AG Brief

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

J ON J ONES, 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, J OSEPH LOZITO, ERIK OWINGS,
CHRIS REITZ AND J ENNIFER 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 J EANIQUE GREEN,
in her official capacity as Commissioner of the
New York State Liquor Authority,
Defendants.

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

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

ERIC T. SCHNEIDERMAN
Attorney General of the
State of New York
Attorney for Defendants
120 Broadway - 24th Floor
New York, New York 10271
J OHN M. SCHWARTZ
J ULIA H. LEE
J OSHUA PEPPER
STEPHEN S. HO,
Of Counsel
Case 1:11-cv-08215-KMW-GWG Document 118 Filed 08/21/14 Page 1 of 32

i

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .......................................................................................................... ii

PRELIMINARY STATEMENT .................................................................................................... 1

POINT I: AS DEMONSTRATED IN DEFENDANTS MOTION TO STRIKE, THE
COURT SHOULD NOT CONSIDER EVIDENCE IN SUPPORT OF
PLAINTIFFS MOTION THAT IS NOT ADMISSIBLE ........................................... 3

POINT II: PLAINTIFFS HAVE FAILED TO SHOW THAT THEY HAVE STANDING
TO BRING THIS SUIT ............................................................................................... 3

A. Plaintiff Zuffa ..................................................................................... 4

B. Plaintiffs Lilly and Miller ................................................................... 7

C. The Remaining Plaintiffs ................................................................. 10

POINT III: 8905-a IS NOT UNCONSTITUTIONALLY VAGUE ......................................... 10

A. Professional MMA Events Sponsored By Exempt
Organizations ................................................................................... 11

B. Amateur MMA Events in New York .............................................. 19

C. Professional MMA Events on Indian Reservations
in New York .................................................................................... 22

POINT IV: THE 2001 LIQUOR LAW IS NOT UNCONSTITUTIONALLY VAGUE
AS APPLIED TO ZUFFA, MILLER OR LILLY ................................................... 24

CONCLUSION ............................................................................................................................. 25


ii

TABLE OF AUTHORITIES
Cases Page(s)

Allen v. Wright,
468 U.S. 737 (1984) ...................................................................................................................4
Allstate Ins. Co. v. Serio,
261 F.3d 143 (2d Cir. 2001).....................................................................................................19
Arista Records LLC v. Lime Group LLC,
No. 06 CV 5936, 2011 U.S. Dist. LEXIS 35362 (S.D.N.Y. 2011) (Wood, J .) .........................3
ASARCO, Inc. v. Kadish,
490 U.S. 605 (1989) ...................................................................................................................5
California v. Cabazon Band of Mission Indians,
480 U.S. 202 (1987) .................................................................................................................22
Clapper v. Amnesty International U.S.A.,
___U.S. ___, 133 S. Ct. 1138 (2013) .............................................................................4, 6, 8, 9
Dickerson v. Napolitano,
604 F.3d 732 (2d Cir. 2010).....................................................................................................13
Eastman Kodak Co. v. Image Technical Servs., Inc.,
504 U.S. 451 (1992) ...................................................................................................................3
Evergreen Association, Inc. v. City of New York,
740 F.3d 233 (2d Cir. 2014).....................................................................................................15
Farrell v. Burke,
449 F.3d 470 (2d Cir. 2006).................................................................................5, 7, 10, 13, 21
Field Day, LLC. v. County of Suffolk,
463 F.3d 167 (2d Cir. 2006).....................................................................................................19
Fischl v. Armitage,
128 F.3d 50 (2d Cir. 1997).......................................................................................................22
Fulani v. League of Women Voters Educ. Fund,
882 F.2d 621 (2d Cir. 1989).......................................................................................................5
Grayned v. City of Rockland,
408 U.S. 104 (1972) .................................................................................................................18
Greater New York Metropolitan Food Council v. McGuire,
6 F.3d 75 (2d Cir. 1993)...........................................................................................................19

iii

Hedges v. Obama,
724 F.3d 170 (2d Cir. 2013), cert. denied 134 S. Ct. 1936 (2014) ........................................4, 9
Holder v. Humanitarian Law Project,
561 U.S. 1 (2010) .....................................................................................................8, 11, 14, 25
Intl Primate Prot. League v. Adminrs of Tulane Educational Fund,
500 U.S. 72 (1991) .....................................................................................................................4
J ones v. Schneiderman,
888 F. Supp. 2d 421 (S.D.N.Y. 2012) (J ones I) ...................................................................15
J ones v. Schneiderman,
974 F. Supp.2d 322 (S.D.N.Y. 2013) (J ones II) ........................................................... passim
J ustice v. Kuhnappel,
985 F. Supp. 2d 334 (E.D.N.Y 2013) ........................................................................................6
Kampfer v. Cuomo,
No. 13 CV 82, 2014 U.S. Dist. LEXIS 1479 (E.D.N.Y. J an. 7, 2014) ......................................8
Keepers, Inc. v. City of Milford,
944 F. Supp.2d 129 (D. Ct. 2013) ............................................................................................15
Kendall v. Metro-North Commuter Railroad,
No. 12 Civ. 6015, 2014 U.S. Dist. LEXIS 65001 (S.D.N.Y. May 12, 2014) ............................3
Koslow v. Horn,
No. 09 Civ. 6597, 2010 U.S. Dist. LEXIS 144693 (S.D.N.Y. Dec. 14, 2010), R&R
adopted 2012 U.S. Dist. LEXIS 99251 (S.D.N.Y. J uly 17, 2012)...........................................14
Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992) ...............................................................................................................3, 5
McClellan v. Smith,
439 F.3d 137 (2d Cir. 2006).....................................................................................................22
New York v. Ferber,
458 U.S. 747 (1982) .................................................................................................................12
Perez v. Hoblock,
368 F.3d 166 (2d Cir. 2004).....................................................................................................13
Presbyterian Church of Sudan v. Talisman Energy, Inc.,
582 F.3d 244 (2d Cir. 2009).......................................................................................................3
Rose v. Locke,
423 U.S. 48 (1975) ...................................................................................................................15

