As a New Commissioner of the New York State Athletic Commission Begins Her Tenure, The Question is Begged as to Whether Two Former World Champions That Were Placed on Administrative Suspension by Her Predecessor Could Have Done Anything to Reclaim Their Boxing Licenses

            Throughout the 1990s, Evander Holyfield and Junior Jones were among the boxing elite.  Holyfield, a 1984 Olympic bronze medalist, former undisputed cruiserweight champion, and one-time undisputed heavyweight champion of the world punched his way into boxing immortality through a series of exciting fights, including his epic trilogy with fellow heavyweight champion Riddick Bowe and his crushing knockout of Mike Tyson.  Jones, a former two-time New York Golden Gloves champion as an amateur, rose to prominence with a hard-fought unanimous decision win over Jorge Eliecer Julio for the WBA bantamweight title, and sealed his place in boxing history with back-to-back victories over the previously undefeated Mexican legend-in-the-making Marco Antonio Barrera for a portion of the super bantamweight crown.  Like many top boxers before them though, both Holyfield and Jones took their share of losses against their younger peers as they got older and inched towards veteran status.  Perhaps the most devastating blows they ever received, however, came not from any of their opponents in the ring, but rather from the New York State Athletic Commission (hereinafter the “Commission”) and its former Commissioner, Ron Scott Stevens.  The punch thrown: an administrative suspension. 

Holyfield was placed on administrative suspension in 2005 following a lopsided points loss to fringe heavyweight contender Larry Donald at Madison Square Garden.  His loss convinced the Commission that his skills had eroded to such a degree that he should not be boxing in New York anymore.  Jones, who was planning a comeback, was given his suspension around the same time after the Commission decided he had “diminished skills,” despite not having fought in three years.[1]  In an instant, Holyfield became a marginalized, but still lucrative boxer fighting both overseas and under the auspices of some of America’s weakest boxing commissions, while Jones was effectively retired by the athletic commission of the very state where he fought his way into amateur boxing greatness.  Neither appealed their suspension.  While many boxing cognoscenti felt that Holyfield and Jones were being saved from themselves by their respective suspensions, the laws governing the use of the administrative suspension beg the question: How would Holyfield and Jones have successfully contested their suspensions? Or, to put it another way, how could they have avoided being losers by administrative knockout?

            The Definition of Administrative Suspension and Its Implications

            Under Section 1812 of the Unconsolidated Laws of New York, the New York State Athletic Commission is given the power to exercise its discretion when issuing boxing licenses so that it may determine whether the “financial responsibility, experience, character, and general fitness of an applicant…are such that participation of such applicant will be consistent with the public interest, convenience or necessity of the safety of boxing and wrestling participants and with the best interests of boxing or wrestling generally[.]”   In its exercise of this discretion, the Commission is empowered to issue both medical suspensions, which are based on objective medical findings of a fighter’s temporary or permanent unfitness to box, and administrative suspensions, which are subjective and based on any number of factors, including personal observations of members of the Commission and anecdotal evidence from people around boxing.

The differences between the two types of suspensions are significant.   Under a medical suspension, a professional boxer is not permitted to receive a license to box for a fixed or indefinite period of time in any member commission of the Association of Boxing Commissions, the organization that promotes uniformity in boxing throughout the United States, the Native American Tribal Nations, and Canada.[2]  If a boxer is administratively suspended by an individual commission, however, another state, tribal nation, or provincial commission may use its discretion in determining whether or not to license a suspended boxer to fight.  Notations regarding both types of suspension are made in a compendium put together by Fight Fax, Inc., the official record keeper of professional boxing.  Each commission has access to the suspension information contained in Fight Fax, Inc.’s database and can base their decisions on whether or not to issue licenses based upon the information within.          

      The Appeals Process for a New York State Athletic Commission Suspension

The New York State Athletic Commission is mandated to deliver all bulletins and notices to its licensees to the licensee’s registered address.[3]  Once a boxer is suspended by the New York State Athletic Commission and receives notice of same at his registered address, he is entitled to submit a written request for a hearing “to determine whether such suspension should be rescinded” within 30 days after “the date of notice of suspension.”[4]  At the hearing, “licensees and other witnesses shall testify under oath or affirmation, which may be administered by any commissioner or authorized representative of the commission actually present.”[5]  The New York State Athletic Commission is the “sole judge of the relevancy and competency of testimony and other evidence, the credibility of witnesses, and the sufficiency of the evidence”[6] presented at the hearing.  After the hearing, “the commission representatives conducting the hearing shall submit findings of fact and recommendations to the commission, which shall not be binding on the commission.”[7]

