New York granted second extension to respond to Zuffa Preliminary Injunction

November 16, 2015

Judge Kimba Wood has granted the state of New York an extension of time to respond to Zuffa’s Motion for Preliminary Injunction which would allow a UFC event scheduled for April 23, 2016 at Madison Square Garden.  In response, attorneys for Zuffa have expressed concern that the delay may impact the event.

In a letter submitted on November 6th, John Schwartz, Special Litigation Counsel for New York, indicated that due to health issues experienced by his wife, he could not respond to the motion which opposition was due on Friday, November 13th.  It was noted that the second extension was not anticipated.  Schwartz also indicated that he did not believe Zuffa would be prejudiced by this delay.  New York will now have until December 4, 2016 to respond to Zuffa’s motion and Zuffa will have until December 14, 2016 to file a reply.

Letter From Plaintiffs Re 2nd Extension of Time by JASONCRUZ206

Judge Wood granted the request filed by counsel for New York last week.

In a letter dated November 7th, Jamie Levitt, attorney for Zuffa “reminded” the court that this was the second extension request to respond to Zuffa’s lawsuit filed on September 28th  The first was stipulated by the parties on October 9th.  The second, granted by Judge Wood, is due to an illness of the wife of the attorney heading the litigation for this case.  Levitt expressed the concern that the delay in the decision of the Preliminary Injunction may impact the April 23, 2016 event scheduled for UFC.

Letter From Plaintiffs Re 2nd Extension of Time

“The briefing schedule [for the Preliminary Injunction] was carefully negotiated by the parties to ensure that despite Defendants’ [first] extension, the Court would have sufficient time to consider and rule on Plaintiff’s motion by January 2016,” wrote Levitt.  “A ruling after January 2016 would not provide the UFC and MSG sufficient time to finalize and then market the scheduled April event.”

Levitt explains that the MSG licensing agreement and the sanctioning of the event cannot be easily rescheduled.  There was no indication of when another date might be secured for MSG.

Payout Perspective:

This is a delicate situation since it involves a personal health issue.  Zuffa had no grounds to oppose this request without looking totally heartless.  It would be clear that the court would have granted this request.  The unexpected delay may definitely impact an event in April if the court does not decide by the beginning of the year.  With the holidays upcoming, it is hard to say when a ruling might occur.  The Levitt letter puts the court on notice of the injury it may suffer if a decision is not made soon.  While New York argues that moving the date to another time would resolve the issue, it’s clear the UFC has banked on this date.  MMA Payout will keep you posted.

New York files appeal brief addressing Zuffa claims

November 4, 2015

On Wednesday, the State of New York filed its brief in opposition to the appeal filed by the UFC in the Second Circuit Court of Appeals.  New York addresses Zuffa’s contentions related to its appeal related to the Southern District Court of New York’s dismissal of Zuffa’s lawsuit last March.

The two primary claims related to the First Amendment and Vagueness challenge to the state law law prohibiting MMA in the state.  The state liquor law also is challenged in the appeal.

First Amendment

Violence was the key to the state’s argument that the First Amendment did not apply to the law banning MMA in New York.  “The First Amendment does not protect violence,” it argued in its brief citing the fact that the state has the power to regulate violent or dangerous conduct that can inflict actual physical harm.

Distinguishing fighting from speech, it notes that the combat prohibition restricts physical violence and not what they may or may not say.  It argues that the legislative intent of the law was to regulate particular forms of violent conduct rather than speech.

Moreover, it argues that in states that allow MMA, or other dangerous contact sports, they require strict rules to abide by and fighters must obtain a license.  These requirements, according to the argument, would be contrary to First Amendment protection.

Throughout the brief, New York takes jabs at Zuffa’s appeal brief.  For instance, it states that it misreads the statute in its belief that the regulation prohibiting MMA is limited to just a “live performance” (i.e., fighting in front of an audience).  It argues that the interpretation is wrong.  In fact, New York argues that the ban prohibits “physical violence regardless of whether anyone watches the fights.”

