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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK JON JONES, GINA CARANO, FRANKIE EDGAR, MATT HAMILL, BRIAN STANN, ZUFFA, LLC d/b/a ULTIMATE FIGHTING CHAMPIONSHIP, DANIELLE HOBEIKA, BETH HURRLE, DONNA HURRLE, STEVE KARDIAN, JOSEPH LOZITO, ERIK OWINGS, CHRIS REITZ AND JENNIFER SANTIAGO, Plaintiffs, - against ERIC T. SCHNEIDERMAN, in his official capacity as Attorney General of the State of New York, and CYRUS R. VANCE, Jr., in his official capacity as District Attorney for the County of New York Defendants.

MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS 11 Civ. 8215 (KMW)(GWG)

CYRUS R. VANCE, JR. District Attorney New York County One Hogan Place New York, New York 10013 (212) 335-9000 By: PATRICIA J. BAILEY DAVID E. A. CROWLEY Assistant District Attorneys of Counsel

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TABLE OF AUTHORITIES FEDERAL CASES Adams v. New York State Dep’t of Educ., 752 F. Supp. 2d 420 (S.D.N.Y. 2010)................................ 16 Beatie v. City of New York, 123 F.3d 707 (2d Cir. 1997) .......................................................................... 24 Businesses for a Better N.Y. v. Angello, 341 F. App’x 701 (2d Cir. 2009) ....................................... 15-16 Chambers v. Time Warner, Inc., 282 F.3d 147 (2d Cir. 2002) .................................................................... 2 City of Dallas v. Stanglin, 490 U.S. 19 [1989] ..........................................................................................9, 13 City of New Orleans v. Dukes, 427 U.S. 297 (1976) ..................................................................... 10, 19, 23 Cooper v. Parsky, 140 F.3d 433 (2d Cir. 1998) ............................................................................................. 2 Dandridge v Wialliams, 397 U.S. 471, 485 (1970)..................................................................................11,18 FCC v. Beach Commc’ns, 508 U.S. 307 (1993).......................................................................... 9-11, 17, 21 Ferguson v. Skrupa, 372 U.S. 726 (1963) ..................................................................................................... 10 Hayden v. Paterson, 594 F.3d 150 (2d Cir. 2010) ....................................................................................... 18 Heller v. Doe by Doe, 509 U.S. 312 (1993) .................................................................................... 11, 18, 22 Mangiafico v. Blumenthal, 471 F.3d 391 (2d Cir. 2006) .............................................................................. 2 Metropolis Theatre Co. v. City of Chicago, 228 U.S. 61 (1913) ............................................................... 11 Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456 (1981) ........................................... 9, 12-13, 17-18 Montalvo-Huertas v. Rivera-Cruz, 885 F.2d 971 (1st Cir. 1989) .............................................................. 14 Munn v. Illinois, 94 U.S. 113 (1876) ............................................................................................................. 10 Plyler v. Doe, 457 U.S. 202 (1982) ......................................................................................................... 11, 18 SEG Sports Corp. v. State Athletic Commission, 952 F.Supp. 202 (S.D.N.Y. 1997) ............................. 7 SEG v Patterson, 1998 WL 230993 (S.D.N.Y. 1998) .................................................................................. 8 Smart v. Ashcroft, 401 F.3d 119 (2d Cir.2005) ........................................................................................... 15 Smith Setzer & Sons, Inc. v. S.C. Procurement Review Panel, 20 F.3d 1311 (4th Cir. 1994) .............. 14 Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) .................................................................................. 2

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U.S. R.R. Retirement Bd. v. Fritz, 449 U.S. 166 (1980) ............................................................................. 11 United States v. Acoff, 634 F.3d 200 (2d Cir. 2011)............................................................................. 14-15 Vance v. Bradley, 440 U.S. 93 (1979) ................................................................................................ 10-11, 21 W. & S. Life Ins. Co. v. State Bd. of Equalization of Cal., 451 U.S. 648 (1981) .................. 12-14, 16-18 Williamson v. Lee Optical of Ok., 348 U.S. 483 (1955) ................................................................. 10-11, 21

STATE CASES American Boxing & Athletic Assn. v Chemung County YMCA, 13 A.D.3d 842 (3d Dept. 2004)............................................................................................................................................................ 21 Deangelis v Izzo,192, A.D.2d 823 (3d Dept. 1993) .................................................................................... 20 Morgan v State of New York, 90 N.Y.2d 471,484 (1997) ......................................................................... 20 Turcotte v Fell, 68 NY2d 432 (1986) ............................................................................................................ 20

FEDERAL: STATUTES, RULES, REGULATIONS, CONSTITUTIONAL PROVISIONS 42 U.S.C. § 1983 ................................................................................................................................................. 8 Fed. R. Civ. Proc. Rule 12(b)(6) ................................................................................................................... 1, 2

STATE: STATUTES, RULES, REGULATIONS, CONSTITUTIONAL PROVISIONS N.Y. Uncons. Laws § 8931 ............................................................................................................................. 21 N.Y. Uncons. Laws §§ 8901-9034 .................................................................................................. 4, 7, 19, 21 N.Y. Unconsolidated Laws (“N.Y. Unconsol. Law”) § 8905-a .................... 2, 3, 7, 16, 18, 21-22, 24-25

OTHER AUTHORITIES Ngai, K., Levy, F. &. Hsu, E., Injury trends in sanctioned mixed martial arts competition: a 5-year review from 2002 to 2007 ............................................................................................................................. 23

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TABLE OF CONTENTS Page PRELIMINARY STATEMENT ....................................... 2 BACKGROUND .................................................. 3 ARGUMENT..................................................... 9 A. B. C. A Statute’s Rational Basis Must be Determined as of the Time of its Enactment .. 9 The Legislature had a rational basis for enacting N.Y. Unconsolidated Law § 8905-a. ......................................................... 16 Legislature has a rational basis for not repealing N.Y. Unconsol. Law § 8905-a. . 22

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

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK JON JONES, GINA CARANO, FRANKIE EDGAR, MATT HAMILL, BRIAN STANN, ZUFFA, LLC d/b/a ULTIMATE FIGHTING CHAMPIONSHIP, DANIELLE HOBEIKA, BETH HURRLE, DONNA HURRLE, STEVE KARDIAN, JOSEPH LOZITO, ERIK OWINGS, CHRIS REITZ AND JENNIFER SANTIAGO, Plaintiffs, -againstERIC T. SCHNEIDERMAN, in his official capacity as Attorney General of the State of New York, and CYRUS R. VANCE, Jr., in his official capacity as District Attorney for the County of New York, Defendants.

