Monday, December 3, 2012

No Backsies Eric: Doublespeak from Albany Regarding NY MMA

Ready for the next chapter in the continuing NY MMA saga? To catch up on the back story about why professional Mixed Martial Arts (MMA) is still banned in New York State (NYS) after fifteen years and the Zuffa, LLC spearheaded federal lawsuit which addresses the ban, read this summary.

On October 26, 2012 NYS Attorney General Eric T. Schneiderman filed his latest Motion to Dismiss the Zuffa, et. al. federal lawsuit against the NYS ban on live professional MMA.
As I read through this document, which I encourage you to do, several passages simply made me shake my head in wonder.  Here is one (page 4):
“Sections 1 and 2 of [NY Unconsolidated Laws] 8905-a together prohibit the conduct in the state of New York any “combative sport,” which is defined as “any professional match or exhibition” the rules of which permit “kicks, punches or blows of any kind” to the opponent’s body other than boxing, sparring, wrestling, or martial arts by any number of organizations specifically listed in the statute and connected to judo, karate, tae kwon do and kenpo. The State Athletic Commission is authorized to establish a process to allow inclusion or removal of martial arts organizations from this list.”
Aside from the fact that there are many more martial arts than judo, karate, tae kwon do, and kenpo; as a coach and promoter (who could arguably be a criminal based on the NYS argument), NYS resident, and head of a martial arts organization I have had the pleasure of discussing this very topic in the mid 2000’s with the NYS Athletic Commission. I attempted to have the American Sambo Association added to the list of approved organizations in New York. I was told by Hugo Spindola, then Executive Deputy Commissioner and General Counsel of the NYS Athletic Commission, that it was impossible as it would require a statutory change! Now MMA supporters are trying to change the statute and the state is arguing that we don’t need to because the commission can amend the approved list its own?

The Motion then goes on to address several points in NYS’s argument with tons of legalese, detail, and counterpoint. Most of which is expected, and has been consistent all through the case.

Then, on page 16 it starts to get good (or bad?). As you may recall, in January this year, NYS filed its original motion to dismiss. Within that document, drafted by Eric Schneiderman, the following text appeared (bold added):
 “Plaintiffs also object to NY Unconsol. Law Sec. 8905-a, because, while it prohibits ‘live professional MMA,’ it is silent as to amateur MMA contests, which ‘undoubtedly occur every day’.  They further claim the statue is ‘vague’ as it is unclear whether the ban applies to amateur MMA exhibitions.  To the extent that it does not ban amateur MMA exhibitions, Plaintiffs assert that the disparate treatment of professional and amateur MMA activities violates the equal protection clause.  This claim, too, is meritless.  The statute’s provision on its face explicitly speaks to ‘professional’ combative sports and does not address amateur sports.  Moreover, while the legislature, in another statute, regulates amateur boxing and wrestling, the legislature has not enacted a provision expressly addressing any amateur martial arts activity.  Accordingly, the statute does not treat amateur MMA bouts any differently from amateur bouts involving traditional martial arts.  And, to the extent that the legislature, with regard to traditional and mixed martial arts, has drawn a distinction between amateur and professional bouts, it hardly needs saying that a rational basis exists for such a distinction.  Moreover, Plaintiffs, themselves, aver in the Complaint that it was not until the statute was enacted that amateur MMA contests began to proliferate.  Plainly, the legislature had a rational basis for explicitly banning professional MMA bouts, but not to address amateur contests.”
This admission that amateur MMA is legal in NY, largely overlooked at first, literally transformed the face of MMA in our state. Since that time non-underground amateur events have cropped up all over the state with full knowledge and non-interference of the NYS Athletic Commission. Clearly, Schneiderman made a tactical error and as a result, the NY MMA scene seemed to have breathed a bit of new life into its lungs.

Now, it seems, after the Plaintiff’s amended complaint clearly points out Schneiderman’s declaration that amateur MMA is legal as well as NY’s long history of flip flopping on the legality of amateur MMA (demonstrating the vagueness of the law), Mr. Schneiderman is trying to use some Orwellian doublespeak to cover his tracks and correct his blunder. In essence he is eloquently saying “I take that back. I only said it because you did!”
From the current motion (bold added):
“Defendant Schneiderman’s Reply Momorandum of Law in support of the First Motion to Dismiss (Docket # 26) at 5-6 (emphasis added). It was not presented as the Attorney General’s interpretation of the statute, but rather a description of an assertion in the plaintiff’s Memorandum of Law that flatly asserts (citing their original complaint) that “today highly-regulated professional MMA is banned, while amateur MMA occurs under dangerous conditions without regulation.”  Plaintiff’s Memorandum of Law in Opposition to the First Motion to Dismiss (Docket # 23) at 25, citing the original complaint (Docket # 1) ¶¶76, 103-110, 285. Thus the position that amateur MMA was not covered by 8905-a was not that of the Attorney General, but rather of the plaintiffs See Original Complaint (Docket # 1) ¶¶76, 103. The Attorney General took no position on that question, but rather argued that such an “alleged loophole” did not warrant striking the law on equal protection or due process grounds. An argument with which this Court ultimately agreed. 8/13/12 Order at 11-2. The Attorney General’s Reply Memorandum on the First Motion to Dismiss has no bearing on whether the statue does or does not cover amateur MMA.
Then Schneiderman tried to backtrack on his own assertion from the original motion to dismiss that the law currently provides a channel, and was designed as such, for professional MMA in NY were it to be sanctioned by one of the approved martial arts organizations noted in the 1997 law (such as the WKA, who does sanction professional Muay Thai in NY).

On page 6 of the original motion to dismiss, Schneiderman states:
“The proposed Muay Thai event appears to confirm that the 1997 Legislation provides a procedure by which a sport claiming to be a “martial art” or to have similar characteristics, can enter the New York market under the sponsorship of a listed organization. The UFC has apparently even decided not to explore this path, preferring an all out attack on the statute. But, the procedures availability shows the legislature’s reasonable intent in 1997 to allow for future flexibility.”
Now, in his current Motion to Dismiss:
The Attorney General’s observation was clearly not intended as a “formal position” on the meaning of the law, but rather a somewhat puzzled response to plaintiff’s categorical statement in their papers on the First Motion to Dismiss that Muay Thai was a mixed martial art that was “not exempted from the Ban,” whereas its events were allegedly sanctioned by a banned organization.”
MMA Journalist Jim Genia also points out Schneiderman’s “suggestion that Zuffa could circumnavigate the longstanding ban on professional MMA by utilizing one of the statutorily-approved sanctioning bodies to get a UFC event into the state.”
He quotes an October 26th letter drafted by attorneys representing Zuffa, et. al. to Schneiderman:
“Based at least in part on positions taken by your Office in this case, MMA and other combative sport events are proliferating in New York.  Thus, the UFC is beginning the process of planning a professional MMA event to be held in New York, under the auspices of one of the exempt organizations listed in the Combative Sport Ban and pursuant to the Unified Rules of Mixed Martial Arts.”
There is plenty more in the new Motion to Dismiss for you to sink your teeth into. I highly suggest you read the original documents. They are long, but worth it to see what lengths NYS will go to keep this prohibition of professional MMA alive.

Stephen Koepfer
Founder, Coalition to Legalize MMA in NY

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