iv

Rumsfeld v. United Technologies Corp.,
315 F.3d 1361 (Fed. Cir. 2003)................................................................................................16
Skilling v. U.S.,
561 U.S. 358 (2010) .................................................................................................................13
St. Germaine v. Circuit Ct. of Vilas County,
958 F.2d 75 (7
th
Cir. 1991) ......................................................................................................23
Summers v. Earth Island Institute,
555 U.S. 488 (2009) .......................................................................................................4, 5, 6, 9
U.S. v. Lachman,
387 F.3d 42 (1st Cir. 2004) ......................................................................................................16
U.S. v. Tracey,
967 F. Supp.2d 731 (S.D.N.Y. 2013) .................................................................................11, 14
U.S. v. Williams,
553 U.S. 285 (2008) ...........................................................................................................14, 20
United States v. Farhane,
634 F.3d 127 (2d Cir. 2011).....................................................................................................13
United States v. Morrison
(Morrison I), 596 F. Supp. 2d 661 (E.D.N.Y. 2009) ......................................................23, 24
United States v. Morrison,
686 F.3d 94 (2d Cir. 2012) (Morrison II), cert. denied, 133 S. Ct. 955 (2013) .............23, 24
United States v. Rybicki,
354 F.3d 124 (2d Cir. 2003)...............................................................................................14, 22
United States v. Santos,
64 F.3d 41 (2d Cir. 1995) ........................................................................................................24
United States v. The Spy Factory,
951 F. Supp. 450 (S.D.N.Y. J an, 9, 1997) ...............................................................................24
United States v. Yongwang,
No. 11 Cr. 730, 2013 U.S. Dist. LEXIS 16153 (S.D.N.Y. Feb. 5, 2013) ................................20
Vermont Right to Life Committee, Inc. v. Sorrell,
221 F.3d 376 (2d Cir. 2000).....................................................................................................19
Village of Hoffman Estates v. Flipside,
455 U.S. 489 (1982) .............................................................................................................7, 24

v

VIP of Berlin, LLC v. Town of Berlin,
593 F.3d 179 (2d Cir. 2010)...............................................................................................12, 16
Whitmore v. Arkansas,
495 U.S. 149 (1990) ...................................................................................................................8
Younger v. Harris,
401 U.S. 37 (1971) .....................................................................................................................8
United States Constitutions
First Amendment ...........................................................................................................................13
Article III .....................................................................................................................................1, 8
Federal Statutes
25 U.S.C. 232 ..............................................................................................................................22
Federal Rules of Civil Procedure
Local Civil Rule 56.1 .......................................................................................................................3
Local Civil Rule 56.1(d) ..................................................................................................................3
Fed. R. Civ. Proc. 56(c)(2) ...............................................................................................................3
State Statutes
Civil Practice Law and Rules
7801-7806 ...........................................................................................................................22
New York Alcoholic Beverage Control Law (the 2001 Liquor Law)
106(6-c) ............................................................................................................... 1, 7, 9-10, 24
106(6-c)(a) ..............................................................................................................................9
New York Unconsolidated Laws
8905-a ........................................................................................................................... passim
8905-a(1) ............................................................................................................... 5, 14-15, 19
8905-a(3)(a) ..........................................................................................................................11
8907.......................................................................................................................................19
8931.......................................................................................................................................19
State Regulations
19 N.Y.C.R.R. 205.1(a) and (l) ...................................................................................................19

vi

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

Defendants ERIC T. SCHNEIDERMAN, in his official capacity as Attorney General of
the State of New York (AG), and DENNIS ROSEN, in his official capacity as Commissioner
and Chairman of the New York State Liquor Authority and J EANIQUE GREEN, in her official
capacity as Commissioner of the New York State Liquor Authority (collectively, the SLA
Defendants), submit this memorandum in opposition to plaintiffs motion for summary
judgment. Summary judgment should be denied to plaintiffs and granted to defendants because
plaintiffs lack standing and their claim is fatally deficient.
PRELIMINARY STATEMENT
After decisions by this Court that dismissed most of their claims, the sixteen Plaintiffs in
this action now move for summary judgment for a declaration that New Yorks statutory
prohibition of combative sport, as set forth in 8905-a, New York Unconsolidated Laws (
8905-a), as well as the law that prohibits similar conduct to licensees who serve alcohol for on-
premises consumption 106(6-c), New York Alcoholic Beverage Control Law (the 2001
Liquor Law), are unconstitutionally vague as applied to them in three respects and to enjoin the
AG, the SLA Defendants and any other State officer, agency or entity (although unnamed)
from enforcing these statutes against Plaintiffs live MMA events.
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Plaintiffs have failed to sustain their burden of showing that they have Article III standing
to bring this action. The undisputed record demonstrates that they have not suffered any
concrete injury or are on the verge of suffering an injury. Specifically, thirteen of them have
stipulated that they will not present any evidence in support of such claims, apparently having
nothing to offer, and the remaining three - Zuffa LLC (Zuffa), Don Lilly (Lilly) and
Shannon Miller (Miller) can show no actual or imminent injury from any alleged vagueness
of the challenged statutes in the three respects permitted by the Court, either because their

1
MMA refers to mixed martial arts.

2

proposed conduct is clearly prohibited, is insufficiently concrete and dependent on the discretion
of third parties, or is under no threat of prosecution.
On the merits, plaintiffs attempt to support their factual assertions primarily with
inadmissible evidence, upon which summary judgment cannot be granted. Defendants have
moved to strike those assertions and the inadmissible evidence on which they are based. The
admissible evidence shows that plaintiffs motion should be denied and that summary judgment
should be granted against plaintiffs Zuffa, Lilly and Miller because their as-applied vagueness
challenge fails as a matter of law. The statutes in question provide reasonable notice of what
they prohibit, when read in the context of their purpose and manifest policy, and reasonable
guidance to enforcing officials to avoid arbitrary and discriminatory enforcement. Nor is there
evidence of inconsistent enforcement or interpretation by the enforcing officials sufficient to
invalidate the statutes. Because the Court should avoid, where possible, reaching constitutional
questions or construing state laws, abstention may be required as to certain issues of
interpretation.
The facts relevant to this motion are set forth in Defendants Response to Plaintiffs
Statement of Undisputed Facts, and in the papers submitted in support of Defendants Motion for
Summary J udgment filed J uly 31, 2014 (Docket ##92-97, 99-101).
2

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


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POINT I: AS DEMONSTRATED IN DEFENDANTS MOTION TO STRIKE, THE
COURT SHOULD NOT CONSIDER EVIDENCE IN SUPPORT OF PLAINTIFFS
MOTION THAT IS NOT ADMISSIBLE.

Plaintiffs Statement of Undisputed Facts pursuant to Local Civil Rule 56.1 includes
many allegations that plaintiffs purport to support by documents, submitted as exhibits to
plaintiffs counsels declaration (Levitt Decl.), that would be inadmissible in evidence, because
of lack of authentication, hearsay, irrelevance, opinion or other objections. A summary
judgment motion must be supported by admissible evidence. Fed. R. Civ. Proc. 56(c)(2); Local
Civil Rule 56.1(d); see also Kendall v. Metro-North Commuter Railroad, No. 12 Civ. 6015, 2014
U.S. Dist. LEXIS 65001, at *16 (S.D.N.Y. May 12, 2014) (quoting Presbyterian Church of
Sudan v. Talisman Energy, Inc., 582 F.3d 244, 264 (2d Cir. 2009)) ([O]nly admissible
evidence need be considered by the trial court in ruling on a motion for summary judgment).
Defendants have filed herewith a motion to strike such incompetent evidence, as this Court has
held is required. Arista Records LLC v. Lime Group LLC, No. 06 CV 5936, 2011 U.S. Dist.
LEXIS 35362, at *15 (S.D.N.Y. 2011) (Wood, J .). Defendants respectfully refer this Court to
defendants motion to strike.
POINT II: PLAINTIFFS HAVE FAILED TO SHOW THAT THEY HAVE STANDING
TO BRING THIS SUIT.

