New York to file opposition to Zuffa appeal this week

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.