, and kickboxing, all of which combine elements from different martial arts (Compl. ¶¶ 81, 91-94).

Furthermore, the OAG, the entity charged with enforcing the CSL’s criminal provisions, has previously stated that the CSL would permit an MMA event sanctioned by an Exempt Organization, only to reverse course and declare that the CSL prohibited any professional MMA event, even if sanctioned by an Exempt Organization. (Compl. ¶¶ 104-113).

This history of shifting interpretations of the CSL, coupled with erratic enforcement that has often contradicted the official interpretation of the law, amply demonstrates that the CSL is unclear on its face. The CSL has never been interpreted by any New York state court, see (Defs.’ Opp’n, 8), leaving this Court with no guidance as to the proper scope of the statute.

The second and third conditions of Pullman are also met. Plaintiff’s federal constitutional vagueness challenge depends on the interpretation of this state law, and the CSL is susceptible to interpretations that would resolve the statutory uncertainty and eliminate the federal constitutional issue. “A statute is unconstitutionally vague only if it cannot be construed in a way that eliminates the vagueness.” Expressions, 808 F.3d at 144 (citing Skilling v. United States, 561 U.S. 358, 403-04 (2010)). “[C]larity at the requisite level may be supplied by judicial gloss on an otherwise uncertain statute.” United States v. Lanier, 520 U.S. 259, 266 (1997). “Thus, in considering a vagueness challenge to a state statute, a federal court must consider not only how the law is presently drafted, but also how it has been construed by the state courts.” Expressions, 808 F.3d at 144 (quotingKolender, 461 U.S. 352, 358 (1983)) (internal quotation marks omitted).

Plaintiff has identified two possible readings of the CSL that could eliminate the alleged statutory vagueness, namely (1) that an Exempt Organization could sanction any kind of event, and (2) that an Exempt Organization could sanction any event of the kind found in that Exempt Organization’s name. (Mot. for Prelim. Inj., 17). Either of these constructions would likely provide the judicial gloss necessary to resolve any uncertainty in the text of the statute and provide “ordinary people fair notice of the conduct it punishes.” Johnson v. United States, 135 S. Ct. 2551, 2556 (2015).[10]

Abstention under Pullman is particularly appropriate where, as here, the state law being interpreted governs issues that are traditionally a matter of state concern, such as health and safety. See Jancyn Mfg. Corp. v. Suffolk County, 583 F. Supp. 1364, 1371, 1376 (E.D.N.Y. 1984) (citing Reetz v. Bozanich, 397 U.S. 82, 86-87 (1970)) (abstaining under Pullman when unclear state law involved matters of particular state concern); N.Y. State Rest. Ass’n v. New York City Bd. of Health, 556 F. 3d 114, 123 (2d Cir. 2009) (noting “the traditional primacy of state regulation in matters of health and safety”); Jones I, 888 F. Supp. 2d at 428-29 (finding that the CSL regulated the health and safety of combatants).

For these reasons, the Court concludes that it would be inappropriate to reach the merits of Plaintiff’s vagueness challenge to the CSL before any New York state court has had an opportunity to construe the challenged provision. See Hickerson v. City of New York, 932 F. Supp. 550, 556 (S.D.N.Y. 1996) (Cedarbaum, J.) (“A federal court should not be the first to construe these provisions. Abstention is warranted to give the New York courts an opportunity to construe the resolution, for the courts could interpret these phrases in such a way as to change or eliminate the vagueness claims.”); Expressions, 808 F.3d at 139 (“[W]e cannot hold a duly enacted state law unconstitutional based entirely on speculation that the New York courts might give it a[] . . . problematic reading that its text does not require.”); cf. Kachalsky, 817 F. Supp. 2d at 253 (“Where, as here, state courts have settled upon an interpretation of the statute at issue, Pullman abstention is not warranted.”).[11]

The Court further concludes that abstention is warranted because the federal interests at stake do not, in this instance, outweigh those interests that underlie thePullman doctrine. First, there will be no chilling effect on First Amendment rights caused by the decision to abstain, because this Court has previously determined that the CSL does not prevent Plaintiff from engaging in any conduct protected by the First Amendment. See Jones II, 974 F. Supp. 2d at 333-39 (holding that the CSL does not prohibit protected speech or expressive conduct); see also Expressions,808 F.3d at 141 (abstaining under Pullman where “there is a minimal risk that any First Amendment rights . . . will be compromised by our decision to abstain”). Second, as stated in Jones III, Plaintiff may still seek a declaratory judgment in state court to settle decisively the scope of the CSL. See N. Am. Airlines, Inc. v. Int’l Bhd. of Teamsters, AFL-CIO, No. 04-CV-9949, 2005 WL 926969, at *4 (S.D.N.Y. Apr. 19, 2005) (Karas, J.) (quoting Accident Fund v. Baerwaldt, 579 F. Supp. 724, 728 (W.D. Mich. 1984)) (“An important consideration, apparently overlooked by plaintiffs, is their freedom to seek injunctive relief in the state courts; a course of action clearly contemplated by the Pullman . . . doctrine[].”).[12]

In sum, because this Court wishes to avoid the “friction-generating error that can result when a federal court endeavors to construe a novel state act not yet reviewed by the state’s highest court,” Expressions, 808 F.3d at 137, and because this Court believes that a state court determination of the meaning of the CSL will resolve or modify the federal constitutional issue, this Court abstains.