The moving party on a summary judgment motion bears the burden of demonstrating
the absence of a material factual question. Kendall, 2014 U.S. Dist. LEXIS 65001, at *5, citing
Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 456 (1992). As part of that
burden, a plaintiff must establish that he has suffered a concrete injury or is on the verge of
suffering one. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). Plaintiffs cannot
show, as they are required to do, that they are threatened with an injury in fact that is concrete
and particularized; that the threat is actual and imminent, not conjectural or hypothetical; that the

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threat is fairly traceable to the challenged action of the defendant; and that it is likely that a
favorable judicial decision will prevent or redress the injury. Summers v. Earth Island Institute,
555 U.S. 488, 493 (2009); accord Hedges v. Obama, 724 F.3d 170, 188 (2d Cir. 2013), cert.
denied 134 S. Ct. 1936 (2014); see also Def. SJ Mem. at 3-10. Plaintiffs have failed to come
forward with evidence sufficient to overcome their lack of standing as demonstrated in
Defendants motion for summary judgment.
A. Plaintiff Zuffa
Plaintiffs allege that Zuffa would promote MMA events in New York [b]ut for
statements by state officials that MMA is unlawful, and that it is economically damaged by its
inability to promote MMA matches in New York. Plaintiffs Statement of Material Facts
(Docket #88, Pl. 56.1) 70-74. Zuffa cannot trace its alleged injury to the alleged vagueness
of 8905-a in any of the three issues now before the Court, however. To have standing in a pre-
enforcement constitutional challenge, a plaintiff must show that its alleged injury is fairly
traceable to the challenged action of the defendant. Clapper v. Amnesty International U.S.A.,
___U.S. ___, 133 S. Ct. 1138, 1147 (2013) (emphasis added); accord Hedges, 724 F.3d at 188. If
the challenged statute is allegedly unconstitutional only as to others, the mere allegation that a
plaintiff might make more money if the activity were legal does not confer standing. Rather
standing is gauged by the specific common-law, statutory or constitutional claims that a party
presents, which requires careful judicial examination of a complaint's allegations to ascertain
whether the particular plaintiff is entitled to an adjudication of the particular claims asserted.
Intl Primate Prot. League v. Adminrs of Tulane Educational Fund, 500 U.S. 72, 77 (1991)
(quoting Allen v. Wright, 468 U.S. 737, 752 (1984)). Federal courts as a general rule allow
litigants to assert only their own legal rights and interests, and not the legal rights and interests of

5

third parties. Farrell v. Burke, 449 F.3d 470, 494 (2d Cir. 2006).
As demonstrated in Def. SJ Mem. at 5-7, Zuffa has no standing to challenge 8905-a
because of any alleged vagueness in the Exempt Organization clause in 8905-a(1). It has
communicated with the World Kickboxing Association (WKA), which has been accepted by
the New York State Athletic Commission (SAC) as an Exempt Organization, [a]bout the
possibility of the WKA sanctioning a UFC event, Schwartz 7/31/14 Decl. Ex. B (Epstein Tr.)
45:11-16, but they were very preliminary discussions with no result. Id. 45:11-16. Zuffa
has no written contract with the WKA on this subject, and although it believes the WKA was
agreeable to the concept of coordinating with Zuffa to present such an event, no decision had
been made on where or when such an event would take place. Id. 83:19 84:24. Such some
day intentions without any description of concrete plans, or indeed even any specification of
when the some day will be do not support a finding of the actual or imminent injury that our
cases require. Summers, 555 U.S. at 496 (quoting Lujan, 504 U.S. 555, 564 (1992)).
Nor can Zuffa show the third prong of the standing test, namely that a favorable judicial
decision would redress the alleged injury. Zuffas need for cooperation from the WKA, including
agreement on the financial arrangements, venues, dates, advertising and credit makes the
possibility that Zuffa will receive any direct relief from this lawsuit remote, fluctuating and
uncertain because it depends on the unfettered choices made by independent actors not before
the courts and whose exercise of broad and legitimate discretion the courts cannot presume either
to control or predict. ASARCO, Inc. v. Kadish, 490 U.S. 605, 614-15 (1989); see also Fulani v.
League of Women Voters Educ. Fund, 882 F.2d 621, 632 (2d Cir. 1989) ([P]rospects for redress
from a judicial order are diminished by the independent actions of parties not before us); J ustice
v. Kuhnappel, 985 F. Supp. 2d 334, 337 (E.D.N.Y 2013) (where requested injunctive relief can

6

only be provided by a third party beyond power of court to bind, the alleged injury cannot be
redressed by a favorable court decision).
Zuffas standing to challenge 8905-as application to professional MMA on Indian
reservations is even more tenuous. It has never promoted a mixed martial arts event on an Indian
reservation in New York, Schwartz 7/31/14 Decl. Ex. B (Epstein Tr.) 61:4-7, but only is
[p]otentially interested in doing so. Id. 67: 7-10. On this motion, it has retreated even from
that position. See Epstein Decl. 23 (If professional MMA was permitted to occur on Native
American land in New York, Zuffa would consider promoting an event in such a location . . . .).
This claim does not satisfy the requirement that threatened injury must be certainly impending
because the alleged injury relies on a highly attenuated chain of possibilities. Clapper, 133 S.
Ct. at 1148. Not only would such an event depend on the agreement of the tribe involved, but it
is just the kind of some day intention condemned in Summers, 555 U.S. at 496.
In neither their pleading nor in their present motion do plaintiffs claim that Zuffa has any
plans to conduct amateur MMA events in New York. Second Amended Complaint (Docket #54,
2d Am. Complaint) 383; Pl. 56.1 generally. This is hardly surprising, since Zuffas business
does not include the promotion or presentation of any amateur contests or exhibitions. Schwartz
7/31/14 Decl. Ex. B (Epstein Tr.) 43:17-20. Its fighters get paid; the mixed martial arts events
promoted under the UFC trade name are professional. Id. 19:3-12. Its business is the promotion
of professional MMA matches, the primary activity banned by the statute. No matter how one
defines the terms professional or amateur, there is little doubt that a public event in which
the participants fight for pay qualifies as a professional match. J ones II, 974 F. Supp. 2d at 346.
One to whose conduct a statute clearly applies may not successfully challenge it for vagueness.
Village of Hoffman Estates v. Flipside, 455 U.S. 489, 495 (1982). Zuffa lacks standing to