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

MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS New York County District Attorney Cyrus R. Vance, Jr. (“DA Vance”), in his official capacity as the District Attorney of New York, submits this Memorandum of Law in support this preliminary motion, as directed by the Court, pursuant to Fed. R. Civ. Proc. Rule 12(b)(6), to dismiss Plaintiffs’ Due Process and Equal Protection claims. At the conference on January 4, 2012, the Court (Wood, J) directed that, preliminarily, defendants limit their FRCP 12(b)(6) motion to dismiss to one narrowly tailored issue, with the opportunity to subsequently file a more comprehensive motion to dismiss. Specifically, the Court directed the parties to address: whether due process and equal protection analysis requires the Court to only determine if there was a rational basis for the law in light of the circumstances existing at the time it was passed, or also to determine if there is presently a rational basis for the law, taking into account the changes in circumstances occurring since the time of passage. In compliance with the Court's direction, DA Vance now moves only to dismiss the Fourth (Equal Protection) and Fifth (Due Process) causes of action in the Complaint, without prejudice to his right to move at a later time for similar relief with respect to the each and every cause of action.

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PRELIMINARY STATEMENT In 1997 the New York State Legislature enacted N.Y. Unconsolidated Laws (“N.Y. Unconsol. Law”) § 8905-a, which prohibits certain professional "Combative Sport[s]." The statue prohibits, in New York, those “professional matches” where “contestants deliver, or are not forbidden by the applicable rules thereof from delivering kicks, punches or blows of any kind to the body of an opponent.” N.Y. Unconsol. Law § 8905-a. The statute exempts from the ban wrestling, boxing and sparring and the statutorily enumerated “martial arts.” The legislation empowers the New York State Athletic Commission to adopt a process for adding and removing martial arts organizations to and from those named as exempted, and sets forth some criteria by which the Commission should make such determinations. N.Y. Unconsol. Law § 8905-a does not interfere with fundamental rights, and does not make any suspect classifications. Thus, it carries with it a strong presumption of constitutionality and must be upheld if rationally related to legitimate governmental interests. More particularly, and as shown hereafter, statutes pass muster under Equal Protection and Due Process clauses if there was a rational basis for the statute when it was enacted. Even assuming the truth 1 of the Complaint’s factual allegations, the New York Legislature had a rational basis for enacting In passing on a motion to dismiss under Rule 12(b)(6), the inquiry is generally limited to testing the allegations of the complaint. See e.g., Sutton v. United Air Lines, Inc., 527 U.S. 471, 475 (1999). That is, the court must generally assume the truth of plaintiff’s factual allegations, but the court is not required to accept as true allegations that are “legal conclusions couched as factual assertions.” See Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir. 1998) (“bald assertions and conclusions of law are insufficient” to survive a motion to dismiss). The court may also consider those documents either incorporated by reference or relied upon by plaintiff, Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006), as well as “matters of which judicial notice may be taken” in determining whether plaintiff has a valid cause of action. Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (internal quotes and citation omitted). In this pre-answer motion, pursuant to Fed. R. Civ. P. 12(b)(6), while DA Vance is obliged to assume the truth of Plaintiffs’ factual assertions, he by no means concedes the veracity of those allegations and any failure to identify contested statements in this memorandum is based solely on the procedural requirements attendant (Continued…) 2
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the challenged legislation and the classifications created in it. Accordingly, no equal protection or due process claims can be had, and Plaintiffs’ Fourth and Fifth Causes of Action should be dismissed. BACKGROUND Plaintiffs allege in its “infancy” mixed martial arts (“MMA”) “had few rules, and was prohibited in many other states” (Complaint [“C”] ¶5). The sport was “[o]riginally sensationalized in the early 1990s as a ‘no holds barred fighting spectacle,’” but today “MMA operates under a unified set of rules and is permitted in virtually all of the United States” and is a “highly regulated and controlled professional sport” (C ¶2). Plaintiffs complain that the professional exhibitions of today’s MMA are prohibited under N.Y. Unconsol. Law § 8905-a, and a such, have dubbed the law “Live Professional MMA Ban” or “The BAN”(C ¶3). They allege the New York Legislature did not have a rational basis for enacting the statute, and further, given the evolutionary process MMA has undertaken since that time, there is no rational basis for the statute’s continued prohibition against this sport (C ¶¶ 282-302). MMA’s “origins” stem from “the Brazilian full contact martial art known as Vale Tudo,” created “80 years ago” (C ¶19). Once Vale Tudo was brought to the United States, it developed into “the concept of a single-elimination tournament called ‘War of the Worlds’ (“WOW”)” (C ¶19). WOW tournaments consisted of “fighters from different disciplines [who] would compete in an open weight, nearly-no-rules tournament...”(C ¶19). In 1992, WOW Promotions and Semaphore Entertainment Group (“SEG”), “which launched the name ‘Ultimate Fighting Championship,’” 2 partnered to televise a WOW tournament (C ¶20). The tournament was “aggressively hyped to stress the most violent possibilities and to suggest that the participants faced significant danger” Id. __________________ (…Continued) with the present motion.
2

Ultimate Fighting Championship® (“UFC”) is the “largest professional MMA promoter” (C ¶1).

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“[T]he UFC of that time fully capitalized on the ‘no rules’ concept of the tournament, even though, in fact, there were some rules.” Id. During the ensuing years, fighters began to “hone their skills to adapt to the multidisciplinary nature of the sport,” (C ¶22). It was “[t]his blend of fighting styles and skills [which] paved the way for present-day MMA.” Id. The fights “were advertised as ‘no holds barred’ and as a “blood sport or fights to the death” (C ¶23). Promoters claimed “[e]ach match will run until there is a designated winner - by means of knock-out, surrender, doctor’s intervention, or death. The tournaments were marketed with the motto ‘There Are No Rules!’” (C ¶23). Against this backdrop, on April 18, 1996, the New York State Legislature held hearings on whether to ban this new form of combative contest. 3 At that time, the New York State Athletic Commission had been empowered with regulatory jurisdiction over the boxing, sparring and wrestling, but no other combative sports. See generally N.Y. Uncons. Laws §§ 8901-9034. Among those at the hearing was Anthony Guccione, Chairman of the Board for Battlecade LLP, a producer of “a style of combat sport called Extreme Fighting,” (“EF”) who testified to the rules and safety measures in place during EF contests (see Schwartz Decl. Exh. A at 44-46). Donald Zuckerman, the executive producer of the show EF also appeared (id. 43, 46-54). Zuckerman read into the record a statement by Doctor Joseph Estwanik, who was Zuckerman’s sports medicine physician and the Chairman of Sports Medicine for the United States Amateur Boxing Association id. at 48. Dr. Estwanik had “served as [a] ringside physician for three major Pay-Per-View Reality competitions” and believed he could “establish some injury/safety trends” based on those three

3

See generally Should New York State Ban Extreme Fighting?: Hearing Before the S. Comm. on Investigations, Taxation, & Gov’t Operations, April 18, 1996 (N.Y. 1996) (“1996 Hearing”), Declaration, dated January 27, 2012, of Assistant Attorney General John M. Schwartz ("Schwartz Decl.") Exh. A.