It notes that the ban extends beyond conduct of an MMA event in front of an audience:

…the professional combat prohibition is violated any time contestants compete for a monetary prize by engaging in unlawful physical combat—whether the fight takes place in a living room, on the street, or at Madison Square Garden— since the harms caused by such physical violence are present regardless of the size or even existence of an audience. Thus, an ultimate fighting match at a gym with a $100 prize violates the ban even if nobody comes to see such a low-stakes contest. A private fight club in which combatants engage in no-holds-barred fighting with the winner receiving $10,000 would also violate the professional combat prohibition, even if there is no public audience (p. 38 of New York appeal brief)

In the alternative, New York stated that if the First Amendment applied, regulation would be permissible because it would support a governmental interest in preventing serious injuries and death.  Here, New York points to the Legislative History in the 1990s when MMA was in its infancy stages and how less rules than before.  In this instance, the argument goes that New York may inhibit a First Amendment right if it is incidental to the governmental interest of safety.  So, even if it was determined that MMA deserved First Amendment protection, the law banning it would stand because New York has a right to protect people from fighting.


The second major argument in the brief addresses whether the law is vague.  First, New York reaffirms the district court ruling that Zuffa lacked standing since there was no claim or injury until after the lawsuit commenced.  Next, it argued that the correct court to address this issue would be New York state court since it dealt with a New York law.  This was the same guidance stated by Judge Kimba Wood in its order dismissing Zuffa’s lawsuit last March.

New York states that if the court believes Zuffa has standing and a state court is not the appropriate forum for the case, then it should remand (send back) to the district court to decide whether the “martial-arts sponsorship exemption is vague as applied to ultimate fighting.  This was the same thing Zuffa recommended in its brief.  It also suggested that the appeals court could decide that the exemption was not unconstitionally vague.

Payout Perspective:

New York attempts to distance itself from the First Amendment issue contending that the ban relates to the overarching concern of safety.  It seems that the brief focuses on violence rather than describing MMA as sport. Throughout the brief, it offers subtle descriptions and analogies of violence.  While New York argues that it has a right to regulate violence and dangerous conduct, the correlations it makes in its brief relate to activities that are mostly criminal.  Thus, the argument here seem to fall flat as laws that regulate animal fighting or use of weapons are against the law.  Is MMA on the level of these activities?

As for the Vagueness claim, this issue seems to be one that might be the point of contention.  While New York offers the “lack of standing” argument, it also identifies a potential key mistake by Zuffa.  It notes that the case may be best decided by a state court.  Finally, it focuses on legislative history and intent in arguing that the law was always about banning MMA.

How will this appeal be handled in light of the Preliminary Injunction filed in the other UFC lawsuit against New York?  For those interested in legal theory and constitutional law, this case offers several interesting legal theories to explore.

Zuffa will have a chance to offer a Reply to New York’s brief.

MMA Payout will keep you posted.

New York to file opposition to Zuffa appeal this week

November 3, 2015

This week New York will file its appeal brief opposing the appeal brought by Zuffa arising from the original lawsuit filed against the state in November 2011.  In addition to opposing Zuffa’s claim that the New York State law banning professional mixed martial arts violates the First Amendment, it argues that Zuffa has standing to assert its argument that the statute is vague.

You may recall that Judge Kimba Wood dismissed Zuffa’s claim for vagueness citing that the organization lacked standing to sue the state of New York for failure to show that it would suffer injury since it had never attempted to hold an event in the state.  The law prevents a party to file a lawsuit if it cannot show that it would be injured as a result of the law it might be challenging.  Judge Wood determined that if there was any harm to affect Zuffa, it occurred after the lawsuit was filed.  Thus, Zuffa could not claim to be an aggrieved party with an injury resulting in damages.

In its appeal brief, Zuffa argues that it has standing due to the fact the ban addresses the UFC business.  Paul Clement, Zuffa’s counsel, argues in its brief. “UFC is in the business of promoting and producing professional MMA matches and exhibitions.”  It states that the UFC is a licensed promoter for the World Kickboxing Association (“WKA”).  The WKA is an exempt organization, under the Combat Sports Ban that may promote MMA events within the state.  The brief claims that WKA is “reluctant to take that additional step for fear of the criminal and civil penalties they could face if the event went forward, and the unrecoverable costs they could incur if the event were shut down.  Thus, even though the UFC never made a colorable attempt to hold an event in the state, the company had standing to sue.