7

challenge 8905-a based on any alleged vagueness of the law as it concerns amateur events.
Plaintiffs attack the 2001 Liquor Law, Pl. SJ Mem. at 23-25, which prohibits certain
conduct to licensees for on-premises consumption of alcoholic beverages, but its purported facts
on this subject include no reference to Zuffa (or to any other plaintiff). See Pl. 56.1 321-352.
Plaintiff Zuffa is not a licensee for on-premises consumption of alcoholic beverages, nor has it
ever applied for a liquor license or permit. Schwartz 7/31/14 Decl. Ex. B (Epstein Tr.) 56:7-10.
Federal courts as a general rule allow litigants to assert only their own legal rights and interests,
and not the legal rights and interests of third parties. Farrell, 449 F.3d at 494. Thus, Zuffa has
no standing to challenge the constitutionality of the 2001 Liquor Law, which only regulates the
conduct of such licensees.
B. Plaintiffs Lilly and Miller
Plaintiffs Lilly and Miller base their as-applied vagueness challenge only on the
application of that statute to amateur MMA events in New York. 2d Am. Complaint 383.
Since May 2012, however, Lilly has promoted seven amateur MMA events in New York, without
objection from the New York State Athletic Commission (SAC or Commission) or the AG.
Schwartz 7/31/14 Decl. Ex. B (Lilly Tr.) 42:19-47:16. Miller produced a Cage Wars amateur
kickboxing event in 2010 with the concurrence of the SAC and he has produced 23 more Cage
Wars events in New York. Schwartz 7/31/14 Decl. Ex. D (Miller Tr.) 26:10 -30:9. After early
2012, all of such events were amateur MMA events, without interference from or contact with
the SAC. Id. 36:7-38:10. The SACs stated position in this action is that amateur MMA
matches or exhibitions are not covered by 8905-a, but may violate other New York criminal
statutes, such as those dealing with reckless endangerment, endangering the welfare of a child or
assault. Baldwin Decl. 3. The SAC has consistently been explaining that position in

8

responding to inquiries since before Lilly or Miller began promoting amateur MMA events in
2012. See Watson Decl. Exs. A, B. The Attorney Generals office (OAG) has not prosecuted
anyone under 8905-a, Maher Decl. 6; in the few investigations it has undertaken at the
request of a State agency, it declined to prosecute under 8905-a. Id. 5-6.
To establish Article III standing, threatened injury must be certainly impending to
constitute injury in fact, and . . . allegations of possible future injury are not sufficient.
Clapper, 133 S.Ct. at 1147 (quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990)) (emphasis
in original). As a preenforcement vagueness challenge, Plaintiffs must demonstrate that they
face a credible threat of prosecution. J ones II, 974 F. Supp.2d at 55-56 (quoting Holder v.
Humanitarian Law Project, 561 U.S. 1, 15 (2010)). The record establishes that Lilly and Miller
are not threatened with prosecution in their promotion of amateur MMA events, nor have they
been subjected to uncertainty by any state agency as to whether they are in any danger of such
prosecution. Their professions of fear that the State might change its mind, Pl. 56.1 280(m), are
too speculative for Article III purposes. Clapper, 133 S. Ct. at 1147. [P]ersons having no
fears of state prosecution except those that are imaginary or speculative, are not to be accepted as
appropriate plaintiffs in constitutional challenges to criminal statutes. Younger v. Harris, 401
U.S. 37, 42 (1971); see also Kampfer v. Cuomo, No. 13 CV 82, 2014 U.S. Dist. LEXIS 1479, at
*12-13 fn. 8 (E.D.N.Y. J an. 7, 2014) (noting that plaintiff cannot make an as-applied challenge
to a criminal statute because it has not been applied to him, nor has he shown, or even alleged, a
genuine threat of enforcement.). Neither Lilly nor Miller has shown that enforcement of
8905-a against either of them is even remotely likely, that the State intends or has threatened
to prosecute them for their amateur events, or that individuals even remotely similarly situated
have been subjected to prosecution. See Hedges, 724 F.3d at 202.

9

Neither Lilly nor Miller claims to have any injury from any alleged vagueness of 8905-
a with respect to Exempt Organizations. 2d Am. Complaint 383. Lilly received no response to
his inquiry to the WKA in 2013 about sanctioning an MMA event, Schwartz 7/31/14 Decl. Ex. C
(Lilly Tr.) 55:8-56:3,
3
or to his inquiries addressed to other entities on the Exempt Organizations
list, Id. 58:23-59:6. At the time of his inquiries, he had not chosen a venue or date for the event.
Id. 57:3-57:13. When Miller suggested that he may be interested in having an MMA event
sanctioned by an approved organization, he specified that his interest concerned amateur MMA
events. Id. Ex. D (Miller Tr.) at 39:25-40:13. Neither of these plaintiffs can show a concrete and
particularized injury from any alleged vagueness of the Exempt Organization language in
8905-a sufficient to demonstrate standing to sue.
Neither Lilly nor Miller has alleged that any as-applied constitutional challenge of
8905-a with respect to professional MMA events on an Indian Reservations applies to him. 2d
Am. Complaint 383. Plaintiff Lilly concedes that he has never promoted an event (professional
or amateur) on an Indian Reservation for personal reasons, Schwartz 7/31/14 Decl. Ex. C (Lilly
Tr.) at 20:9-20:16, 22. Plaintiff Miller has never attempted to hold an event on an Indian
reservation, Schwartz 7/31/14 Decl. Ex. D (Miller Tr.) 44:20-22. Neither one of them even
comes close to an actual or imminent injury on this ground, and thus both lack standing to
maintain such claims. Clapper, 133 S. Ct. at 1147; Summers, 555 U.S. at 496.
As the text of the 2001 Liquor Law makes clear, the only persons or entities that are
subject to that statute are retail licensees for on-premises consumption. N.Y. Alco. Bev. Cont.
Law 106(6-c)(a). Neither Lilly nor Miller has ever held or applied for such a license. Schwartz
7/31/14 Decl. Ex. C (Lilly Tr.) 73:15-74:3, Ex. D (Miller Tr.) 42-43. They are not subject to its

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

10

regulation and do not have standing to assert an as-applied constitutional challenge based on the
imagined injury that might be suffered by unidentified others presumably the un-named arenas,
gyms or auditoriums in which their promoted events might be held. Federal courts as a general
rule allow litigants to assert only their own legal rights and interests, and not the legal rights and
interests of third parties. Farrell, 449 F.3d at 494.
C. The Remaining Plaintiffs
Plaintiffs and defendants entered into a Stipulation dated J anuary 30, 2014, providing that
the plaintiffs J ones, Carano, Edgar, Hamill, Stann, Hobeika, Beth Hurrle, Donna Hurrle,
Kardian, Lozito, Owings, Reitz, and Santiago (the Stipulating Plaintiffs), will present no
testimony or other evidence in this case, oral or written, in support of any of the as-applied
vagueness claims. Schwartz 7/31/14 Decl. Ex. A. In reliance on that agreement and
representation, defendants agreed not to take the depositions of those plaintiffs. Id. The
Stipulating Plaintiffs thus can present no evidence that they have suffered any concrete injury or
are on the verge of suffering one because of the vagueness of either 8905-a or the 2001 Liquor
Law as applied to their conduct. Summary judgment must be granted dismissing the Second
Amended Complaint as to them.
POINT III: 8905-a IS NOT UNCONSTITUTIONALLY VAGUE

