Supreme Court to take up its version of the 'Thrilla in Manila': Sports betting
by Ryan Lovelace
Washington Examiner
8/21/17
Forget President Trump's travel ban: Another heavyweight fight is heading to the Supreme Court in the fall that will pit New Jersey Gov. Chris Christie against America's top sports leagues. The outcome could change sports gambling rules throughout the country.
Christie v. NCAA has the all the "markings of a sleeper blockbuster," West Virginia Solicitor General Elbert Lin, who is expected to leave public office for the private sector soon, wrote with his deputy solicitor general Thomas M. Johnson Jr. this week.
"The parties and their counsel give the case an Ali-Frazier feel," Lin and Johnson wrote at SCOTUSblog. "New Jersey Governor Chris Christie versus the National Collegiate Athletic Association and all four major professional sports leagues (the National Basketball Association, the National Football League, the National Hockey League and Major League Baseball). Former U.S. Solicitor General Ted Olson versus his successor (and his principal deputy) Paul Clement. For Supreme Court junkies, you don't get much closer to the Thrilla in Manila."
Atlantic City, a longtime gambling hub on the East Coast, has fallen on hard times, and New Jersey developed a renewed interest in legalizing sports betting as a way to stave off the city's financial woes. Shuttered casinos and declining revenues have made allies of the Garden State's governor and its gamblers.
At issue in Christie v. NCAA and New Jersey Thoroughbred Horsemen's Association v. NCAA, which the Supreme Court consolidated into one case, is a federal law that prohibits certain forms of sports gambling. The horsemen's association owns a racetrack that relies on sports betting to remain financially viable.
The Professional and Amateur Sports Protection Act, or PASPA, passed in 1992 made it illegal for states to "operate ... or authorize ... a lottery, sweepstakes or other betting, gambling, or wagering scheme based, directly or indirectly" on a competitive game featuring amateur or professional athletes.
Despite the federal law, New Jersey voters approved amending the state's constitution in 2011 to allow the state legislature to legalize sports betting. New Jersey lawmakers legalized sports betting in 2012, but subsequently lost in federal courts to challenges from the NCAA and America's top four professional sports leagues. After lower courts rejected New Jersey's arguments, the Supreme Court declined to review the case.
But New Jersey didn't give up. The state legislature passed a law repealing certain prohibitions on sports gambling, and the Supreme Court decided to take action after the litigation made its way through lower courts, after the acting U.S. solicitor general advocated that the court reject hearing the case.
Christie and the horsemen's association have argued that the federal law is a "dramatic, unprecedented" takeover of New Jersey's authority that is in direct violation of the 10th Amendment protection of states' rights. West Virginia's solicitor general wrote this week promoting a point of view similar to Christie's as the Supreme Court prepares to hear the case.
"Congress can no more mandate that states not repeal or modify certain existing gambling laws than it can dictate to states how they must regulate radioactive waste or obligate state law-enforcement officers to conduct background checks," Lin and Johnson wrote. "[Congress] cannot simply commandeer state law to carry out federal policy the way that [the gambling law] does."
West Virginia Attorney General Patrick Morrisey, the former chairman of the Republican Attorneys General Association who is running for the U.S. Senate, previously filed a brief to the Supreme Court supporting Christie. The American Gaming Association, which advocates for a legal and regulated sports betting marketplace in the U.S., told the Washington Examiner it's in a good position to advance its agenda legislatively and through the courts. Regardless of how the high court resolves Christie v. NCAA, the top organization representing the casino industry thinks there's a growing sense that legalized sports gambling could come soon.
Stacy Papadopoulos, American Gaming Association general counsel and senior vice president, wrote this week at SCOTUSblog that the federal law is a "failure" that created an unregulated "black market."
"The harm of such federal overreach is more than purely structural," Papadopoulos wrote. "Preserving a state's autonomy to enact, enforce, modify, and repeal its own laws as it sees fit protects individual rights and promotes democratic accountability. PASPA's effect on New Jersey's long-running effort to legalize and regulate sports betting is a prime example of what happens when the people who are required to enforce a law are prohibited from changing that law to reflect new circumstances or evolving public opinion."
Papadopoulos added that the federal law "fueled a thriving black market" that included an "estimated 97 percent" of all bets on the Super Bowl and NCAA men's basketball tournament, when Americans bet a total of about $15 billion combined.
Others view the sporting leagues' and federal government's position as legitimate. Michael Fagan, Washington University Law adjunct professor who coordinates the Predatory Gambling Liability Project, wrote for a SCOTUSblog symposium on Christie v. NCAA that Congress' law banning sports betting is appropriate.
"PASPA's prohibitions plainly do not require the legislating state either to act affirmatively or to expend resources or reputation by regulating a federal program," Fagan wrote. "Unless at least five members of the Supreme Court seek to markedly expand or modify the anti-commandeering doctrine, it is difficult to see why the court granted certiorari in this case, in which the primary issues are clearly political, not constitutional."
However the high court chooses to resolve the dispute in Christie v. NCAA, it looks likely to have a lasting impact outside of Atlantic City's casinos.
"The justices often grant review to resolve differences in opinion among the federal courts of appeals," noted SCOTUSblog's Amy Howe this week. "However (as the leagues emphasized in urging the court to stay out of the dispute), there is no such division in this case, and — when asked by the Supreme Court to weigh in — the federal government (whose opinions the justices take seriously) recommended that review be denied. The fact that the Supreme Court nonetheless agreed to take on the case suggests that at least several justices regard the 10th Amendment issue as an important one."