Additionally, Clement attacks Judge Wood’s belief that standing arose only after the lawsuit was filed in November 2011 was wrong.  It cites New York’s “mid-litigation waffling” with respect to whether or not an exempt organization could promote an MMA event as evidence that harm existed prior to its filing.  Irrespective of the stance by New York, Zuffa claims that the ban has been ongoing prior to and throughout the litigation.  Thus, Judge Wood’s ruling that there was no standing since any alleged harm occurred after the lawsuit commenced.

Notwithstanding its arguments that the UFC has standing to sue, it argues the merits of its challenge that the law is vague on its face and in its application.  Clement argues that the appeals court should remand to the District Court to reach the merits of the vagueness claim.

Because the District Court did not reach the merits of Plaintiffs’ as-applied vagueness challenges given its erroneous standing holding, at a bare minimum, the Court should remand with instructions to resolve the merits of those challenges.  And in doing so, the Court should also reinstate Plaintiffs’ facial vagueness claim, which the District Court dismissed only by applying a standard that the Supreme Court has since rejected. p. 56 of UFC Appellate Brief

In the alternative, it requests the appeals court to resolve the legal question itself.

Payout Perspective:

The opposition brief from the state of New York will likely support Judge Kimba Wood’s ruling that Zuffa’s lawsuit should be dismissed.  The primary reason for the dismissal is the lack of standing found by Judge Wood.  Perhaps secondary to the vagueness challenge, is the argument that the UFC’s First Amendment rights were harmed.  We see in the UFC’s lawsuit filed in September requesting an injunction that key to its argument is that the law is inherently vague.  Notably, New York shall respond to the UFC’s injunction request in that lawsuit in a couple weeks.  MMA Payout will keep you posted on New York’s appellate brief once it is filed.

Nevada State Athletic Commission and Nick Diaz in settlement talks

October 28, 2015

MMA Fighting reports that representatives for Nick Diaz and the Nevada State Athletic Commission are discussion a potential settlement of his fine and punishment issued last month.

Sources told MMA Fighting that with settlement talks ongoing, Diaz could be back in the Octagon by 2016.  Amy Dardashtian also indicated that the best case scenario is that he is in the Octagon as early as this summer.

Last month, the commission issued a 5 year suspension and fined Diaz $165,000 for failing a drug test for marijuana at UFC 183.  The contentious hearing drew the ire of many fans which felt that Diaz was wrongly prosecuted and unfairly penalized.  Diaz’s lawyers stated that they would file a lawsuit against the NSAC seeking judicial review.  Notably, the NSAC never issued a written finding of Diaz’s suspension and fine per NSAC rules.  Only after the written order is issued and sent to Diaz’s representations could his lawyers file suit.

Interesting enough, Las Vegas law firm Campbell & Williams stepped in on the fighter’s behalf per a twitter post by Diaz.

Campbell & Williams represents the UFC in a variety of matters.  It is the law firm that is representing the UFC in the Wanderlei Silva defamation case.

Payout Perspective:

Clearly, the local influence of Campbell & Williams must have facilitated settlement talks.  Further, the fact that no written order was issued meant that no legal action would be pursued.  I would have to check the NSAC rules to see if there was a time limit for which they needed to issue an order.  Perhaps the NSAC did not figure that the Diaz penalty would have caused such a stir within the MMA community.  But, in the end, we should probably see the sides settle with the proviso that Diaz is able to participate in the Octagon sooner than later.

Parties stipulate for New York to respond to UFC PI by November 15

October 24, 2015

The state of New York is set to respond to Zuffa’s request for a Preliminary Injunction no later than November 15, 2015.  The parties stipulated to an extension for New York to respond to Zuffa’s request to hold an event at New York’s Madison Square Garden this April.

New York was to have filed a response to the UFC’s Motion for Preliminary Injunction on October 15, 2015.  However, the parties have stipulated to grant New York an extra month to file its opposition.  The stipulation is conditioned on the promise that the state of New York would not seek any additional delays with the preliminary injunction.

