Thursday, March 27, 2014

Constitutional Insurgency: Inside Zuffa's Other Battle for MMA in New York


Wars nowadays are rarely fought with two armies advancing upon each other, guns and cannons firing into the approaching massed ranks while generals stand upon hilltops to watch their marching wooden pieces fall. No, conflicts are instead contested on different fronts, with different tactics and kinds of soldiers, soldiers waging battles quite unlike what’s transpiring on that very open and bloody field.

In the First Boer War, it was Dutch settlers-turned-guerrillas, skirmishing against British rule, while in the Second World War, French and Polish resistance fighters made life rough for occupying Germans. More recently, the opening phase of Operation Enduring Freedom saw small groups of U.S. Special Forces unite Afghanistan tribesman to topple the Taliban government.

And in New York, while a very public and political war is being waged by lobbyists and legislators in Albany to change the law banning professional mixed martial arts – a law in place since 1997 – a squad of irregulars (a.k.a., lawyers) are emerging from the brush to attack and raid and set fire to the very Constitutionality the law was presumed to have been constructed upon.

On Tuesday I saw that side of the war up close, and amidst the flying bullets and sudden charges with fixed bayonets, I was able to stick my head up and survey the melee.

From what I could see, it’s going pretty damn well for those who want pro MMA in New York.

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I was there because of a subpoena I had received in February, a document hand-delivered by a process server from the Department of State who buzzed my door one Saturday morning and was apologetic for the disturbance.
Back in late 2011, the lawsuit filed by the attorneys representing Zuffa consisted of a number of arguments – that the law violated the First Amendment, that it violated Due Process, that it violated this and that – but by 2014, back-and-forth motions to dismiss, responses and rulings had the suit whittled down to just one razor-keen cause of action: the law, as it had been applied, was vague. If that could be proven by Zuffa’s side, the case would be won.

For some reason, to help prove that the law containing the ban hadn’t been applied in a confusing manner, that throughout the years representatives of the State had held only one clear and consistent position on interpreting the law, the State Attorney General’s office thought I’d be a great witness. After all, I’ve covered all iterations of the sport in New York since 2001, interviewed athletic commissioners and promoters alike, and written countless words on the subject. Never mind that what I want – what I’ve always wanted – is to have MMA sanctioned in New York. If somewhere contained within my testimony, and in the thousand-plus pages of photocopied articles, notes and email correspondence amassed over the last 13 years that I had to turn over, was something useful to the State’s argument, they wanted me.
So there I was on Tuesday morning, in the conference room of a Midtown law firm, sitting at a table with the Deputy Section Chief of the Attorney General of the State of New York, Elizabeth Prickett-Morgan. Also present was counsel for Zuffa/guerilla leader Barry Friedman, his lieutenant Leah Ramos, and a court reporter.

I raised my right hand and swore to tell the truth and nothing but the truth.

Then I pulled out an old Full Contact Fighter sticker and gave it to Prickett-Morgan. “I want us to get off on the right foot,” I told her. She smiled, put the sticker in with her files, and promised to pass it on to her daughter.

Depositions can be arduous, but there’s no reason the soldiers in the battle can’t be nice to each other.

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She asked question after question. Some were softballs, like my name, my background, my work experience, and what, if any, martial arts I had studied. She asked who within the UFC I knew, and in what capacity. She even asked if Dana White reads my articles.

“I don’t know, but I’d like to think he does,” I said, which is probably what every MMA journalist would say. Who wouldn’t want to think that the big wigs of the sport read their stuff?
The barrage continued.

I wasn’t the first to be deposed for the case. Since the discovery phase had begun (discovery being the pre-trial stage where both sides gather and exchange the evidence they need to make their arguments), others had been called to appear and testify under oath. Duration of deposition is no indication of quality or how helpful testimony is, but for some reason I wanted mine to be the longest, and when I asked who currently held the record, I learned that Hugo Spindola, former counsel for the New York State Athletic Commission, was thus far the man to beat.

After an hour of Prickett-Morgan asking me questions pertaining things I’d written, and seeing how big her collection of my stuff remained, I felt optimistic about my chances.

She had printouts of things from 2003, articles that had appeared in Full Contact Fighter back when FCF was a monthly publication you could hold in your hands. She had printouts of blog posts, interviews with New York State Athletic Commissioner Jerome Becker and Spindola. There were articles that had appeared in the New York Press, – there were even tweets.