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competitions id. at 49. In two of the fights, Dr. Estwanik observed “one minor sutured laceration, one temporary loss of consciousness, contusions of hands and face, cauliflower ear and one case of exhaustion dehydration” (id. at 50). During the third competition, he observed a “rather large number of lacerations about the face, and one contestant withdrew because of symptoms of minor concussion, but no episodes of unconsciousness” id. at 50. In Dr. Estwanik’s, opinion “none of

the participants” “sustained injuries of a severe nature” and had not been “exposed to any athletic trauma of a career-ending category” (id.). Dr. Estwanik further wrote, that based upon the “currently available data,” he believed “investigative efforts [would] be more productively expanded towards the disallowance of NASCAR and NFL violence” (id. at 51). John Perrette, an EF “matchmaker,” emphatically testified that EF was not UF, and that he did not want to be associated with the UF, as its fighters were permitted to fight several times in one night. Other than that he could not say much about the UF organization (id. at 57, 60 and 75). Two doctors testified: (1) Doctor George Lundberg, a Board Certified Pathologist with special training in injury pathology, neuropathology and forensic pathology, and the editor of the Journal of the American Medical Association (“AMA”) (id. at 11); and (2) Dr. Steven Dane, a Mount Sinai Medical Center neurologist and a Qualified Ringside Physician for the State Athletic Commission, who performed neurological examinations, electrocenphalograms and imaging studies on licensed professional boxers referred by the Athletic Commission. Dr. Dane’s studies were designed to assess the neurological damage caused by repetitive traumatic brain injury sustained both in sparring and professional fighting (id. at 11, 18). Dr. Lundberg testified that “the AMA and its journal have been opposed to boxing in all forms for the last thirteen years and have lobbied aggressively to have all types of boxing abolished in this country” (id. at 13-14). Dr. Lundberg then expressed specific concerns about UF/EF. He testified that participants “can be very unevenly matched,” can fight in any weight class and across

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genders (id. at 14). The fighters did not wear protective head gear, mouth pieces or gloves. The rules permitted opponents to administer “blows to any part of the body,” bouts were not divided into rounds, and there were no rest periods (id. at 15). The sport permitted kicking, head butting, elbowing, scratching, and pounding of an opponent’s head into the floor while holding him down, as well as “chops to the opponent’s larynx.” (id. at 16). Such “no-holds-barred fighting,” led to the potential for “brain concussions and hemorrhages, skin and scalp cuts and lacerations, broken and bloody noses, eye damage and blindness, fractures of various bones, including the cervical spine, spinal cord and brain stem damage” and other injuries (id.). Dr. Dane testified he reviewed the 10 rules of EF, which had been provided by Zuckerman (id. at 19). Dr. Dane believed the EF rules were counter to the “accepted rules for professional boxing competitions,” and “with a reasonable degree of medical certainty, would cause severe and permanent damage to the participants of these contests” (id.). The doctor objected to requirements that fighters’ “hands be bare with no tape” and that fighters could “strike with any part of their body” - a rule not found in other organized sports and one the doctor believed invites “the danger of head butting.” He was also concerned over the rule permitting “choke holds” and “submission holds.” He objected to the EF rule stating “if a man is virtually down and out, the ref will not allow any attack by the victor” since there was no criteria for assessing “the level of consciousness and coordination of the participants.” Additionally, Dr. Dane found that these contests “encourage[d] serious and disabling head, eye and masculoskeletal injuries” because contestants were not matched by skill, size or even gender (id. at 23-34). In his opinion, the sport “endangere[d] the health and safety of its participants in a variety of…ways, some of which will not be appreciated…until it is unfortunately too late.” The “sport carrie[d] with it great dangers of injury and possible death” (id. at 24, 30). In the end, in October, 1996, the legislature enacted an amendment to the then existing

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statute which regulated boxing, sparring and wrestling. See New York L. 1920, Ch. 12, now N.Y. Uncons. Laws §§ 8901-9034. The 1996 legislation expanded the statute by adding “combative sports” under the aegis of the State Athletic Commission (“Commission”), and empowering it to develop a set of rules to regulate the sport. See McKinney's 1996 Sess. Law News of N.Y., ch. 708, s. 7708 (“1996 Statute”) (Schwartz Decl. Exh. B). The amended statute was to go into effect on February 6, 1997, and was the predecessor to the statute now challenged by Plaintiffs. On January 30, 1997, the Commission issued rules regulating “combative sports.” 19 NYCRR ch. VII, Rules of the New York State Athletic Commission (1997) (“Commission Rules”). Days later, Semaphore Entertainment Group (“SEG”) - a promoter of combative sports events and the predecessor of Plaintiff, Zuffa, LLP, as the owner of the UF trademark (C ¶43) - filed a federal action seeking to enjoin the Commission from enforcing the regulations. See SEG Sports Corp. v. State Athletic Commission, 952 F.Supp. 202 (S.D.N.Y. 1997) (Cedarbaum, J.) The

regulations included, but were not limited to: the fighters’ cage had to be at least 40 feet in diameter; the fighters were required to wear specific gloves; and the bouts were restricted to three or four fiveminute rounds. Further, the regulations prohibited kicks above the shoulders, head butting, choke holds, and the striking or kicking of a grounded opponent. Id. at 203-204. The District Court denied SEG’s application, ruling it had failed to demonstrate an injury sufficient to meet the “irreparable harm” requirement. Id at 205. As SEG sought to enjoin the Commission from enforcing its regulations, the legislature deliberated a complete ban of UF/EF. (See generally Schwartz Decl. at Exh. D [1997 Legislative Bill Jacket]). On February 25, 1997, the New York Legislature passed, and Governor Pataki signed into law L. 1997, ch. 14, now § 8905-a of N.Y. Unconsol. Laws. The statute prohibits the exhibition or

