Legislative Tracker: Sports Betting
PASPA gives standing to sports leagues and organizations — in addition to the Department of Justice — to challenge laws that they believe run counter to the law. So far those leagues have won every step of the way in the federal court system. After initially losing in front a panel of three Third Circuit justices, New Jersey requested an en banc hearing of all the justices on the circuit.
It was a long shot that was granted. Like it did the first time around, the state again appealed to the Supreme Court. That, again, appeared to be a longshot. That brings us to oral arguments, which take place at 10 a. Eastern on Monday, Dec. Lawyers for New Jersey and the sports leagues will present their arguments over the course of an hour.
Ten minutes of the half hour allotted to the NCAA et al will go to the Solicitor General, which requested the time and sides with the leagues. But oral arguments also provide a window into what justices are thinking when they ask questions of counsel for either side. Legal Sports Report will be present at oral arguments and will report immediately afterward. The entire range of potential outcomes is a fairly long list.
But most of them boil down to the court ruling one of two ways on the top level — that PASPA is either constitutional or not. This is just a partial listing of outcomes. There are a variety of other ways the court could find with perhaps less likelihood of occurring. What the court will ultimately find in the case is a matter of speculation — or handicapping, to borrow a term from gambling. After all, only a small percentage of appeals are taken by the court.
Most legal analysts seem to think New Jersey coming out of the case being able to offer sports betting is about a coin flip to a small favorite. Major American sports leagues -- including the NFL, NBA and the MLB -- offered cautious reaction to the news, saying they would take steps to protect the integrity of the games and called for regulatory framework. Justice Ruth Bader Ginsburg dissented, and joined by Justice Sonia Sotomayor and Justice Stephen Breyer in part, criticized the majority for wielding an ax to "cut down" down the entire statute instead of "using a scalpel to trim the statute.
The Professional and Amateur Sports Protection Act made it unlawful for a state to "sponsor, operate, advertise, promote, license, or authorize by law" sports wagering.
Nevada was exempted from the law, and three other states -- Montana, Delaware, and Oregon -- that had already enacted sports lotteries were allowed to continue to do so.
The law was passed out of concern that sports gambling might change the nature of sporting events from wholesome entertainment to a device for gambling. At the time, New Jersey could have allowed sports wagering if it had acted within a year of the law's effective date, but chose not to.
However, the state later changed its mind and passed a law to allow sports betting. Sports leagues challenged the law citing the law, and they won in federal court. New Jersey then tried to pass a new law in that simply repealed key provisions of its prohibitions on sports wagering to the extent they applied at racetracks and casinos. Again, the courts ruled against the state, prompting Christie to take the case to the Supreme Court. New Jersey saw the case as a states' right issue and argued that the law is unconstitutional because it violates the so called "anti commandeering" principle of the 10th Amendment that bars Congress from ordering states to participate in a federal regulatory scheme.
Christie celebrated the ruling in a tweet. West Virginia and 17 other states, and the governors of three more, sided with New Jersey in the case.
They said in court briefs that if the high court sided with the sporting leagues, "Congress could compel the entire machinery of state government -- legislatures, executives and courts -- to maintain and enforce repealed state laws at the behest of the federal government. Lawyers for the leagues responded that the federal law does not run afoul of the Constitution because it doesn't force the states to take any action or become a part of any federal regulatory scheme.
It simply prohibits sports betting in the states. They argued that a state law legalizing sports betting is preempted by existing federal law.
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