The Leagues/PASPA's Side of the Case
Despite urging from the US Solicitor General and the leagues (both professional and collegiate), at least four of the nine Supreme Court Justices believe that there is merit behind New Jersey’s claim that PASPA is unconstitutional. Because of this, the Leagues must go to court and make arguments as to why legal sports betting should not be allowed within the United States. Below we take a look at the timeline for the case, as well as potential arguments that might be made and backlash that proponents of PASPA will likely face because New Jersey’s petition was granted.
The Timeline
SCOTUS allows for the petitioners to put forth their arguments first, so the NCAA and professional leagues will be able to see the “merits” of the case as well as the amici arguments before they even need to file their own brief. The leagues will have until September 14th before they have to submit written arguments for their side of the case. Oral arguments haven’t been given a date yet, but when they are, the leagues will have 30 minutes to argue before the Justices. They need to convince at least 5 of the 9 justices that they are in the right for PASPA to remain upheld. A decision is expected in 2018.
The Argument For Upholding PASPA
Since 2011, not a single court has been able to find fault with the constitutionality of the federal ban PASPA. This is because the US federal government has the ability to lay out preventative measures, like legal drinking age and other health initiatives, in order to care for the overall well-being of its people.
Under the Commerce Clause of the US Constitution, the federal government also has the right to control domestic operations of commerce. This is where the issues of federalism come into play. New Jersey argues that the federal government doesn’t have the right to dictate what states do regarding gambling and that it should be an issue decided on a state-by-state basis. The federal government has identified gambling as a source of domestic commerce, though, and due to the overwhelming amount of interactions that would occur between states, they have proclaimed that they have the rights to enact federal regulations over it.
The Commerce Clause is a big reason behind a lot of overarching federal laws. It is also a big reason why New Jersey has been overruled at every level of court. Expect this clause to play a big role in the argument for upholding PASPA.
The second argument that New Jersey will bring up is that the states have been treated unfairly under PASPA, which certain states being shown favor over others. This has also been addressed by the lower courts. They each have ruled that the federal ban would have caused too much of a disruption to the states that had already legalized sports betting. Because of this, there is no unfair monopoly being created.
Finally, New Jersey argues that PASPA interferes with state sovereignty by enforcing a federal ban. But the problem with that is that PASPA doesn’t require New Jersey to take any action. It just prevents them from taking one, which is within federal jurisdiction. So because it does not force New Jersey’s hand in enforcing any laws, PASPA is not commandeering the state nor is it interfering with state sovereignty.
PASPA’s main defense seems to be based more on feeling, however, rather than legality. The law was enacted because Senator Bill Bradley felt that players would be treated unfairly if widespread sports gambling took over the country. “I think of athletes as persons. I don’t like them to be turned into roulette chips.”
In 2012, the chief complaint from the NFL in the Christie I case read: “Gambling on amateur and professional sports threatens the integrity of those sports and is fundamentally at odds with the principle - essential to the success of Plaintiffs - that the outcomes of collegiate and professional athletic contests must be determined, and must be perceived by the public as being determined, solely on the basis of honest athletic competition. Plaintiffs have consistently opposed legalized sports gambling in other states and at the federal level because it undermines the public's faith and confidence in the character of amateur and professional team sports.” So basically, it’s all about what it looks like.
Even today, their main reason for upholding the sports betting ban for so long, despite an overwhelming three-fourths majority in favor of legalization, has been their belief that it would ruin the integrity of the game. So they’ll probably make appeals based on feeling, rather than an actual basis in the law, as well. There’s nothing wrong with an emotional appeal, don’t get me wrong, but New Jersey will be able to fight it with the argument that over 60% of Americans are in favor of legal gambling in the USA.
The Possible Backlash That Leagues Will Be Facing From This Case
Even if PASPA is upheld by SCOTUS, there will still be backlash for the Leagues to deal with. This case has kicked doors down all over the country, and states like Pennsylvania, Michigan, New York, West Virginia, and others will be watching closely. There is also the very real possibility that PASPA is ruled unconstitutional. A look at three very real situations that PASPA and the professional and collegiate sports leagues might have to deal with because of SCOTUS’s decision to grant New Jersey’s petition.
First and foremost, the fight for legal sports betting will not end here. Even if PASPA is ruled constitutional and New Jersey loses, other states will have a blueprint to work from, building stronger and more viable cases against the federal sports betting ban until it finally crumbles (or Congress smartens up and repeals the stupid thing). New Jersey’s day in court signifies the beginning of a much longer legal road for the Leagues. Because if New Jersey is knocked down, there are at least three states waiting to take its place in court. Each state can take turns fighting for legal sports betting. The Leagues won’t catch a break.
Another potential backlash from this case is the strength of the federal ban itself. While PASPA has never specifically been addressed by the highest court in the nation, it has been subjected to what can only be called “shade”. In 1999 a case regarding the advertisements of casino gambling prompted Justice John Paul Stevens to write that “Congress should generally defer to the states” when it comes to gambling. In his statement, Stevens questioned the law’s viability, as it “includes a variety of exemptions, some with obscured congressional purposes”.
More recently, Justice Ruth Bader Ginsburg called out PASPA as a specific example of federal statutes that give preferential treatment to some states over others when SCOTUS was reviewing the Shelby County case on state sovereignty. She also asked about the viability of such statutes under ”the court’s expansion of equal sovereignty’s sway.” Such speculative remarks in the past coupled with a closer inspection of the law this upcoming fall might prove deadly for PASPA, even if they survive the Supreme Court this go around.
And finally, while New Jersey has lost at every legal turn they’ve taken, the Leagues will still need to have a contingency plan in place if SCOTUS rules in favor of the state. While NFL and NHL are still opposed to regulated sports betting, NBA, MLB, and MLS are in favor, they just want a federally regulated system instead of a state by state system. So what we might see is a push for Congress to get legislation out before the states have time to do anything on their own. Or, we might see a complete 180 from the leagues, and have them lobby on a state by state basis for “common sense” legislation. Regardless of how they handle the situation after the fact, the leagues need to be prepared for a situation where the courts take the power out of their hands.
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