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matches of professional combat sports not otherwise exempted or regulated by law. 4 At the time of the 1997 legislation, "MMA was in its infancy, had few rules, and was prohibited in many other states" (C ¶5). Nevertheless, it is alleged that the legislature was irrational when it enacted because "if safety were an issue," it would have been better to regulate the sport instead of enacting a total ban (C ¶102). Plaintiffs claim that currently there is no rational basis for the continued prohibition of the evolved form of ultimate fighting because “[p]resent-day MMA is a far cry from the first tournaments that were billed as ‘no holds barred.’ Today, MMA is a safe “hugely popular sport due to the introduction of significant changes by promoters” (C ¶41). Plaintiffs claim “the evolution of the sport was fully set in motion” in 2001, when the UFC trademark was purchased by Plaintiff, Zuffa, LLC (“Zuffa”) (C ¶43). It was then that the UFC “aggressively restructure[ed] its MMA contests into even more highly organized, well-controlled, and safely regulated sporting events” (C ¶43). It was the UFC’s restructuring and the introduction of the Uniform MMA Rules, 5 that “made the performance of professional MMA the safest combat sporting events in the world” (C ¶¶79- 80). Plaintiffs now claim, that “studies” show the‘“[i]njury rates in regulated professional MMA competition are similar to other combat sports; overall risk of critical sports-related injury seems to be low’” (C ¶91; see also ¶¶5, 78, 90, 283-285). It is alleged present MMA is as safe as or safer than other combative or professional sports After the District Court’s dismissal of its application to enjoin the Commission’s enforcement of its regulations, SEG amended its complaint and, under 42 U.S.C. § 1983, claimed the Commission’s regulations violated the contract clause of the United States Constitution, procedural due process, and the First Amendment. SEG v Patterson, 1998 WL 230993 (S.D.N.Y. 1998)(J. Cedarbaum) In dismissing the claims, the court not only held that the regulations had “a legitimate state goal: ‘to ensure the health and safety of participants in combative sports events,’” Id. at *3, but also, that the Commission’s rulemaking had not violated any “clearly established” right, Id. at *4, and given the recent enactment of the 1997 legislation, there was no longer a “substantial controversy ... of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Id.
5 4

The Uniform MMA Rules allegedly require “pre- and post-fight physicals,” the “presence of ringside doctors,” training, and the availability of medical insurance (C ¶¶79- 80).

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and thus the statute violates the Equal Protection and Due Process Clauses. ARGUMENT A. A Statute’s Rational Basis Must be Determined as of the Time of its Enactment

As for the particular issued posed by this Court, when considering plaintiffs’ due process and equal protection claims, the court should look solely to the time the legislation was enacted in assessing the rationality of that statute. The rule that the time of enactment is the pertinent timeframe under the rational basis test follows from general principles of judicial restraint and separation-of-powers articulated by the Supreme Court in its equal protection jurisprudence. Moreover, adhering to those principles, courts in this Circuit and others have made clear that the rational basis test focuses on the rationality of the statute at the time of enactment. In its Equal Protection jurisprudence, 6 the Supreme Court has repeatedly highlighted principles supporting the conclusion that developments following enactment of a statute are not relevant to a rational basis analysis. Foremost among those principles are the doctrines of separation of powers and federalism, which have caused the Supreme Court to craft a “standard of review [that] is a paradigm of judicial restraint.” FCC v. Beach Commc’ns, 508 U.S. 307, 314 (1993). The Supreme Court has stressed repeatedly that “equal protection is not a license for courts to judge the wisdom, fairness, or logic of legislative choices” (id. at 313), and “the Fourteenth Amendment gives the federal courts no power to impose upon the States their views of what constitutes wise economic or social policy” (City of Dallas v. Stanglin, 490 U.S. 19, 27 [1989] [internal quotation marks omitted]). See also Clover Leaf Creamery Co., 449 U.S. at 469 (“‘[I]t is up to legislatures, not

If a challenged statute survives rational basis review under the Equal Protection Clause, then “it follows a fortiori that the Act does not violate the Fourteenth Amendment’s Due Process Clause.” Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 470 n.12 (1981).

6

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courts, to decide on the wisdom and utility of legislation.’” [quoting Ferguson v. Skrupa, 372 U.S. 726, 729 (1963)]); City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976) (“[T]he judiciary may not sit as a super legislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines.”). This deferential posture is appropriate because the democratically elected branches of government are viewed as the ones best suited to remedy ill-conceived statutes. As the Court explained over 60 years ago, The day is gone when this Court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought. We emphasize again what Chief Justice Waite said in Munn v. State of Illinois, ‘For protection against abuses by legislatures the people must resort to the polls, not to the courts. Williamson, 348 U.S. at 488 (citations omitted) (quoting Munn v. Illinois, 94 U.S. 113, 134 [1876]). The “‘Constitution presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely [courts] may think a political branch has acted.’” Beach Commc’ns, 508 U.S. at 314 (quoting Vance v. Bradley, 440 U.S. 93, 97 [1979]). The Plaintiffs’ desired rule, which would have federal courts reexamining the validity of statutes every time a challenger asserted that a once-rational classification had outlived or failed to achieve its purpose, is at odds with the principle of judicial restraint articulated by the Supreme Court. Courts must presume that, over time, the democratically accountable branches will ensure that necessary legislative corrections are made. Thus, as a proper exercise of judicial restraint, federal courts must uphold a statute that was rational when enacted, even when post-enactment developments cast doubt on the wisdom, logic, or providence of prior legislative decisions, Another principle that permeates the Supreme Court’s Equal Protection jurisprudence is that