Plaintiffs now move for summary judgment on the Third Cause of Action in their
Second Amended Complaint, which retains all the facial and as-applied vagueness claims that
this Court dismissed in J ones II, although they appear to be asserting against the AG only the as-
applied claims that survived that decision. See 2d Am. Complaint at 141 fn. 160. Their
demands for relief, however, still seek a broad declaration that the Professional Combative
Sport Ban is unconstitutionally vague as applied to Plaintiffs and on its face and an injunction

11

preventing Defendant [presumably the AG] or any other officer, department, or entity of the
State of New York from enforcing the law against Plaintiffs live MMA events. Id., ad
damnum h. They try to support their arguments, however, with voluminous and mostly
inadmissible purported evidence of the history of MMA, as well as the personal opinions and
positions of various state employees and others on hypothetical scenarios and conduct that is not
the Plaintiffs live MMA events, to which they say their claim relates. Defendants have
moved to strike the inadmissible evidence. Such objections to admissibility as hearsay, lack of
authentication and opinion evidence, dealt with in defendants motion to strike, will not be
repeated here, although the arguments below refer to the irrelevance and immateriality of much
of plaintiffs purported evidence.
A. Professional MMA Events Sponsored By Exempt Organizations

Plaintiffs contend that the laws with criminal penalties are subject to a stricter vagueness
test, Pl. SJ Mem. at 7-8, but they fail to take into consideration the nature of the crime in
question. Section 8905-a(3)(a) makes [a] person who knowingly advances or profits from a
combative sport activity guilty of a misdemeanor and, if repeated within five years, a felony.
8905-a(3)(a) (emphasis added). This knowledge requirement reduces any potential for
vagueness. Holder, 561 U.S. at 21; see also U.S. v. Tracey, 967 F. Supp.2d 731, 744 (S.D.N.Y.
2013) (reviewing law).
Contrary to plaintiffs contention, Pl. SJ Mem. at 11-12, the text of the Exempt
Organization clause in 8905-a does not support plaintiffs reading. The listed Exempt
Organizations appear from their names to be devoted to long-recognized traditional martial arts:
judo, tae kwon do, karate or kenpo. The text then authorizes the SAC to promulgate regulations
to establish a process by which organizations could be added to or removed from the list, which

12

process must include the consideration of whether the organization has as its primary purpose
instruction in self-defense techniques, requires the use of hand, feet and groin protection and has
an established set of rules that require immediate termination of the match in the event of severe
punishment or danger of serious physical injury. This language suggests that the exemption was
intended to favor responsible organizations that specialized in such traditional sports and that
complied with the described purpose, protection and rules. See Watson Decl. 6. MMA, as
practiced by plaintiff Zuffa, does not comply with these factors: protection of the feet is in fact
forbidden, and the referee has discretion as to whether and when to stop a fight (he may but is not
required to take advice from the ringside physician). See Levitt Decl. Ex. 27 at 5. Although it also is
in the gym business, Zuffas business is mainly a global media business. Id. Ex. 26 at 18.
Plaintiffs contend that MMA is today a different sport from what the Legislature banned, Pl. SJ
Mem. at 12-13, but even if that were so (a contention that defendants dispute), it still is not what the
Legislature intended to exempt when it drafted the Exempt Organizations list.
Much of plaintiffs argument with respect to this issue is devoted to hypothetical
discussions of differences among State officials in their personal interpretations of how the
Exempt Organizations clause might be applied to sports that are not professional MMA as
practiced by Zuffa, such as kickboxing, Muay Thai, San Da and Brazilian jiu-jitsu, and how the
term single-discipline might be applied to them. Pl. SJ Mem. at 10-17. The expertise of OAG
or SAC personnel with respect to these other sports is not the issue here, however. In an as-
applied vagueness challenge, [t]he evaluation of whether [a statute] . . . is vague as applied to
[a litigant] must be made with respect to [the litigants] actual conduct and not with respect to
hypothetical situations at the periphery of the [statutes] scope. VIP of Berlin, LLC v. Town of
Berlin, 593 F.3d 179, 189 (2d Cir. 2010) (quoting Perez v. Hoblock, 368 F.3d 166, 175 (2d Cir.
2004)); see also New York v. Ferber, 458 U.S. 747, 767 (1982) (vagueness challenges must be

13

evaluated based on the particular application of the statute and not on the ground that [the
statute] may conceivably be applied unconstitutionally to others in situations not before the
Court) ; J ones II, 974 F. Supp. 2d at 345 ([i]n the absence of First Amendment concerns,
which this Court has determined are not implicated by professional MMA, courts generally
view vagueness challenges to a statute as applied to the defendant's case (quoting United
States v. Farhane, 634 F.3d 127, 138 (2d Cir. 2011))).
In Farrell, an as-applied and facial vagueness challenge of the revocation of the plaintiffs
parole for possessing pornographic material in violation of a condition of his parole, then-
J udge Sotomayor concluded that whether or not the term pornography was inherently vague
and [n]one of the parties, witnesses or relevant government entities seemed to agree on the
meaning of the term, the material found in Farrells possession fit comfortably within the
views of each of them. 449 F.3d at 490-492. The court further concluded that [w]here a statute
provides insufficient general guidance, if the conduct at issue falls squarely in the core of what
is prohibited, then there is no substantial concern about arbitrary enforcement because no
reasonable enforcing officer could doubt the laws application in the circumstances. Id. at 493-
94; accord Skilling v. U.S., 561 U.S. 358, 412 (2010); Dickerson v. Napolitano, 604 F.3d 732,
746-48 (2d Cir. 2010).
Thus, the alleged differences among SAC employees, or between them and the OAG
witness, in their interpretation of the Exempt Organization provision as it relates to judo, or
kickboxing, or San Da or any sport other than professional MMA, see Pl. SJ Mem. at 6,10-11,
14-15, is immaterial. The SAC has consistently taken the position, certainly since 2002 if not
longer, that the Exempt Organizations provision does not permit a professional MMA event in
New York, even if sanctioned by an Exempt Organization. Spindola Decl. 7; Watson Decl.