A reply to New York’s opposition will be set for November 23, 2015 per court papers (see below).  The stipulation between parties also grants New York time to answer and/or respond to the Complaint to 30 days after the Court rules on the UFC’s Motion for Preliminary Injunction.

Stip and Order to Respond to PI by JASONCRUZ206

Payout Perspective:

The delay should not inhibit a Court ruling on the Preliminary Injunction in time for an April 2016 event at MSG provided the court rules in the UFC’s favor.  Of course, that does not factor in an appeal from New York or from the UFC if the motion does not go their way.  MMA Payout will keep you posted.

Martin picked to fill vacancy on NSAC

October 9, 2015

Since the Nick Diaz decision came down last month, the Nevada State Athletic Commission has been under scrutiny.  However, under the radar was the announcement that Nevada Governor Brian Sandoval appointed attorney Michon Martin to the vacancy on the NSAC.

Martin fills the vacancy of Bill Brady who resigned this past May.  Brady’s term ends October 31, 2016.

Martin served as general counsel in the Governor’s Office since 2013 before leaving to work as general counsel for Resorts World Las Vegas this past August.  While with Governor’s Office she advised and managed regulatory, transportation, resources and federal agency issues.

She was also the Chief Deputy Attorney General with the Nevada AG.  Prior to that she worked as an Assistant District Attorney in the San Francisco D.A.’s office.  She went to UC Davis and law school at the University of San Francisco.

Payout Perspective:

As it relates to the world of combat sports, Martin’s history as a district attorney will help when evaluating cases and investigating matters.  One would surmise that she would look at matters from a prosecutor’s point of view.  Moreover, we assume her litigation experience would make her more apt to weigh the evidence in cases like that of Nick Diaz and Anderson Silva when determining suitable punishments.  She will get her first chance at the end of the month when Wanderlei Silva’s case returns on remand from judicial review.  The commission will get the opportunity to administer a more appropriate punishment to Silva.  Of course, with Silva’s appeal to the state Supreme Court, who knows if the punishment will stand.

Potential flaw in new UFC lawsuit in New York

October 4, 2015

A new wrinkle may surface in the quest to legalize professional MMA in New York.  With a new lawsuit filed by the UFC, a preliminary injunction request filed to hold an event this April, a nuanced detail may trip up the legal strategy.

In its new court filings, the UFC indicates that it has licensed with the World Kickboxing Association (“WKA”) to hold the event in April.  The WKA is an exempt organization under the Combat Sports Law (“CSL”) which bans the sport in the state.  As an exempt organization under the law, it may promote events notwithstanding the law.  Basically, it may hold an event in the state despite the ban.

As indicated by Jim Genia, if a law legalizing professional MMA is passed in Albany prior to an anticipated UFC at MSG this April, the UFC may have some issues.  The reason being is that if the law banning professional MMA in the state is repealed, the exempt organization carve out allowing organizations, such as the WKA to sanction events will also fall by the waysideIf this happens, the UFC’s event in April may be in trouble since the UFC has stated that it is working with WKA to sanction the event.

The legislative session begins in January and there is no way to know when, or even if, an MMA bill legalizing the sport and/or repealing the ban will ever matriculate its way through the various committees, state senate and eventually to the state Assembly for a vote.  If it finds its way to the Governor’s desk for signing, the UFC may have a problem.

Payout Perspective:

There are two big “ifs’ here (among other questions).

  1. The UFC must pass a hurdle of getting the court to grant its preliminary injunction request.  Look for stern opposition from the state of New York and an appeal if it loses.  The big news on this, is that if an appeal occurs, there may be a stay in the lawsuit until the appeal is heard.  Thus, it would freeze the new lawsuit until resolution from the Court.  Something like that could take us past the UFC’s intended April event date.
  2. If the UFC wins its preliminary injunction (and for some reason there is no appeal and/or resolves in the UFC’s favor), the MMA law in Albany would have to get through before the UFC’s April 23, 2016 date at MSG.