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legislatures must be accorded “substantial latitude” in making classifications for regulatory purposes. Specifically, the Supreme Court has stated, “[a] legislature must have substantial latitude to establish classifications that roughly approximate the nature of the problem perceived, that accommodate competing concerns both public and private, and that account for limitations on the practical ability of the State to remedy every ill.” Plyler v. Doe, 457 U.S. 202, 216 (1982) (emphasis added). Thus, the Clause is not offended because a State’s means of pursuing a legitimate goal consists of “rough accommodations” that are “‘illogical’” or “‘unscientific,’” Dandridge v Williams, 397 U.S. 471, 485 (1970)(quoting Metropolis Theatre Co. v. City of Chicago, 228 U.S. 61, 69-70 [1913]), or lack “mathematical nicety.” Heller v. Doe by Doe, 509 U.S. 312, 321 (1993); See generally Williamson v. Lee Optical of Ok., 348 U.S. 483, 489 (1955)(“[t]he prohibition of the Equal Protection Clause goes no further than the invidious discrimination.”). In fact, the Court has resolved that, “[a] classification does not fail rational-basis review” even “because in practice it results in some inequality.” Heller, 509 U.S. at 321 (internal quotation marks omitted). The Court has recognized that, “[d]efining the class of persons subject to a regulatory requirement. . . ‘inevitably requires that some persons who have an almost equally strong claim to favored treatment be placed on different sides of the line, and the fact [that] the line might have been drawn differently at some points is a matter for legislative, rather than judicial, consideration.” Beach Commc’ns, 508 U.S. at 315-16 (quoting U.S. R.R. Retirement Bd. v. Fritz, 449 U.S. 166, 179 [1980]; alteration in original). A legislature, therefore, may legitimately create classification that are “to some extent both underinclusive and overinclusive.” Vance v. Bradley, 440 U.S. 93, 108 (1979). See Heller, 509 U.S. at 324 (“[a] statutory classification fails rational-basis review only when it rests on grounds wholly irrelevant to the achievement of the State’s objective” [internal quotations omitted]). Accordingly, the Supreme Court has made clear that imperfection and even inequality must

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be tolerated under the rational basis test to give legislatures the “substantial latitude” they need to implement policy choices. It follows that statutory classifications, which were rationally based when enacted, do not become unconstitutional because they become imperfect or result in inequality over time. Critically, as well, the Supreme Court has emphasized that the Equal Protection Clause does not require legislatures to be successful in their outcomes, but only rational in their attempts. Indeed, under the rational basis test, “whether in fact the provision will accomplish its objectives is not the question: the Equal Protection Clause is satisfied if [courts] conclude that the [legislature] rationally could have believed that the [provision] would promote its objective.” W. & S. Life Ins. Co. v. State Bd. of Equalization of Cal., 451 U.S. 648, 671-72 (1981). It inexorably follows that a statute with a rational basis when enacted is not rendered unconstitutional because the classifications at some future time fail to further the statute’s objectives. The Court’s decision in Minnesota v. Clover Leaf Creamery Co. illustrates several of these points. There, the Court upheld a Minnesota statute that “bann[ed] the retail sale of milk in plastic nonreturnable, nonrefillable containers, but permit[ed] such sale in other nonteturnable, nonrefillable containers, such as paperboard milk cartons.” 449 U.S. at 458. The litigants

challenging that law “produced impressive supporting evidence at trial” showing that the classification would actually drive consumers to paperboard cartons that were allegedly more harmful to the environment than plastic containers. Id. at 463-64. Nevertheless, their challenge failed. The Supreme Court explained, “litigants may not procure invalidation of the legislation merely by tendering evidence in court that the legislature was mistaken.” Id. at 464. With respect to the goal of “encourag[ing] the use of environmentally superior containers” (id. at 465), the Minnesota legislature was permitted to “implement [its] program step by step, . . . adopting regulations that only partially ameliorate a perceived evil and deferring complete elimination of the

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evil to future regulations” (id. at 466 [alterations in original; internal quotation marks omitted]). The Court elaborated: The Equal Protection Clause does not deny the State of Minnesota the authority to ban one type of milk container conceded to cause environmental problems, merely because another type, already established in the market, is permitted to continue in use. Whether in fact the Act will promote more environmentally desirable milk packaging is not the question: the Equal Protection Clause is satisfied by our conclusion that the Minnesota Legislature could rationally have decided that its ban on plastic nonreturnable milk jugs might foster greater use of environmentally desirable alternatives. The principles articulated by the Supreme Court dictate that the rational basis test be focused on the statute’s rationality at the time it was enacted, and not at the time of some future litigation. A claim that post-enactment developments have rendered a classification unconstitutional is effectively a claim that the legislature failed to predict accurately how circumstances would change between the time of enactment and the time of the litigation. The case law just discussed makes clear that a claim framed in such a manner must fail: one challenging a statutory classification cannot succeed on an equal protection claim by proving that the classification was mistaken or failed to accomplish its objectives (e.g., W. & S. Life Ins. Co., 451 U.S. at 671-72; Clover Leaf Creamery Co., 449 U.S. at 464). Moreover, a rational basis test that allowed courts to take post-enactment circumstances into account would require federal courts to sit as super legislatures to review the continued efficacy of virtually all statutory classifications and would empower them “to impose upon the States their views of what constitutes wise economic or social policy” (City of Dallas v. Stanglin, 490 U.S. at 27). Of course, this is precisely the result that the Supreme Court’s equal protection jurisprudence has sought to avoid. Applying the principles, appellate and district courts in this and other circuits have concluded that a statute’s rationality must be judged as of the time the statute was enacted. For

Id.

example, the Fourth Circuit rejected an equal protection challenge to a “legislatively-enacted 13

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program under which certain South Carolina products and South Carolina vendors [were] given slight preferences in the bidding process for certain types of state procurement.” Smith Setzer & Sons, Inc. v. S.C. Procurement Review Panel, 20 F.3d 1311, 1314, 1323-24 (4th Cir. 1994). The court noted that expert testimony had indicated that the scheme did not benefit the state’s economy. Id. at 1323. However, the court explained, even if it “believe[d] that this law does not achieve the benefits its purpose suggests, it is not our place to substitute our judgment for that of the democratic body that enacted these statutes.” Id. at 1324. Rather, the burden was on the challenger to show “that, at the time of the enactment of these statutes and regulations, the legislature could not reasonably have conceived that the reinvestment of tax dollars into the community, even when it calls for purchasing goods for more than the lowest price available, would benefit its constituent citizenry.” Id. (emphasis added). Similarly, the First Circuit upheld a statute that limited business transactions on Sundays, holidays, and during certain hours, against an argument that the law, as of the time of the litigation, no longer bore “a rational relationship to the actual purpose behind its original enactment in 1902.” Montalvo-Huertas v. Rivera-Cruz, 885 F.2d 971, 977 (1st Cir. 1989). The First Circuit disregarded the challengers’ purportedly supportive statistical evidence, explaining that “the constitutional inquiry does not depend upon whether the Closing Law has in fact achieved its goal. Neither the wisdom nor actual efficacy of the legislative judgment is before us”; the proper question was whether the legislature “‘rationally could have believed that [the Closing Law] would promote its objective.’” Id. at 980-81 (quoting W. & S. Life Ins. Co., 451 U.S. at 671-72 [alteration added by court]). The decisions in the Second Circuit are consistent with this reasoning. In United States v. Acoff, 634 F.3d 200 (2d Cir. 2011), the Second Circuit rejected a defendant’s equal protection challenged to a sentencing statute and, in explaining its ruling, referred to the time of the statute’s