It’s a curious thing to have to revisit your work from a decade before, to clarify things you’d written almost in passing and had forgotten about. Yet there it was, a quote acquired from a simple phone call to the athletic commission one afternoon, a quote jotted down in pencil in a small notebook that contained mostly bout descriptions from local shows but also had in there a grocery list for a 2008 barbecue (seriously, what the heck did I need those chives for?).

Based on Prickett-Morgan’s line of questioning, a pattern was emerging.

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In 2004, I called Spindola and asked him about the law banning combative sports. It clearly banned pro MMA, but there was no mention in the statute about amateurs, and when I’d talked to Commissioner Becker the year prior, he had affirmed that the New York State Athletic Commission had no authority over amateur events. Wouldn’t that mean amateur MMA was legal?

Spindola had no problem expressing his disdain for the sport, but after I pressed him about how the statute read, he agreed that amateur MMA would be okay… if certain procedures were followed. First, a promoter wishing to stage an amateur MMA event would have to submit the names of all the competitors to the Commission, and the Commission would hand those names over to the Attorney General’s office, who would conduct a background check on the fighters to determine if they had any pro experience at all. Only after all the competitors were so affirmed as amateur would the show be allowed to go on.

For the State to fight the vagueness claim in the Zuffa lawsuit, they’d have to establish that there was always a clear message as to what was allowed and not allowed, and Prickett-Morgan was using all my interviews where the officials had consistently acknowledged that the law didn’t apply to unpaid amateurs.

Unfortunately for the State, reality makes their argument a tough one to sell, especially since over the years they consistently told promoters and other reporters that all MMA was banned, whether amateur or not. There was also the fact that the anti-MMA atmosphere the State had created pressured promoters to take their business elsewhere, and gave rise to an underground scene. Another roadblock to the State’s argument: when the lawsuit forced the Attorney General to publicly state in 2012 that amateur MMA was okay, the number of amateur events in New York went from seven underground shows a year to close to 50 well-advertised and highly-publicized events – clear statistical evidence that someone, somewhere had made it seem like the law banned MMA whether the contestant were paid or unpaid.

Of course, if there was vagueness when it came to amateur MMA, what of the notion of third-party sanctioning? Of the idea that the statute as written could permit one of the approved sanctioning organizations listed there to legally oversee a pro MMA show? Traditionally, guerillas can’t win wars on their own because by their very nature they can’t take and hold land. But to void a law for vagueness… that would be the equivalent of finding the enemy general, planting a bomb in his private latrine, and blowing him to smithereens.

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I was asked about the pro fighters who had competed in the Underground Combat League. I assumed that was meant to establish a legitimate reason why the athletic commission had pursued the UCL over the years, but I assured her there had only been three.

The motives behind many of the queries were sometimes readily apparent, but there were things I was asked where I couldn’t see why I was being asked them. Prickett-Morgan produced a 2009 email exchange with Commissioner Melvina Lathan where I had submitted to her my resume (“They’d be lucky to have you,” said Prickett-Morgan afterwards – a clear sign that that Full Contact Fighter sticker had done its job). I was also asked if I had had prior knowledge of certain quotes used by other journalists in articles they had written on the topic (I did – a clear sign that I had helped too many Wall Street Journal and New York Daily News reporters with their pieces for no byline or credit whatsoever).

The questions from Prickett-Morgan went on until the afternoon, and after a brief lunch break, Friedman – an expert legal marksman in addition to being an NYU law professor and counsel for Zuffa – methodically went through his list of questions.

And then, at a little after 4pm, it was over. I asked if the length of my testimony had broken the record held by Spindola. They all laughed. It did.

My deposition was now the longest.

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Insurgencies take time, especially the ones that are contingent on court dates and the schedules judges set for the parties. The lawsuit was filed at the end of 2011, and we’re now into 2014 – how much longer will this side of the New York MMA battle rage? I could only speculate, and given that I’m not privy to the other depositions and the legal maneuverings of the respective parties, my speculation has about as much value as an old-fashioned typewriter lugged into the sudden ambush of a supply train.

But I’ve seen one skirmish up close, and from what I could tell, our side is kicking the kind of ass that would’ve made Mao Tse-Tung, William Quantrill and Pancho Villa proud.

Without a doubt, whether it comes via lobbyist or lawyer, the war for sanctioned MMA in New York will ultimately be won.

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