Let’s face it.  I don’t bank on a law passing prior to April 23rd based on what we’ve seen in recent years from New York lawmakers.  MMA supporters have waited for a law to pass legalizing MMA in the state.  The past several years we’ve waited and waited until the final days of the legislative session in June for a vote in the state assembly (the last hurdle before reaching the governor’s desk).  Yet, none has occurred.  Even if a law is passed this year, I doubt it occurs prior to April’s UFC event.

I would suspect that if the UFC wins its preliminary injunction (and any appeal that might occur), it may ask pro-MMA supporters within the legislature (and its lobbyists) to push an MMA bill, but have it occur after the April event.  In the alternative, they could always request the UFC be grandfathered into the MMA law.  Essentially, allowing the WKA to sanction the event but after the event, the MMA law would come into effect.  This assumes that the legal process is swift, which it is not.

First things first, a court will consider the UFC’s preliminary injunction request and at some point the UFC must win for an April event to happen.

The reason for the new UFC-NY lawsuit

September 30, 2015

The UFC surprised many with another lawsuit in federal court in New York challenging the constitutionality of the state’s ban on professional MMA.  This time, the UFC is seeking a preliminary injunction to hold an event in the state this April.

The news of a new lawsuit comes when the original lawsuit is in the Second Circuit Court of Appeals.  Paul Clement, the renowned appellate lawyer and former U.S. Solicitor General is representing Zuffa and filed their appeal brief this past August. New York’s response is set for the beginning of November.

But perhaps the road map for the lawsuit filed this week was provided by Judge Kimba Wood, the trial court judge that dismissed Zuffa’s case.

In deciding to dismiss Zuffa’s case, it offered the following in its conclusion (click to enlarge):

Kimba Wood opinion

The opinion is mere “dicta” meaning that Judge Wood’s suggestion is not law or precedent which others may cite as guiding authority. Yet, it created the opportunity for the UFC to open up another line of action in attempting hold an event in New York.

Unlike the November 2011 lawsuit, the UFC is the only plaintiff. The UFC focuses on the claim that the New York law, the Combative Sport Law (“CSL”), violates due process rights as it is unconstitutionally vague as to its application.

UFC Complaint p10

The UFC points out that the CSL exempts “martial arts” from its ban stating that “martial arts shall include any professional match or exhibition sanctioned by any” of the organizations listed in the statute.

It notes in the Complaint that “standing,” the right to bring an action in the court, “could not be clearer.” This directly addresses the previous lawsuit in which Judge Wood determined that there was no standing due to the fact that the UFC had not suffered injury and did not contact a promoter to hold an event in New York. In its Complaint, it now states that it is working with WKA.

Screenshot 2015-09-30 17.27.53

Based on setting a UFC event for April 2016, the UFC states that it will lose “millions of dollars in ticket sales.”  It also will lose a source of marketing for its UFC-branded gyms in New York, as well as for the DVDs, consumer products, video games and other products that it sells.

Notably, the UFC indicates that it has “lost sponsorships and has suffered reputational damage around the world because of its inability to hold professional MMA events in New York.”  It will be interesting to see what evidence it may bring to prove these allegations if it comes to that point.

The UFC Complaint cites the differences from the beginnings of the CSL indicating that the legislature was concerned with “no-holds-barred fighting.” In her opinion Judge Wood states “MMA has changed substantially since the Ban was enacted.”  This provides some guidance as to what a court may decide with respect to the CSL.

Payout Perspective:

It’s clear that the roadmap was provided by Judge Wood for this lawsuit with the exception that it has filed the lawsuit in federal court as opposed to state court as suggested in her opinion. The lawsuit is premised upon the determination by the prior court as this filing is tighter and a shorter (only 37 pages as opposed to 100 plus pages) complaint. It appears that there is a better chance for the UFC in this lawsuit although you should expect stiff opposition from New York. The state will likely argue what it did in the prior lawsuit which is that laws need not change over time.  And despite the change within the sport of MMA, it will focus on the intent of the law with its primary purpose to ban MMA.