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enactment. In Acoff, the defendant had argued that the mandatory statutory minimum sentence for his crime should not apply to him. In particular, the defendant argued that the sentence should not apply (1) due to “intervening congressional legislation that reduced sentences for certain crack cocaine offenses,” and (2) because “there is no rational basis for the disparity between sentences for crack and powder cocaine” created by the statute. Id. at 202. The Second Circuit rejected the first claim, concluding that the new legislation did not have retroactive effect. As for Acoff’s equal protection claim, the Court stated, “[a]s we have noted in another context, ‘[a] congressional decision that a statute is unfair, outdated, and in need of improvement does not mean that the statute when enacted was wholly irrational or, for purposes of rational basis review, unconstitutional.’” Id. at 203, citing Smart v. Ashcroft, 401 F.3d 119, 123 (2d Cir.2005). Notably, in making that statement, the Court evidently was addressing the fact that, since the statute’s enactment, information had emerged about “the drugs' similarities in terms of effect and addictiveness and about the racially disparate impact” of the sentencing scheme – a fact which Judge Calabresi noted in his concurring opinion (id. at 203 [Calabresi, J., concurring op.]) and which Acoff apparently had advanced in support of his equal protection challenge. In Businesses for a Better New York v. Angello, the Court of Appeals rejected a claim “that enforcement of New York’s scaffold laws” violated the Equal Protection Clause. 341 F. App’x 701, 704 (2d Cir. 2009) (summary order). In their brief, the challengers did not dispute that the scaffold laws were rationally based “at the time of their enactment,” but argued that the laws should be evaluated based on their “current impact on New York’s construction industry.” Br. for Plaintiff’sAppellants, Businesses for a Better N.Y. v. Angello, 341 F. App’x 701 (2d Cir. 2009), available at 2007 WL 6475514. In that regard, the challengers argued that the laws were “no longer rationally related to the legitimate state purpose underlying their enactment.” Id. The Court of Appeals rejected the challengers’ view of the rational basis test:

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Notwithstanding the obvious purpose of the scaffold laws to minimize injuries to construction workers, and the evident reasonable belief of the New York legislature that the enactment of the laws would serve that purpose, [challenger] argues that in practice and fact the use of the challenged classification does not promote the stated purpose. That is not the legal test: “[W]hether in fact the [challenged statute] will accomplish its objectives is not the question: the Equal Protection Clause is satisfied if we conclude that the [state] Legislature rationally could have believed that the [action] would promote its objective.” Id. (quoting W. & S. Life Ins. Co., 451 U.S. at 671-72); see also Adams v. New York State Dep’t of Educ., 752 F. Supp. 2d 420, 460 (S.D.N.Y. 2010) (Marrero, J., adopting Peck, J.’s, recommendation and report) (rejecting a challenge to New York City’s process for disciplining teachers, where plaintiffs claimed that “a rational basis for the law in 2000 was its perceived efficiency, but … that it ha[d] not proved to be efficient”; determining that, “[t]he issue is the rational basis for the law when passed - which plaintiffs concede - not looking back with hindsight.” [record citation omitted]).

B. The Legislature had a rational basis for enacting N.Y. Unconsolidated Law § 8905-a.

As shown, a statutory classification satisfies the rational basis test if it was rationally based when the statute was enacted. Here, the legislative history of N.Y. Unconsolidated Law § 8905-a and Plaintiffs’ own allegations provides ample rational basis for the classifications in the statute. As set forth in the legislative history, the Legislature conducted a hearing at which it heard and viewed evidence relating to the risks of injury and other harm that UF/EF posed to participants and the public. The legislators viewed recordings of UF/EF bouts and, thus, could assess firsthand the nature of the sport and its potential for physical injury (Schwartz Decl. Ex. A at 6). Further, the legislature heard doctors testify to a litany of medical concerns regarding the rules of the sport - to the extent they existed – and the types of potential injuries that could be expected as a result of those rules. For 16

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example, one doctor expressed concern that fighters were permitted to “strike with any part of their body” - a rule not found in other organized sports and one that the doctor believed invited “the danger of head butting” (id. at 19). Doctors also noted that potential injuries included, among others,

concussions, hemorrhages, lacerations, and fractures (id. at 11-51). The legislature also received the written statement of Dr. Estwanik, a proponent of the sport. Although Dr. Estwanik advocated for the regulation (rather than a ban) of UF/EF, he recounted his observations of injuries sustained by participants at three competitions that the doctor observed from ringside. From those contests alone, Dr. Estwanik observed, among other injuries, loss of consciousness, a minor concussion, contusions, cauliflower ear, and exhaustion due to dehydration (id. at 49-50). Accordingly, Plaintiffs’ claim that the legislative history was “virtually devoid” of information regarding the safety of professional EF/UF/MMA is inaccurate. Moreover, to the extent that the medical evidence before the legislature was limited, that is hardly surprising. As described throughout the Complaint, UF/EF/MMA was in its infant stages at the time of the statute’s enactment. The available evidence indicated that the sport was injurious in nature. Thus, it was entirely appropriate, and quite rational, for the legislature to act on the basis of that evidence to protect fighter safety. “Due process does not require a legislative body to await concrete proof of reasonable but unproven assumptions before acting to safeguard the health of its citizens.” Beach Communications, 508 U.S. at 313; see also Clover Leaf Creamery Co., 449 U.S. at 464 (challenging a statutory classification cannot succeed on an equal protection claim that empirical evidence reveals that the legislature was mistaken); W. & S. Life Ins. Co., 451 U.S. at 671-72 (1981). Plaintiffs also criticize the statute as irrational because it bans only live professional EF/UF/MMA, while not banning martial arts and other sporting events, purportedly far more dangerous (C ¶¶285-287). In that regard, Plaintiffs complain that the statute “explicitly exempts a variety of martial arts, including judo, tae kwon do, karate, and kenpo,” but not MMA, which