14

5; Baldwin Decl. 3.
4
See also Levitt Decl. Ex. 12 (Leary Tr.) 188-189. The relevant
enforcement bureau of the Attorney Generals Office (OAG) has never had occasion to
interpret or act upon the term martial arts as it is used in 8905-a(1), either in connection with
the Exempt Organizations list or otherwise. Maher Decl. 8. Accordingly, in its function as a
law enforcement agency, the OAG has not had occasion to take a position on the meaning of that
term. Id; see also Levitt Decl. Ex. 7 (Maher Tr.) 168-171. Regardless of the statutes clarity in
other applications, where the statutory terms are clear in their application to the [plaintiffs]
conduct, the vagueness challenge must fail. U.S. v. Lahey, 967 F. Supp. 2d 731, 745 (S.D.N.Y.
2013) (quoting Holder, 561 U.S. at 21).
Even if State employees differed on their interpretation of the statute in some relevant
way (which they have not), [t]he vagueness doctrine does not suggest that all courts and state
officials must agree on a specific construction of a statute in order for it to meet the fair notice
requirement. Koslow v. Horn, No. 09 Civ. 6597, 2010 U.S. Dist. LEXIS 144693 at *20
(S.D.N.Y. Dec. 14, 2010), R&R adopted 2012 U.S. Dist. LEXIS 99251 (S.D.N.Y. J uly 17,
2012). Indeed, if differences in statutory interpretation from one court to another rendered such
statutes unconstitutionally vague, there would be a frightful number of fatally vague statutes
lurking about. United States v. Rybicki, 354 F.3d 124, 143 (2d Cir. 2003). Many statutes pose
challenges in interpretation to personnel who enforce them, as well as to courts, but perfect
clarity and precise guidance have never been required. U.S. v. Williams, 553 U.S. 285, 304
(2008). The prohibition against excessive vagueness does not invalidate every statute which a
reviewing court believes could have been drafted with greater precision. . . . Many statutes will
have some inherent vagueness, for in most English words and phrases there lurk uncertainties.

4
Since the SAC has no power to prosecute or even sue a violator of this criminal statute, it is not an enforcement
agency with respect to it. However, to the extent its public positions and advice may be considered enforcement, it
has never varied on this issue.

15

Evergreen Association, Inc. v. City of New York, 740 F.3d 233, 244 (2d Cir. 2014) (quoting
Rose v. Locke, 423 U.S. 48, 49-50 (1975)). As the Supreme Court noted in Rose, [e]ven
trained lawyers may find it necessary to consult legal dictionaries, treatises, and judicial opinions
before they may say with any certainty what some statutes may compel or forbid. Id. at 50.
Thus, for example, the alleged inability of deposition witnesses from either the OAG or
the SAC to explain the origin or scope of the term single-discipline, see Pl. SJ Mem. at 11, 16-
17, does not support plaintiffs vagueness claim, where the clear policy of the SAC has
consistently been that, unlike the traditional single-discipline martial arts as practiced by the
Exempt Organizations listed in 8905-a(1), professional MMA is banned in New York, even if
sanctioned by an Exempt Organization. Spindola Decl. 4-7; Watson Decl. 5-7; Baldwin
Decl. 3. See Keepers, Inc. v. City of Milford, 944 F. Supp.2d 129, 158-59 (D. Ct. 2013) (that
City Attorney produced as 30(b)(6) witness was stumped at deposition by surprise
hypotheticals does not support vagueness claim in face of official city position as set out in
affidavit).
5

Plaintiffs reliance on the personal opinions of SAC and OAG lawyers, independent of
their agencys position, Pl. SJ Mem. at 9, 18, is misplaced. It is hardly surprising that a talented
agency lawyer may have his or her own personal analysis of the possible readings of a statute
that is why determination of agency positions frequently require internal discussion but both
the notice and guidance prongs of the vagueness standard must depend on the statutes

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


16

interpretation as reflected in agency action or public communication, rather than such internal
discussion or private thought. Cf. U.S. v. Lachman, 387 F.3d 42, 54 (1st Cir. 2004) (in light of
rules for making agency substantive rules and statements of general policy, [t]he non-public or
informal understandings of agency officials concerning the meaning of a regulation are thus not
relevant); see also Rumsfeld v. United Technologies Corp., 315 F.3d 1361, 1369 (Fed. Cir.
2003) (testimony of former members of Cost Accounting Standards board as to understanding of
regulations irrelevant to construction of those regulations).
6
Plaintiffs repeated posing of
hypotheticals to these witnesses to elicit their opinions on the possible coverage of the provision
to conduct other than that of the actual litigants, see, e.g., Pl. SJ Mem. at 10, 11, 15, 16, 17, is
improper and cannot be considered in this case. VIP of Berlin, 593 F.3d at 189.
Thus, without their reliance on hypotheticals, their detours into other sports and their
intrusion into the private thoughts of State employees, plaintiffs cannot overcome the evidentiary
record, which demonstrates that the law enforcement personnel of the OAG have never had
occasion to interpret or enforce the Exempt Organization provision, Maher Decl. 8, and that the
SAC has consistently taken the position that the clause did not permit an Exempt Organization to
sanction an MMA event in New York, Spindola Decl. 4-7; Watson Decl. 5-7; Baldwin
Decl. 3. Its treatment of the other sports to which plaintiff has referred is irrelevant, but it has
also been consistent, based on the Commissions understanding of those sports. See Alleyne
Decl. 11-28.
The only blip on the screen in that consistent history to which plaintiffs point is
statements made by the OAG litigation counsel in the course of this case. They even repeat the

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

17

false assertion they have made previously that the AGs Reply Memorandum on the First
Motions to Dismiss herein (Docket #26) at page 6 took . . . the position that plaintiffs would be
allowed to promote a professional MMA event in New York it were sanctioned by one of the
Exempt Organizations. Pl. SJ Mem. at 8. Defendants responded to this baseless argument in
their Memorandum of Law in support of their motion to dismiss the First Amended Complaint
almost two years ago. Docket #37 at 20. That response need not be repeated here.
As to the statements by counsel for the AG at the oral argument of the motion to dismiss
the First Amended Complaint, Pl. SJ Mem. at 8-9, promptly upon being advised of these
statements by the OAG litigation counsel, the General Counsel of the New York Department of
State (DOS), Susan Watson, Esq., advised the OAG of her disagreement with the position
expressed as contrary to the intent of the statute. Watson Decl. 7. Counsel for the AG promptly
advised Magistrate J udge Pitman (before whom a settlement conference had been scheduled) of
the correction, then advised this Court by letter dated March 8, 2013. See Endorsed Order dated
March 12, 2013 (Docket #44), by which the Court directed the parties to submit supplemental
briefing on the issue. The AG submitted its Supplemental Memorandum of Law in Support of
His Motion to Dismiss the First Amended Complaint (Def. Suppl. Mem.) on March 22, 2013
(Docket #46). The mistaken remarks by litigation counsel at oral argument on an issue that the
OAG had never had occasion to address in its enforcement of the statute, Maher Decl. 8, which
were promptly corrected and prejudiced no one, are not evidence of inconsistent enforcement,
nor are they evidence of the vagueness of the clause, on which the SACs position has been
consistent.
Defendants respectfully refer to Def. Suppl. Mem. (Docket #46), in which the SAC/DOS
position on the Exempt Organization issue that was communicated to and adopted by the AG, is