UFC files preliminary injunction in New York case

September 30, 2015

The UFC filed its motion for preliminary injunction on Tuesday.  It argues that the UFC is likely to prevail on its claim and should be granted the injunction to hold its event at Madison Square Garden this April.  Notably, it has already spent a non-refundable $25,000 for the anticipated event in April.

No hearing date has been set and we’ll likely see opposition from New York.

Similar to its complaint filed on Monday, it stresses the contention that the statute banning professional MMA in the state is inherently vague.

“Much of the law’s problems stem from its failure to explain with any reasonable degree of clarity what exactly a “combative sport” is,” reads the moving papers submitted by the UFC.  “Rather than define the term expressly, the statue attempts to reverse engineer a definition by exempting from its prohibitions certain sports, including “martial arts.””

Again the UFC stresses its belief that any issues on standing are now answered: “Whatever uncertainty may have existed on the matter in the past, it is now crystal clear that the estate interprets the law to prohibit Plaintiff from doing so.”

The UFC utilizes deposition from the Jones v. Schneiderman lawsuit to provide evidence that even NY officials provided contrary testimony to how they interpreted the statute.

In addition, the UFC notes that it has contracted with the World Kickboxing Organization, an “exempt organization” allowed to hold events in the states.  The motion states, “To eliminate any potential concerns about the imminence of its injury, Plaintiff has contracted to host a live professional MMA event sanctioned by an Exempt Organization.”

It also indicates that it has committed $25,000 as a non-refundable deposit and stands to lose millions of dollars in ticket sales and media revenue.

As we’ve learned from previous injunction requests in MMA, there are hurdles the injunction-seeker must prove that “the probability of his prevailing is better than fifty percent.”

  1. “a likelihood of success on the merits [of the lawsuit],”’
  2. That it will suffer “irreparable harm” with a preliminary injunction, and
  3. “that a preliminary injunction is in the public interest.”

We should also note that the UFC also challenges NY Liquor Law as it did in the November 2011 lawsuit as that law mirrors the Combative Sports Law (or “CSL” as it is referred to in the pleadings).

Payout Perspective:

This will be an interesting, and an important injunction for the UFC in its fight to hold an event in New York.  I believe that the first element, “likelihood of success on the merits,” is the biggest hurdle for the UFC.  Obviously, the monetary investment in holding an event reflects the “irreparable harm.”  You can argue the “public interest” element.  Despite the ban, and the inability to get a law passed in Albany to legalize MMA, there is still a lot of support for the sport in the state.  The “likelihood of success” could be a toss-up and based on the court’s interpretation of the CSL ban.

NV state senator speaks out against Diaz suspension

September 21, 2015

TMZ Sports reports that Nevada state senator Tick Segerblom is speaking out against the NSAC suspension of Nick Diaz.  He calls the 5 year ban “totally inappropriate.”

Senator Segerblom‘s (D) district includes a portion of Las Vegas and is within Clark County, Nevada.  Per the Nevada state senate web site, he is on the Senate Health and Human Services committee, Senate Judiciary committee and Natural Resources committee.

“[marijuana] is a recognized medicine in the Nevada constitution so how can you punish someone for taking medicine, particularly since it doesn’t enhance your ability to fight?” The state senator also noted, “[T]hey [NSAC] need to rethink this punishment and then ultimately change their rules.”

In addition to Senator Segerblom, Diaz has received support from Ronda Rousey, Henry Cejudo and Leslie Smith.  The latter two (Cejudo and Smith) have vowed not to fight in Nevada until something is done with the commission ruling.  Also, a White House petition started on Diaz’s behalf has grown to over 50,000 signatures.

Payout Perspective:

Senator Segerblom appears to be a progressive politician as he has co-sponsored a bill in favor of recognizing gay marriage and a bill that would allow a person addicted to a prescription drug to sue either the manufacturer of the drug or a medical provider.  He also has entertained the thought of running for Governor of the state of Nevada.  Notably, the Governor appoints the members of the NSAC.  Will the swell of support help with overturning Diaz’s suspension.  Probably not.  Although a lawsuit could change it.  But, it could facilitate change for the future.  Having a state senator involved might be the first step in creating a change to the current laws and/or current commissioners.

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