The opinion of the court was delivered by: MANSFIELD
MANSFIELD, District Judge.
In this action for a declaratory judgment and injunction, plaintiff, Muhammad Ali, popularly known as Cassius Clay, has moved for a preliminary injunction restraining defendants from denying him a license to box in the State of New York. For the reasons stated below the motion is granted.
The essential facts are not in dispute. From 1961 until April, 1967, Ali was licensed to box in New York, where he was recognized as the World Heavyweight Champion. On April 28, 1967, the New York State Athletic Commission ("Commission" herein) suspended his license because of his refusal to submit to induction in the Armed Forces of the United States. On September 30 of the same year, Ali's license automatically expired pursuant to N.Y. Unconsolidated Laws § 8910, which provides that all such licenses are for one year's duration and automatically expire on that date.
On June 20, 1967, Ali, after a jury trial, was convicted in the United States District Court for the Southern District of Texas of the federal felony of refusing to submit to induction into the Armed Forces, 50 U.S.C. App. § 462(a), and was sentenced to a term of five years imprisonment. The sentencing judge indicated that he might be disposed to consider a reduction of the sentence if the conviction should be affirmed. The conviction was affirmed by the Fifth Circuit Court of Appeals, Clay v. United States, 397 F.2d 901 (5th Cir. 1968), but the Supreme Court remanded the case to the district court on March 24, 1969, to determine whether the conviction was tainted by evidence obtained through unlawful electronic surveillance. The district court, after holding hearings, decided that the conviction did not rest upon such evidence, and its determination was recently affirmed by the Fifth Circuit, United States v. Clay, 430 F.2d 165 (5th Cir. July 6, 1970). Ali is now in the process of petitioning the Supreme Court for certiorari.
During all of these proceedings in his criminal case, Ali has been at liberty upon a $5,000 bond. On September 22, 1969, he applied to the Commission for renewal of his license to box in New York. On October 14, 1969, the Commission unanimously denied his application because his "refusal to enter the service and [his] felony conviction in violation of Federal law is regarded by this Commission to be detrimental to the best interests of boxing, or to the public interest, convenience or necessity." In a letter to Ali dated October 16, 1969, defendant Dooley, Chairman of the Commission, reviewed the criminal proceedings, noted that Ali had no other criminal record, notified him of the Commission's denial of his application, and advised him that if the conviction should be reversed and he should reapply for a license, the Commission would "be more than pleased to reconsider this determination."
Approximately four months after the Texas district court's reaffirmation of Ali's conviction the present action was begun. Invoking our jurisdiction under 28 U.S.C. §§ 1343(3) and 1332(a), the complaint as originally drawn charged that the defendants' action in denying Ali a license because of his conviction for refusing to serve in the Armed Services violated his First and Fourteenth Amendment rights and constituted cruel and unusual punishment in violation of the Eighth Amendment, thus giving rise to a claim of 42 U.S.C. § 1983. Ali's Due Process claim was based on his general charge that defendants' action was arbitrary and capricious, his contention being that a conviction for draft evasion had no rational relationship to the regulated activity of boxing and was therefore irrelevant to defendants' proper exercise of their functions. Ali charged additionally, but apparently as makeweights, that defendants' action impeded his freedom of religion and constituted cruel and unusual "punishment."
In a characteristically thorough and well-considered opinion Judge Frankel dismissed Ali's complaint as thus originally drawn, pointing out that the defendants' right to deny a boxing license because of an applicant's prior felony conviction was established beyond doubt and that the claims based on freedom of religion and cruel and unusual punishment were baseless. Ali v. Division of State Athletic Commission et al., 308 F. Supp. 11 (S.D.N.Y. 1969). Noting, however, that Ali broadly claimed arbitrary discrimination in violation of his rights under the Equal Protection clause without asserting any essential supporting facts, Judge Frankel granted leave "to replead the broad allegation so that plaintiff may attempt, if he responsibly deems it possible, to supply some concrete and specific content for his charge," id. p. 15 n. 3.