18

set forth. In both the present motion and in defendants motion for summary judgment also now
before the Court, the construction of the Exempt Organization clause in 8905-a is a delicate
task, for it is not within [the courts] power to construe or narrow state laws. Grayned v. City of
Rockland, 408 U.S. 104, 110 (1972). Here, New York law provides the authority for such a
construction, since the New York courts have strongly adopted the rule that the legislative
history of a statute should be examined, notwithstanding its clear language, to ascertain and give
effect to the intention of the Legislature. See Def. SJ Mem. (Docket #93) at 13-14; Def. Suppl.
Memo. (Docket #46) at 5-7. The legislative history of 8905-a shows that whatever its intent
might have been with respect to other martial arts or styles of fighting (e.g., kickboxing or muay
thai), the intent of the Legislature in 1997 - indeed, its fundamental purpose - was to ban
professional matches or exhibitions of the style of personal combat that was then known as
Ultimate Fighting or Extreme Fighting, which its promoters now have repackaged as Mixed
Martial Arts,
7
and that the listed Exempt Organizations were not intended to be free to sponsor
the very Ultimate Fighting that the statute was enacted to prevent.
8
Def. Suppl. Mem. (Docket
#46) at 3-5; Def. SJ Mem. (Docket #93) at 13-14. Indeed, construing the statute in that manner
would undermine the statutes stated purpose and would circumvent the total ban of mixed
martial arts.
This Court has expressed skepticism as to the value of 8905-as legislative history,
given the changes in MMA since its enactment. J ones II, 974 F. Supp. 2d at 341. Where an
otherwise acceptable construction would raise constitutional problems, however, the Court must

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

19

construe statutes, where necessary and possible, to avoid serious constitutional issues. Field
Day, LLC. v. County of Suffolk, 463 F.3d 167, 182 (2d Cir. 2006). New York authority
suggests that if presented with the issue, the New York courts would be likely to interpret the
Exempt Organizations provision in 8905-a in accordance with the statutes manifest policy
intended to be promoted as shown in the legislative history, an interpretation that would avoid
the constitutional issue. This Court may render a decision on the federal constitutional question
unnecessary by resolving this issue on the basis of the state law cited above, Allstate Ins. Co. v.
Serio, 261 F.3d 143, 150 (2d Cir. 2001), or may abstain from decision of the constitutional issue
if (1) the state statute at issue is unclear; (2) resolution of the federal constitutional issue depends
on the interpretation of the state law; and (3) the law is susceptible to an interpretation by a state
court that would avoid or modify the federal constitutional issue. Vermont Right to Life
Committee, Inc. v. Sorrell, 221 F.3d 376, 385 (2d Cir. 2000). Indeed, abstention in some
circumstances may be appropriate in suits that challenge a state statute on vagueness grounds.
Greater New York Metropolitan Food Council v. McGuire, 6 F.3d 75, 77 (2d Cir. 1993). See
Def. SJ Mem. (Docket #93) at 20-21. Plaintiffs summary judgment motion as to the Exempt
Organizations clause should be denied.
B. Amateur MMA Events in New York
8905-a expressly limits its definition of the banned combative sport to a professional
match or exhibition, 8905-a(1). It contains no definition of the word professional, and
plaintiffs contend that State officials cannot agree on what it means. Pl. SJ Mem. at 19-20.
Definitions of both professional and amateur appear in the Commissions enabling statutes,
however, as well as in the Commissions regulations. N.Y. Unconsol. Laws, 8907, 8931; 19
N.Y.C.R.R. 205.1(a) and (l). Although these definitions by their terms apply to boxing, the

20

SACs position has been that these commonly understood terms to combative sport was
reasonable. Watson Decl. 10. Even before Ms. Watsons tenure as DOS General Counsel
(2007-2013), Mr. Spindola, who was General Counsel of the SAC from 2002 to 2007, applied
the same standard. Spindola Decl. 10. Mr. Spindola determined that the use of those
definitions was appropriate because they were part of the same body of law as 8905-a, were
accessible to the public and were familiar to most of the martial art promoters, many of whom
were also boxing promoters. Id. The requirement of consistency alone would justify the
Commissions reference to these definitions in interpreting 8905-a.
9

Moreover, the words professional and amateur have ordinary dictionary meanings,
see J ones II, 974 F. Supp.2d at 49-50, and have meanings as applied to the conduct of Zuffa,
Lilly and Miller such that ordinary people using common sense could grasp the nature of the
prohibited conduct. United States v. Yongwang, No. 11 Cr. 730, 2013 U.S. Dist. LEXIS 16153,
at *57 (S.D.N.Y. Feb. 5, 2013). Although this Court noted that plaintiffs had on the last motion
to dismiss raised serious questions regarding the utility of such generic definitions in
differentiating close cases, Id. at 50, neither Zuffa, Lilly nor Miller are involved in any such
close cases.
10
Lilly and Miller and Zuffa all regard getting paid as defining an MMA fighter as
professional. Levitt Decl. Ex. 24 (Lilly Tr.) at 63:4-8; Id. Ex. 33 (Miller Tr.) at 35:17-24; Id. Ex.
26 (Epstein Tr.) at 19:13-20. This Court has concluded that there is little doubt that a public
event in which the participants fight for pay qualifies as a professional match. J ones II, 974 F.
Supp. 2d at 346. Zuffa always pays its fighters. Schwartz 7/31/14 Decl. Ex. B (Epstein Tr.) at
38:21-40:6. Lilly and Miller have been conducting amateur fights for several years without

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

21

interference from the SAC. Id. Ex. C (Lilly Tr.) at 42:19-43:2; Id. Ex. D (Miller Tr.) at 29:16-
30:9. Thus, whether or not the term professional is vague in other respects, Zuffas regular
conduct fits within any reasonable understanding of the term, Farrell, 449 F.3d at 490, and
Lillys and Millers conduct with respect to MMA does not.
11

The interpretation of 8905-a among State officials with respect to amateur MMA events
has been consistent. Any differences in approach appear to be the product of changes over time
in the number of amateur events that came to SACs attention, as well as personality differences.
See Spindola Decl. 9; Watson Decl. 8-9, 11. The AG has never prosecuted anyone for
violation of 8905-a, and none of the three matters it was asked to investigate that concerned
this statute resulted in prosecution thereunder because of the statutory definition of the crime as
professional matches or exhibitions. Maher Decl. 5-6. From 2002 to 2007, Mr. Spindola,
read the statute to focus on professional and since inquiries about amateur MMA events were
rare, he assumed a proposed event was professional unless he received satisfactory proof of its
amateur status, proof that he never received. See Spindola Decl. 9. During the 2008-2013
period, amateur MMA events remained rare in the early years, so although SAC responses to
inquiries sometimes did not distinguish between professional and amateur. Watson Decl. 8. As
underground mixed martial arts began coming to its attention, the Commissions responses
reflected its interpretation of 8905-a that amateur events were not covered by that law but
created serious risk of injury and could violate other New York laws. Id. 9 and Ex. A. Ms.
Watsons written advice to three New York City District Attorneys as well as the OAG in March
2011 (well before this action commenced), Id. 11 and Ex. B, also reflected that interpretation.