      In the case of administrative suspensions, the above-referenced procedure may seem absurd when its application is contemplated.  That is because, in essence, the boxer must petition the New York State Athletic Commission within a month of his administrative suspension to argue that he does not have, for example, “diminished skills” and that the Commission’s subjective observations and conclusions are flawed.  Further, the onus falls entirely on the boxer to disprove the basis of the administrative suspension and not at all on the Commission, which must simply furnish a rational basis for their decision to suspend the boxer[8] and does not need to assign any probative value to the evidence presented.  In short, the boxer-petitioner is telling the same administrative body that just deemed him unfit to fight anymore that he is fit to continue fighting through the presentation of evidence that the Commission need not consider.  Even if the appeals process sounds like an exercise in futility, however, an attempt to bypass the initial appeal can be fatal to a boxer’s chance to get his suspension lifted.  This will be discussed more below.

Taking The New York State Athletic Commission to Court 

Under Article 78 of New York State’s Civil Practice Law and Rules, an individual that is aggrieved by the action of an administrative agency may file a lawsuit against that agency to challenge the basis of its determination.  Among the issues that may be raised in an Article 78 proceeding “is ‘whether a determination was made in error of law or was arbitrary and capricious or an abuse of discretion[]’”[9] or “lacking a rational basis[.]”[10]   “An Article 78 proceeding “must be commenced within four months after the administrative determination to be reviewed becomes ‘final and binding upon the petitioner.’”[11]  Only when the individual seeking review has been harmed by the administrative determination does it become “final and binding.”[12]  Necessarily then, when an agency creates the impression that a determination was intended to be non-conclusive, the statute of limitations does not start to run.[13]

Generally, an individual seeking to file an Article 78 proceeding must first exhaust all of his administrative remedies, meaning that if the government agency that suspended them had an in-house appeals process, the individual would first have to go through that appeals process before he could seek relief from the courts.[14]  A court may dismiss an Article 78 proceeding for not utilizing said appeals processes.[15]  An exception to the general rule arises if an aggrieved party can establish that it would have been futile to exhaust all of their administrative remedies prior to filing an Article 78 proceeding.[16]  This can be demonstrated by showing that the appeals process set up by a particular agency has an air of futility, either because those reviewing the appeal are the exact same people that issued the suspension in the first instance, that employees of the agency displayed an animus unique to the individual prior to his suspension, or otherwise. 

The New York State Athletic Commission is a New York State administrative agency and, as such, is subject to judicial review through an Article 78 proceeding.  Prior to filing an Article 78 proceeding against the Commission, a boxer placed on administrative suspension must first go through the initial hearing detailed above.  If a boxer were to bypass the hearing and simply file an Article 78 lawsuit, a court would be well within its discretion to dismiss the lawsuit for failure to exhaust his administrative remedies.   That is, of course, unless they can demonstrate to the court that it would have been futile based upon the rationale provided by the Commission for their administrative suspension.

The Arguments Not Made on Behalf of Holyfield and Jones

What arguments could Evander Holyfield or Junior Jones have offered in support of a lawsuit against the Commission?   While it would be difficult to show an “error of law” with regard to the Commission’s administrative suspensions, given the wide latitude that it has in administering them, one argument that could have been made was that their suspensions were “arbitrary and capricious.”  With Holyfield and Jones, it appears that their early blessings, in terms of ability and talent, became their curses.  An argument could be made that they were arbitrarily and with caprice held to a higher standard than the average opponent that is brought in to lose, a local ticket seller of limited capability to begin with, or a more lightly regarded world class contender or titleholder.  Perhaps a statistical analysis could have been done of those who were not suspended in New York despite a number of particularly brutal or telling losses over the later portion of their careers.  Indeed, Muhammad Ali had success in his lawsuit against the Commission by demonstrating that the basis provided for his denial of license, his criminal conviction for evading the draft, was arbitrary and capricious after he was able to show that there were scores of individuals with criminal convictions that were granted licenses by the Commission prior to the denial of his application.[17]  Similarly, Holyfield or Jones could have attempted to document the losses taken in the later portion of the careers of other boxers that fought in New York around the same time that they were suspended.  If a statistically remarkable amount of boxers showed an appreciable decline in their skill levels, but were granted licenses, perhaps a successful argument could have been made that the Commission acted in an arbitrary and capricious manner when it handed down their administrative suspensions.