As first reported by Fightland, Federal Judge Kimba Wood has released reasons for judgement denying Zuffa’s request for a preliminary injunction preventing New York from using their Combative Sport Law to shut down a planned UFC event at Madison Square Gardens.

Zuffa argued that a preliminary injunction was needed because the case will likely succeed at trial, there will be irreparable harm (either by having the event shut down or the looming threat of criminal charges if the event proceeds) without a preliminary injunction and lastly that an injunction is in the public interest.

The Court declined the request for a preliminary injunction finding a Pullman abstention was appropriate.

Fightland obtained the below copy of Judge Wood’s reasons:

Screenshot Judge Wood Reasons

Immediately after filing a second lawsuit in New York seeking a declaration that the State’s Combative Sport Law is unconstitutionally vague as applied to professional MMA, the UFC has requested that a preliminary injunction be granted preventing the law from being used to shut down a scheduled event at Madison Square Gardens in April, 2016.

The UFC’s full argument can be found here (courtesy of New York MMA Journalist Jim Genia) – Zuffa v New York Memo In Support of Preliminary Injunction

In short the UFC argues that a preliminary injunction is needed because the case will likely succeed at trial, there will be irreparable harm (either by having the event shut down or the looming threat of criminal charges if the event proceeds) without a preliminary injunction and lastly that an injunction is in the public interest.

The UFC’s argument that the law is inherently vague and inconsistently applied is on fairly strong legal footing.  Whether these arguments warrant a preliminary injunction before the case is fully canvassed on its merits is yet to be seen.

In the event this is granted the State of New York will have a problem on their hands in that they will largely lose the reigns on the regulation of professional combative sports.  To this end, as Genia notes, the possibility of legislative amendment in the early New Year cannot be ruled out

Earlier this year when Federal Judge Kimba Wood dismissed a UFC lawsuit against New York alleging the State’s professional MMA ban was unconstitutional the Court noted that the Plaintiff’s did not have standing to sue.  The Court did suggest, however, that the law may not withstand scrutiny if the UFC could establish damages and invited

(the) Plaintiffs, particularly Zuffa, may consider filing new vagueness claims based on events that occurred after this lawsuit commenced, including the OAG’s recent statements that the Ban prohibits sanctioned professional MMA (despite its plain language to the contrary).”

Although the first lawsuit is under appeal the UFC was quick to take up Judge Wood on her suggestion and this week filed a second lawsuit.  Taking lessons from admissions gained through discovery from the prior litigation and further taking Judge Wood’s comments to heart the second lawsuit is a leaner and more compelling version of the first.  Zuffa booked Madison Square Gardens for an anticipated UFC card in April 2016 and signed a contract with the WKA to act as a sanctioning “exempt organization” arguably making the event legal.

The UFC is essentially now playing chicken with the State of New York to see if they will take action to shut the event down.  If they do they have damages and have standing to sue.  If not then they will get in the back door what has not yet fit through the front.

In short the lawsuit alleges that New York’s Combative Sport Law is unconstitutionally vague as applied to professional MMA and they are seeking a declaration stating the same along with an injunction preventing the State from enforcing the Combative Sport law against UFC professional events.

The full pleadings can be found here (courtesy of MMA Journalist Jim Genia) – Zuffa v New York

These are worth reading in full to see the sometimes inconsistent and difficult to understand stance that New York has taken trying to establish that the law prohibits modern day professional MMA in the Empire State.

The latest development is this claim is set to be heard by the very same Judge Kimba Wood who expressed strong views as to the merits of the vagueness claim.

Jim Genia Tweet Re Kimba Wood

Your move New York.