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

22

The current position of the SAC is consistent. Baldwin Decl. 3.
12

Plaintiffs apparently allege that some of the responses by the SAC to inquiries about
amateur MMA events (and as explained in Point III(A) above, it is only communications about
MMA that are relevant, not other sports) were unclear or implied that such events were banned
by 8905-a. Such miscommunications, if they occurred, are hardly the fault of the statute,
however, especially in light of the clear statutory definition of the banned sport as professional.
If an SAC staff member occasionally gave a wrong answer, it is not evidence of vagueness of the
statute. As the Second Circuit has said about even more serious prosecutorial errors, [w]e doubt
that such occasional prosecution in error is much evidence that a statute is too vague. . . .
Prosecutors sometimes make mistakes as to the reach of criminal statutes; courts correct them.
U.S. v. Rybicki, 354 F.3d at 143. New York law provides a procedural remedy to those who are
aggrieved by actions of State officials that are allegedly arbitrary or contrary to law. See N.Y.
Civil Practice Law and Rules 7801-7806. If a government official is believed to act or
express a position not justified by the law, the remedy is not to strike or enjoin the law.
C. Professional MMA Events on Indian Reservations in New York
New York has jurisdiction over offenses on Indian reservations within the State of New
York to the same extent that it has over offenses committed elsewhere in the State. 25 U.S.C.
232. While this grant of jurisdiction does not apply to regulation of conduct that it generally
permits, it does apply to conduct that the State generally prohibits. California v. Cabazon Band
of Mission Indians, 480 U.S. 202, 209 (1987). Section 8905-a entirely prohibits mixed martial
arts everywhere in New York State. Thus, it may be prohibited on Indian reservations.

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

23

Plaintiffs argue that the State sometimes asserts that [ 8905-a] does ban MMA on such
territory, and at other times says it does not. Pl. SJ Mem. at 23. This assertion is factually
wrong. The Attorney General has published an opinion that MMA is illegal on Indian
reservations, and Glenn Alleyne, a Community Coordinator for the Commission, routinely tells
inquirers that the Commissions official position is that New York law prohibits MMA
everywhere in New York State, including on Indian reservations. 1997 N.Y. Op. Atty. Gen.
(Inf.) 1093, Opinion No. 97-39 (see Maher Decl. Ex. A); Alleyne Decl. 32. Plaintiffs can point
to only one hearsay statement that a state agent, namely Mr. Alleyne, allegedly made to the
effect that 8905-a would not apply on Indian reservations, and Mr. Alleyne denies ever having
made such a statement. Alleyne Decl. 32. The States position has been completely consistent.
Plaintiffs also allege that MMA events have occurred on Native American territories. Pl.
Br. at 23. The Commission is not aware of any such events and does not condone such events.
Alleyne Decl. 33. Nor have any such events come to the attention of the OAG. Maher Decl.
10. But even if such events have occurred, the fact that the lawbreakers may have successfully
thwarted enforcement of the statute would not render it inoperative. United States v. Morrison
(Morrison I), 596 F. Supp. 2d 661, 679 (E.D.N.Y. 2009). Indeed, even if Plaintiffs could find
evidence of state agents knowingly declining to enforce 8905-a in such instances (although no
such evidence exists),
13
the failure of the executive branch to enforce a law would not result in its

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

24

modification or repeal. United States v. Morrison, 686 F.3d 94, 106 (2d Cir. 2012) (Morrison
II), cert. denied, 133 S. Ct. 955 (2013). A plainly worded statute cannot be rendered
unconstitutionally vague by the failure of the executive branch to enforce what the law clearly
proscribes. Morrison I, 596 F. Supp. 2d at 694.
POINT IV: THE 2001 LIQUOR LAW IS NOT UNCONSTITUTIONALLY VAGUE AS
APPLIED TO ZUFFA, MILLER OR LILLY.
Plaintiffs argue that the Liquor Law clearly permits Exempt Organizations to sanction
professional MMA. Pl. SJ Mem. at 24. Of course, if the law were truly so clear, then it could
not be vague, as plaintiffs claim. In any event, for much the same reasons cited above regarding
8905-a, the Liquor Law similarly prohibits liquor licensing of events at which MMA events
occur. Defendants have explained on their summary judgment motion why summary judgment
should be granted to defendants on this statute. See Def. SJ . Mem. at 21-24.
Moreover, plaintiffs argument regarding what the SLA considers single-discipline and
amateur boxing, Pl. SJ Mem. at 24-25, is a red herring. Only whether the 2001 Liquor Law is
vague as applied to the particular facts in question is relevant. United States v. The Spy
Factory, 951 F. Supp. 450, 465 (S.D.N.Y. J an, 9, 1997) (citing United States v. Santos, 64 F.3d
41, 47 (2d Cir. 1995)). This due process inquiry is limited to the particular circumstances of this
case, and the Court cannot consider the possible vagueness of the 2001 Liquor Law in
hypothetical applications not presently before the Court. Village of Hoffman Estates v.
Flipside, 455 U.S. 489, 495 (1982). With respect to MMA, the SLAs enforcement has been
uniformly consistent. Following the lead of the SAC, it has permitted alcohol to be served at
single discipline martial arts events sanctioned by the WKA, but plaintiffs cannot show that any
SLA official, past or present, has ever issued a temporary alcohol permit or allowed a retail
licensee to host a mixed martial arts match or exhibition, whether or not the event was sponsored

25

by an Exempt Organization. Frering Decl. 7-9. Even if the statute may not be clear in every
application the dispositive point here is that the statutory terms are clear in their application to
plaintiffs proposed conduct, which means that plaintiffs vagueness challenge must fail.
Holder, 561 U.S. at 21.
CONCLUSION
Plaintiffs motion for summary judgment should be denied. Summary judgment should
be granted to defendants and against plaintiffs.
Dated: New York, New York
August 21, 2014 Respectfully submitted,

ERIC T. SCHNEIDERMAN
Attorney General of the
State of New York
Attorney for Defendants
By:
___S/______________________
J OHN M. SCHWARTZ
Special Litigation Counsel
120 Broadway - 24th Floor
New York, New York 10271
(212) 416-8559
J OHN M. SCHWARTZ
J ULIA H. LEE
J OSHUA PEPPER
STEPHEN S. HO,
Of Counsel

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UNITED STATES DISTRICT COURT

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