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“essentially is a combination of martial arts, all of which are allowed and regulated” id. This assertion amounts to no more than a complaint that the statue is under- or over-inclusive. However, as already discussed in section A supra, a statute is not unconstitutional merely because its classification may be over- or under-inclusive. See e.g., Heller, 509 U.S. at 321, 324. Similarly, that the legislature could have gone farther to remedy the problem it perceived – for example, by banning boxing, all martial arts and other professional athletic activity - does not render the legislation unconstitutional. Minnesota v. Clover Leaf Creamery Co., 449 U.S. at 466. Put another way, given the “substantial latitude” accorded to legislators when creating regulatory classifications, New York’s ban on UF/EF/MMA was not unconstitutional even if it only “roughly approximate[d] the nature of the problem perceive[d].” Plyler v. Doe, 457 U.S. 202, 216 (1982). In fact, even if those “rough accommodations” were “‘illogical’” or “‘unscientific,’” the statute still would not be invalid. Dandridge, 397 U.S. at 485. In that same vein, legislators are permitted to “implement [a] program step by step, . . . adopting regulations that only partially ameliorate [the] perceived evil and deferring complete elimination of the evil to future regulations.” Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 466 (1981) (alterations in original; internal quotation marks omitted). See also Hayden v. Paterson, 594 F.3d 150, 171 (2d Cir. 2010) (upholding law, notwithstanding “some oddity” in classifications, because “rational basis review allows legislatures to act incrementally and to pass laws that are over (and under) inclusive without violating the Fourteenth Amendment”). More fundamentally, while Plaintiffs complain that UF/EF/MMA is as safe as, or safer than, other sports, even Plaintiffs admit, at the time N.Y. Unconsol. Law § 8905-a was enacted, UF/EF/MMA was not the “evolved” sport it allegedly is today. In 1997, UF/EF/MMA was an infant; it had no regulatory organization; its contestants and various promoters did not adhere to any set of uniform rules; and the few rules in existence led promoters to advertise the contests as a “no holds barred” blood sport, or “fights to the death,” and to claim the matches would “run until there is a

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designated winner - by means of knock-out, surrender, doctor’s intervention, or death” (C ¶23). By contrast, the athletic activities to which Plaintiffs compare UF/EF/MMA had been in existence for extended periods of time, some for many decades, and had long-standing and well-established rules. UF/EF/MMA simply was not “like” these other established professional sports. To the

contrary, it is “the only sport … birthed during this generation” (C ¶47). Put another way, MMA is of “recent vintage.” See City of New Orleans, 427 U.S. at 305. A legislature is entitled to draw a distinction between entities based on how long they have been in existence, so long as that distinction rationally relates to a governmental interest. See id. at 305, (“[R]ather than proceeding by the immediate and absolute abolition of all pushcart food vendors, the city could rationally choose initially to eliminate vendors of more recent vintage” since those older vendors added to the character and charm of the city). Wrestling, boxing and sparring have very defined rules and these sports have been regulated for decades. See generally N.Y. Uncons. Laws §§ 8901-9034, formerly New York L. 1920, Ch. 912. Similarly, professional judo, tae kwon do, karate, and kenpo have long had specific rules and they have long been self-regulated by their respective organizations. Other professional sports, such as football and ice hockey also have extended histories and established rules, and have been self-regulated by recognized associations for years, such as the National Football League and the National Hockey League. Certainly, in 1997, all of these sports differed significantly from UF/EF/MMA: These sports had been regulated and played for decades. Thus, the inherent risks in playing those sports could be reasonably predicted and foreseen. By comparison, UF/EF/MMA had few established rules, and a short lived history. Thus, the legislature could have rationally determined that UF/EF/MMA, far more than the older sports, presented unforeseen and unpredictable risks to its participants. Indeed, this very point was raised by Dr. Dane during the 1996 hearings, when he forewarned the legislature that the

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sport “endangere[d] the health and safety of its participants in a variety of…ways, some of which will not be appreciated…until it is unfortunately too late.” (Schwartz Decl. Exh. A at 24). The need for established rules and predictable risks in a sport cannot be understated. From a personal safety point of view, participants should be able to assess what injuries they are risking when they participate in a sport. That is, a fighter entering the fighting cage should be able to assess that risk, no less than a professional athlete entering a boxing ring, stepping onto a football field or skating onto a hockey rink. In addition, the businesses involved in professional sporting events need to know those risks. Notably, New York tort law speaks to the assumption of risk athletes undertake when participating in sporting activities, and reflects the importance of being able to reasonably predict that risk. As noted by the Court of Appeals “[r]elieving an owner or operator of a sporting venue from liability for inherent risks of engaging in a sport is justified when a consenting participant is aware of the risks; has an appreciation of the nature of the risks; and voluntarily assumes the risks.” Morgan v State of New York, 90 N.Y.2d 471,484 (1997). “[B]y engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation. Thus, the risks of becoming injured … are risks which various participants are legally deemed to have accepted personal responsibility for because they commonly inhere in the nature of those activities.” Id.; Turcotte v Fell, 68 NY2d 432, 439 (1986)(“[P]articipants properly may be held to have consented, by their participation, to those injurycausing events which are known, apparent or reasonably foreseeable consequences of the participation”); Deangelis v Izzo,192 A.D.2d 823, 824 (3d Dept. 1993) (“Given the limited amount of plaintiff's preparation, it is not at all clear that the risks to which plaintiff was to be exposed … would have been 'known, apparent or reasonably foreseeable' to him”). Thus, obvious differences existed between UF/EF/MMA and the other professional sports in 1997 and provided the legislature with a rational basis for banning UF/EF/MMA as distinguished from

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those other sports. But even if the differences between UF/EF/MMA and other sports were not so pronounced, and the line drawn by the legislature imperfect, “it is nevertheless the rule that . . . ‘perfection is by no means required.’” Vance v. Bradley, 440 U.S. 93, 108 (1979). Thus, that Plaintiffs may complain that UF/EF/MMA has “an almost equally strong claim to favored treatment,” so as to “be placed” on the side of boxing or some other regulated sports, does not advance their claims. The fact “that the line might have been drawn differently at some points is a matter for legislative, rather than judicial, consideration.” Beach Commc’ns, 508 U.S. at 315-16. Clearly, "[e]vils in the same field may be of different dimensions and proportions, requiring different remedies ... [and] ... [t]he legislature may select one phase of one field and apply a remedy there, [while] neglecting the others.” Williamson, 348 U.S. at 489 (internal citations omitted).
7

Plaintiffs also object to N.Y. Unconsol. Law § 8905-a., because, while it prohibits “live professional MMA,” it is silent as to amateur UF/EF/MMA contests, which “undoubtedly occur every day” (C ¶285). They further claim the statute is “vague” as it is unclear whether the ban applies to amateur MMA exhibitions. Id. 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, 8 the