On January 27, 1969, pursuant to the leave thus granted, plaintiff amended his complaint to make the following charge:
"E. Defendants have arbitrarily, capriciously and invidiously refused to renew plaintiff's professional boxer's license in violation of plaintiff's right to equal protection of the laws guaranteed by the Fourteenth Amendment. Although defendants have denied plaintiff a boxer's license on the basis of his refusal to submit to induction and consequent conviction, defendants have on other occasions licensed professional boxers who had been convicted of crimes involving moral turpitude, to wit: (1) Jeff Merritt, who currently holds a New York State boxer's license, has been convicted of robbery; (2) Joey Giardello, who was granted a New York State boxer's license on August 4, 1965, had been convicted of assault; (3) Rocco Barbella, also known as Rocky Graziano, who was licensed to box in New York State from approximately 1942 to 1947, and from May, 1949, to an unknown date, had been twice convicted of petty larceny and in addition was court martialed while serving in the United States Army and convicted of being absent without leave and of disobeying orders and sentenced to one year at hard labor and a dishonorable discharge. In addition, on October 3, 1962, defendants recognized Sonny Liston, who had been convicted of armed robbery and of assault with intent to kill, as heavyweight boxing champion in the State of New York. On information and belief, defendants have in their possession records of all professional boxers licensed in New York State which reveal other instances in which individuals convicted of a crime of moral turpitude have nonetheless been licensed to box in the State of New York."
On August 18, 1970, Judge Frankel denied defendants' motion to dismiss the complaint as thus amended.
Forced as we are to assume jurisdiction over this federalized dispute, Eisen v. Eastman, 421 F.2d 560 (2d Cir. 1969); Houghton v. Shafer, 392 U.S. 639, 88 S. Ct. 2119, 20 L. Ed. 2d 1319 (1968), even though we would prefer that Ali invoke New York state court procedures (e.g., an Article 78 proceeding) rather than risk exacerbation of our relations with the state and its agency, the Athletic Commission, we must now decide whether plaintiff has adduced sufficient evidence to demonstrate a strong likelihood that the Commission's action violated his equal protection rights and that he will suffer irreparable injury unless preliminary relief is granted. Checker Motors Corp. v. Chrysler Corp., 283 F. Supp. 876 (S.D.N.Y. 1968), aff'd, 405 F.2d 319 (2d Cir. 1969).
Following the filing of the amended complaint, Ali's counsel, exercising his rights of pretrial discovery, investigated the Commission's current files for the purpose of determining whether it had licensed other boxers who had been convicted of crimes or military offenses. The fruits of this investigation are rather astounding. The Commission's records reveal at least 244 instances in recent years where it has granted, renewed or reinstated boxing licenses to applicants who have been convicted of one or more felonies, misdemeanors or military offenses involving moral turpitude. Some 94 felons thus licensed include persons convicted for such anti-social activities as second degree murder, burglary, armed robbery, extortion, grand larceny, rape, sodomy, aggravated assault and battery, embezzlement, arson and receiving stolen property. The misdemeanor convictions, 135 in number, were for such offenses as petty larceny, possession of narcotics, attempted rape, assault and battery, fraud, impairing the morals of a minor, possession of burglar's tools, possession of dangerous weapons, carrying concealed weapons, automobile theft and promotion of gambling. The 15 military offenses include convictions or dishonorable discharges for desertion from the Armed Forces of the United States, assault upon an officer, burglary and larceny. On the basis principally of these undisputed records, plaintiff now seeks preliminary injunctive relief.
The question now before us, unlike that before Judge Frankel, is not whether the Commission may in its discretion deny a boxing license to an applicant because of his conviction of a felony or military offense. We concur in Judge Frankel's recognition of such power in the Commission. Boxing as a sport poses such serious risks of death or physical harm, brutality, corruption or "fixes," and fraud that the State of New York, in the exercise of its police power, could (and for a time did) lawfully abolish public boxing exhibitions, or it could subject professional boxing and those connected with it to thorough regulation, which it has done. By statute it created the Commission, Unconsolidated Laws § 8901, and placed boxing under its "sole discretion, management, control and jurisdiction," Unconsolidated Laws § 8906. All those connected with professional boxing exhibitions, including ticket takers, doormen, ushers, managers, announcers, and special policemen as well as boxers themselves, are required to obtain licenses from the Commission, Unconsolidated Laws § 8907. Sham and collusive exhibitions are a basis for revocation of the licenses of all those involved, Unconsolidated Laws § 8915, and the Commission is empowered to seek heavy civil penalties against those who violate the boxing law or the rules and orders of the Commission, Unconsolidated Laws § 8916.
The legislature has authorized the Commission to grant licenses to engage in public boxing exhibitions only if the "character and general fitness" of an applicant are such that his participation in boxing "will be consistent with the public interest, convenience or necessity and that the best interests of boxing * * * generally and in conformity with the purposes of this act," Unconsolidated Laws § 8912. In addition it is specifically provided that the Commission may "refuse to renew or issue a ...