Alternately, Holyfield and Jones could have also argued that their respective administrative suspensions lacked rational bases.  Holyfield could have made the argument that he simply had a bad night against Larry Donald, himself a former Olympian and top 25 boxer at that time, and that the losses that he suffered prior to the Donald fight were to top flight competition and not to the heavyweight division’s peasant class.[18]  Jones, who had not fought in three years prior to his suspension, could have argued that his suspension lacked a rational basis, as it came about without as much as a single comeback fight to demonstrate what abilities he may have had left following his three-year hiatus from the ring.[19]

Each of the above arguments could have been rebutted by the Commission by virtue of the fact that it is bestowed with the ability, under Section 1812 of the Unconsolidated Laws of New York, to “exercise its discretion” in determining whether a boxer has the “general fitness” to be given a license.  With regard to a claim that it acted arbitrarily and capriciously with regard to Holyfield, the Commission could have argued that Holyfield, in showing porous defense, minimal offense, and marked lethargy in his loss to Donald, appeared wholly unable to compete any longer on a world class level in boxing and was a threat to his own well-being for as long as he continued to take on the caliber of boxer that he been facing for so many years. In short, the Commission could have stated that Holyfield no longer had the “general fitness” to continue boxing in New York State.  Jones, the Commission could have argued, had lost to a boxer that was not on his level in his last match three years earlier, was only three years older at the time he was suspended, and generally appeared more vulnerable to a lesser caliber of boxers that had been the case earlier in his career.  Thus, the Commission could have argued Jones was also a threat to his own well-being and that he too did not have the “general fitness” to continue boxing in New York State.  

The rational basis arguments could have been rebutted on substantially similar grounds as the arbitrary and capricious arguments.  Briefly, the Commission could have argued that it rationally exercised its discretion in finding, through its subjective observations, that Holyfield and Jones did not demonstrate the “general fitness” to box in New York State anymore.[20]  In support of their claims, the Commission could have submitted affidavits and sworn testimony on what its members, licensees, and other boxing insiders had observed with regard to each boxer in the months and years preceding their suspensions. 

Even Winners Can Be Losers

 Whether or not Holyfield and Jones could have succeeded in court on the merits of the above- proffered arguments, or others not advanced herein, a bigger nemesis faced each of them in the event that they lost their initial appeals to the Commission: Father Time.  Lawsuits, barring early resolutions, take an appreciable amount of time to make their way through the New York State court system.  At the time of their suspensions, Holyfield was already 43-years-old and Jones was 35.  In boxing years, time was of the essence to each of their careers.   Even if they had fought the decisions to administratively suspend them and won, they would have already lost additional months and years off of the tail end of their careers.

Conclusion

Whatever someone’s personal opinion is of whether or not Evander Holyfield or Junior Jones should have been cleared to continue boxing by the Commission, their administrative suspensions raise some intriguing questions about the powerful sway that the Commission can have over a boxer’s career.  Taken to its logical extreme, if the Commission observes a single sparring session in which a formerly untouchable boxer takes an unusual beating, or someone overhears a single conversation during a night of boxing at the Roseland Ballroom where a once capable boxer sounds a little more garbled than he used to, the AKO can be scored against them with little chance of their winning a successful appeal of it.   As Melvina Lathan, a long-time professional boxing judge, ventures deeper into her new position as the Chairwoman of the New York State Athletic Commission after replacing Ron Scott Stevens, the man who was ultimately responsible for suspending Holyfield and Jones, one has to wonder if she too will be inclined to take such powerful measures to hasten the end of the careers of other professional boxers.  If so, who will be next on the chopping block?  Perhaps it will be another aging legend or two.  Or perhaps it will be a boxer that you manage or promote if he does not give Lathan and the Commission the right signals while fighting, sparring, or conversing in New York State’s gyms and fight venues.   The moral of the story:  Even if a veteran boxer protects himself at all times in New York, the administrative suspension can split his guard and end his career in a flash.

Paul Stuart Haberman, Esq. is an attorney at the New York law firm of Heidell, Pittoni, Murphy & Bach, L.L.P.  He is also a New York State licensed boxing manager and the Chairman of the Sports Law Committee of the New York County Lawyers Association.   Mr. Haberman represented Junior Jones’s manager back in 2006.  ©