DA Vance relies on the arguments put forth by AG Schneiderman that address the Complaint’s claim that the New York State Legislature misperceived MMA’s message to be that of violence, and thus will not repeat or expand on those arguments for purposes of this limited motion See generally, N.Y. Uncons. Laws §§ 8901-9034. In addition, There are certain amateur boxing matches or exhibitions specifically exempted from the Commission’s jurisdiction: those held under the supervision of either the military or an educational institution, and contests conducted under the supervision of the U.S. Amateur Boxing Federation (now known as USA Boxing). N.Y. Uncons. Laws § 8931. See American Boxing & Athletic Assn. v Chemung County YMCA, 13 A.D.3d 842, 844 (3d Dept. 2004) (“[A] state may regulate some activities over others as long as a classification is (Continued…)
8

7

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legislature has not enacted a provision expressly addressing any amateur martial arts activity. Accordingly, the statute does not treat amateur UF/EF/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 (C ¶110). Plainly, the legislature had a rational basis for explicitly banning professional MMA bouts, but not to address amateur contests. In the end, Plaintiffs’ objection to some perceived disparate treatment is addressed by the principle that “[a] classification does not fail rational-basis review” even “because in practice it results in some inequality.” Heller, 509 U.S. at 321 (internal quotation marks omitted). The statutory classifications of N.Y. Unconsolidated Law § 8905-a satisfies the rational basis test as they were rationally based when the statute was enacted. C. Legislature has a rational basis for not repealing N.Y. Unconsol. Law § 8905-a.

As shown, a statute passes the rational basis test if it was rationally based when enacted. And the statute challenged by Plaintiffs was clearly rational at the time of its enactment. But, in fact, even if rational basis review focused on present day circumstances, Plaintiffs claims would still fail. Plaintiffs claim that, today, there is no rational basis for the continued prohibition against UF/EF/MMA, since studies show that it is as safe as, or safer than, other sports and activities that are

__________________ (…Continued) not arbitrary and bears a rational relation to a legitimate government interest ... Here, the distinction is rational because the risk to public health and safety under the supervision of these specified groups is remote inasmuch as they maintain their own rules to promote the safety of participants.”)

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not banned (C 282-284). 9

As already noted, the Supreme Court has made it clear that states are

permitted to enact a ban while “grandfathering-in” certain groups based upon their long existence, so long as that distinction relates to the statute’s purpose. City of New Orleans, 427 U.S. at 305. As previously discussed, the other combative and non-combative professional sports referenced by Plaintiff are long-standing and have well-established rules. MMA on the other hand is of “recent vintage.” And, the UFC, a largest promoter of the sport, has only developed a uniform set of MMA rules in the past decade (C ¶¶43, 79- 80). These distinctions present a rational basis for the continuation of the ban. Indeed, even accepting Plaintiffs claims that “studies” show that MMA is as safe as, or safer, than many other legalized sports, their rules and safety record are short lived. Whatever studies relied upon by Plaintiffs for claims of safety simply cannot include the long term effects of injuries sustained during modern day UF/EF/MMA. One recent study referenced by the Plaintiffs raises this very point. There, the researchers concluded that “although the absolute risk for chronic traumatic brain injury in

Plaintiffs reference the following study in support of the allegation that MMA is as safe as or safer than other sports. Ngai, K., Levy, F. &. Hsu, E., Injury trends in sanctioned mixed martial arts competition: a 5-year review from 2002 to 2007, Br. J. Sports Med. 42:686-689, at 686 (2008); (C fn.54)(See Declaration Patricia J. Bailey, dated January 27, 2012, Exhibit A). In fact, that study provides a rational basis for the prohibition today. The authors reviewed the ringside physicians’ injury reports for 635 professional MMA matches held in Nevada. 300 of the 1270 fighters sustained documented injuries, resulting in an injury rate of 23.6 per 100 fight participations. Of the 21 matches ending by knock-out, 21 fighters suffered a severe concussion. Id. at 687. The authors specifically rejected the comparison of MMA to boxing noting, that “MMA invites comparison with boxing, which has seen ranging from 17.1 to 25 injuries per 100 fight participations; however, MMA and boxing are distinct sports with different equipment, rules and standards.” Id. at 688 Further, since the injury reports were based on ringside observations - which had not been confirmed by follow-up examinations or neurological testing - “further studies to address this gap are needed.” Id. 688-89. Additionally, a “formal diagnosis of acute traumatic brain injury and concussion requires assessment parameters that were not documented or not available. This may contribute to an underestimate of such injuries. Furthermore, although the absolute risk for chronic traumatic brain injury in combat sports such as modern-day boxing has been deemed by well-respected experts to be low, it is too early to determine whether such findings can be extrapolated to MMA.” Id. at 689 (emphasis added)
9

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combat sports such as modern-day boxing has been deemed by well-respected experts to be low, it is too early to determine whether such findings can be extrapolated to MMA.” (Bailey Decl. Exh. A at 689). Given UF/EF/MMA’s “no-holds-barred” roots, coupled with its relatively short history as a regulated sport, today’s legislature could rationally decide to await more concrete proof of the actual risks and dangers to UF/EF/MMA’s participants, and to what extent those risks are greater or lesser than other sports, before repealing N.Y. Unconsol. Law § 8905-a. See Beatie v. City of New York, 123 F.3d 707, 712 (2d. Cir 1997) (A court need find only a ‘reasonably conceivable state of facts that could provide a rational basis’ for the legislative action). Finally, one more observation should be made. Plaintiffs’ complaint overlooks that N. Y. Unconsol. Laws § 8905-a 1 empowers the Athletic Commission “to promulgate regulations which would establish a process to allow for the inclusion or removal of martial arts organizations from” the list of exempted organizations. N. Y. Unconsol.Laws § 8905-a 1. The provision also sets forth criteria for the Commission to use to assess whether a martial arts organization should be added to or removed from the list. Thus, the legislature made provisions for future adjustment of the very classification Plaintiffs challenge. Especially in light of this provision, Plaintiffs have no claim that the statute is irrational, even if its rationality is evaluated in light of the current circumstances.

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CONCLUSION Even assuming the truth of the Complaints allegations, the claims must fail as the New York Legislature had a rational basis for enacting the challenged legislation and the classifications created in it. It cannot be stated that “no reasonably conceivably state of facts” existed which could justify the enactment of N.Y. Unconsol. Law § 8905-a. Accordingly, no equal protection or due process claims can be had, and Plaintiffs’ Fourth and Fifth Causes of Action should be dismissed.

Dated:

January 27, 2012 New York, New York

Cyrus R. Vance Jr. District Attorney, New York County as Special Assistant Corporation Counsel One Hogan Place New York, New York 10013 (212) 335-9000 (telephone) (212) 335-4390 (facsimile)

By: __/S/_______________ Patricia J. Bailey David E. A. Crowley Assistant District Attorneys Of Counsel

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