The Supreme Court has not set a date for oral arguments, but the case could prove to be one of the most consequential in the coming term.
by Ryan Lovelace
Washington Examiner
8/21/17
Forget President Trump's travel ban: Another heavyweight fight is heading to the Supreme Court in the fall that will pit New Jersey Gov. Chris Christie against America's top sports leagues. The outcome could change sports gambling rules throughout the country.
Christie v. NCAA has the all the "markings of a sleeper blockbuster," West Virginia Solicitor General Elbert Lin, who is expected to leave public office for the private sector soon, wrote with his deputy solicitor general Thomas M. Johnson Jr. this week.
"The parties and their counsel give the case an Ali-Frazier feel," Lin and Johnson wrote at SCOTUSblog. "New Jersey Governor Chris Christie versus the National Collegiate Athletic Association and all four major professional sports leagues (the National Basketball Association, the National Football League, the National Hockey League and Major League Baseball). Former U.S. Solicitor General Ted Olson versus his successor (and his principal deputy) Paul Clement. For Supreme Court junkies, you don't get much closer to the Thrilla in Manila."
Atlantic City, a longtime gambling hub on the East Coast, has fallen on hard times, and New Jersey developed a renewed interest in legalizing sports betting as a way to stave off the city's financial woes. Shuttered casinos and declining revenues have made allies of the Garden State's governor and its gamblers.
At issue in Christie v. NCAA and New Jersey Thoroughbred Horsemen's Association v. NCAA, which the Supreme Court consolidated into one case, is a federal law that prohibits certain forms of sports gambling. The horsemen's association owns a racetrack that relies on sports betting to remain financially viable.
The Professional and Amateur Sports Protection Act, or PASPA, passed in 1992 made it illegal for states to "operate ... or authorize ... a lottery, sweepstakes or other betting, gambling, or wagering scheme based, directly or indirectly" on a competitive game featuring amateur or professional athletes.
Despite the federal law, New Jersey voters approved amending the state's constitution in 2011 to allow the state legislature to legalize sports betting. New Jersey lawmakers legalized sports betting in 2012, but subsequently lost in federal courts to challenges from the NCAA and America's top four professional sports leagues. After lower courts rejected New Jersey's arguments, the Supreme Court declined to review the case.
But New Jersey didn't give up. The state legislature passed a law repealing certain prohibitions on sports gambling, and the Supreme Court decided to take action after the litigation made its way through lower courts, after the acting U.S. solicitor general advocated that the court reject hearing the case.
Christie and the horsemen's association have argued that the federal law is a "dramatic, unprecedented" takeover of New Jersey's authority that is in direct violation of the 10th Amendment protection of states' rights. West Virginia's solicitor general wrote this week promoting a point of view similar to Christie's as the Supreme Court prepares to hear the case.
"Congress can no more mandate that states not repeal or modify certain existing gambling laws than it can dictate to states how they must regulate radioactive waste or obligate state law-enforcement officers to conduct background checks," Lin and Johnson wrote. "[Congress] cannot simply commandeer state law to carry out federal policy the way that [the gambling law] does."
West Virginia Attorney General Patrick Morrisey, the former chairman of the Republican Attorneys General Association who is running for the U.S. Senate, previously filed a brief to the Supreme Court supporting Christie. The American Gaming Association, which advocates for a legal and regulated sports betting marketplace in the U.S., told the Washington Examiner it's in a good position to advance its agenda legislatively and through the courts. Regardless of how the high court resolves Christie v. NCAA, the top organization representing the casino industry thinks there's a growing sense that legalized sports gambling could come soon.
Stacy Papadopoulos, American Gaming Association general counsel and senior vice president, wrote this week at SCOTUSblog that the federal law is a "failure" that created an unregulated "black market."
"The harm of such federal overreach is more than purely structural," Papadopoulos wrote. "Preserving a state's autonomy to enact, enforce, modify, and repeal its own laws as it sees fit protects individual rights and promotes democratic accountability. PASPA's effect on New Jersey's long-running effort to legalize and regulate sports betting is a prime example of what happens when the people who are required to enforce a law are prohibited from changing that law to reflect new circumstances or evolving public opinion."
Papadopoulos added that the federal law "fueled a thriving black market" that included an "estimated 97 percent" of all bets on the Super Bowl and NCAA men's basketball tournament, when Americans bet a total of about $15 billion combined.
Others view the sporting leagues' and federal government's position as legitimate. Michael Fagan, Washington University Law adjunct professor who coordinates the Predatory Gambling Liability Project, wrote for a SCOTUSblog symposium on Christie v. NCAA that Congress' law banning sports betting is appropriate.
"PASPA's prohibitions plainly do not require the legislating state either to act affirmatively or to expend resources or reputation by regulating a federal program," Fagan wrote. "Unless at least five members of the Supreme Court seek to markedly expand or modify the anti-commandeering doctrine, it is difficult to see why the court granted certiorari in this case, in which the primary issues are clearly political, not constitutional."
However the high court chooses to resolve the dispute in Christie v. NCAA, it looks likely to have a lasting impact outside of Atlantic City's casinos.
"The justices often grant review to resolve differences in opinion among the federal courts of appeals," noted SCOTUSblog's Amy Howe this week. "However (as the leagues emphasized in urging the court to stay out of the dispute), there is no such division in this case, and — when asked by the Supreme Court to weigh in — the federal government (whose opinions the justices take seriously) recommended that review be denied. The fact that the Supreme Court nonetheless agreed to take on the case suggests that at least several justices regard the 10th Amendment issue as an important one."
The Supreme Court has not set a date for oral arguments, but the case could prove to be one of the most consequential in the coming term.