Update June 10, 2015 – Jim Genia has tweeted the following update announcing that the Senate has accepted the revamped Bill leaving it in the hands of the NY State Assembly –

Jim Genia Tweet

___________________________________________

As the New York State Assembly struggles to gather the needed votes to pass proposed legislation to legalize professional MMA, the Bill has been overhauled with a view to obtain the needed support.  The current text of Bill A02604 can be found here. MMA journalist Jim Genia, who has provided coverage of these legislative developments that are second to none, has provided the following summary of the revamped Bill –

  • Amateur MMA is permitted, and will be sanctioned by the Athletic Commission or by third-party organizations approved by the Commission. There will be no more unsanctioned events allowed;
  • The Commission will have jurisdiction over all combative sports, including professional wrestling, martial arts and kickboxing. The list of organizations approved for sanctioning of martial arts events is gone, and the Commission will lay out criteria for third-party organizations to get approval to operate within the state;
  • These third-party organizations may have the power to sanction pro combative sports, including MMA events;
  • The Commission will have jurisdiction (and licensing ability) over gyms that provide sparring in preparation for pro boxing or pro MMA bouts;
  • Accident insurance for a minimum of $50,000 is required by all pro combative sports promoters, with a million dollar insurance minimum for competition injuries resulting in major brain injuries; and,
  • All combative sporting events, pro or amateur, will pay an 8.5% tax on gate and a 3% tax on broadcasting rights sold (this includes Internet broadcasts)

I’ve had an opportunity to review the legislation in full and, in addition to the above highlights, there are two other noteworthy points –

  • Not only are gyms regulated, but the legislation sets our a host of requirements for these.  All training facilities ‘providing contact sparring maintained either exclusively or in part for the use of professional combative sports participants‘ will need to meet the following criteria –
 
     AT A MINIMUM, ANY SUCH REGULATION SHALL REQUIRE:
       (I) FIRST AID MATERIALS TO BE STORED IN AN ACCESSIBLE LOCATION ON  THE
     PREMISES  AND  FOR  THE PRESENCE ON THE PREMISES OF A PERSON TRAINED AND
     CERTIFIED IN THE USE OF SUCH MATERIALS AND PROCEDURES FOR  CARDIO-PULMO-
     NARY  RESUSCITATION  AT  ALL TIMES DURING WHICH THE FACILITY IS OPEN FOR
     TRAINING PURPOSES;
       (II) CLEAN AND SANITARY BATHROOMS, SHOWER ROOMS, AND LOCKER ROOMS;
       (III) ADEQUATE VENTILATION AND LIGHTING OF  ACCESSIBLE  AREAS  OF  THE
     TRAINING FACILITY;
       (IV)  ESTABLISHMENT  OF A POLICY CONCERNING THE RESTRICTION OF SMOKING
     IN TRAINING AREAS, INCLUDING  PROVISIONS  FOR  ITS  ENFORCEMENT  BY  THE
     FACILITY OPERATOR;
       (V) COMPLIANCE WITH STATE AND LOCAL FIRE ORDINANCES;
       (VI)  INSPECTION AND APPROVAL OF SURFACES ON WHICH TRAINING FOR COMBA-
     TIVE SPORTS WILL BE HELD; AND
       (VII) ESTABLISHMENT OF A POLICY FOR  POSTING  ALL  COMMISSION  LICENSE
     SUSPENSIONS AND LICENSE REVOCATIONS RECEIVED FROM THE COMMISSION INCLUD-
     ING  PROVISIONS  FOR  ENFORCEMENT OF SUCH SUSPENSIONS AND REVOCATIONS BY
     THE FACILITY OPERATOR.
       (B) A PROSPECTIVE ENTITY LICENSEE SHALL SUBMIT TO THE COMMISSION PROOF
     THAT IT CAN FURNISH SUITABLE FACILITIES IN WHICH THE TRAINING IS  TO  BE
     CONDUCTED,  INCLUDING  THE  MAKING OF SUCH TRAINING FACILITIES AVAILABLE
     FOR INSPECTION BY THE COMMISSION AT ANY TIME DURING WHICH TRAINING IS IN
   45  PROGRESS.
  • The legislation also mandates that the State conduct a study aimed and arriving at options for providing ‘medical and rehabilitative care’  for combative sport participants that sustain ‘repetitive head injuries’ in their career with the relevant section of the Bill reading as follows:
The department of state, with the assistance of the state athlet-
      ic  commission, medical advisory board, departments of health and finan-
      cial services, state insurance fund, division of budget and  such  other
      state  entities as appropriate, shall carefully consider potential mech-
      anisms to provide  financial  resources  for  the  payment  of  expenses
     related  to  medical  and rehabilitative care for professionals licensed
     under article forty-one of  the  general  business  law  who  experience
     debilitating  brain  injuries  associated  with repetitive head injuries
     sustained through their participation in combative sports.  The  depart-
     ment  of  state may consult and contract with third parties for services
     in the course of this review. The department of state shall  report  its
     findings and recommendations to the governor, temporary president of the
     senate  and speaker of the assembly within eighteen months of the effec-
     tive date of this section.