Supporters of New Jersey’s ongoing effort to repeal the federal ban on sports betting were recently dealt a mixed bag of sorts by the United States Supreme Court.
On Tuesday, January 17 the Court declined to rule on New Jersey’s latest appeal, which seeks to overturn the Professional and Amateur Sports Protection Act (PAPSA) of 1992 on grounds of constitutionality.
But rather than decline New Jersey’s appeal outright, the Court elected to invite acting Solicitor General Ian Gershengorn to file a brief “expressing the views of the United States” on a pair of PAPSA challenges which have been consolidated to form a single case.
Those challenges, Christie v. NCAA and N.J. Thoroughbred Horsemen v. NCAA, are the result of several years’ effort on the part of New Jersey to create its own regulated sports betting industry within the state.
Per the view of New Jersey’s attorney general Christopher Porrino, and sitting governor Chris Christie, the terms of PAPSA which preclude states from repealing or modifying their own laws to permit sports betting violate the Tenth Amendment to the Constitution. The text of the Tenth Amendment reserves any powers not specifically delegated to the federal government within the Constitution, or prohibited to individual states, as so-called “states’ rights.”
To that end, New Jersey put the issue of legalized sports betting to voters via public referendum in 2011. When two-thirds of the vote sided with permitting sports betting – and taxing the industry to support statewide initiatives – Gov. Christie enacted sports betting legislation in 2012, and amended the law in 2014. Under the provision, bettors in New Jersey would be able to legally wager on games, matches, races, and other sporting events through brick and mortar casinos and racetracks.
The state law was immediately opposed by the National Collegiate Athletic Association (NCAA), along with the four major North American professional sports leagues (NFL, NBA, MLB, NHL). The resulting spate of lawsuits eventually reached the U.S. Court of Appeals for the Third Circuit, which rejected New Jersey’s PAPSA rollback on August 9.
That decision left New Jersey with only the Supreme Court as a source to seek recourse, prompting the recent invitation to the acting Solicitor General.
And while the decision appears to be a blow to New Jersey’s case, gaming and sports law attorney Daniel Wallach told NJ.com that it should really be viewed as a success for the state.
According to Wallach, the fact that an incoming Trump administration will be installing their own Solicitor General shortly bodes well for a potential reversal of longstanding federal stances on sports betting:
“(Trump has the) ability to directly and immediately impact the future of sports betting in the United States in a way that was not fully contemplated a few days ago. He doesn’t need Congress to do this now.”
Ronald Riccio, a lawyer with the firm representing the New Jersey Thoroughbred Horsemen’s Association, expressed similar optimism after the Court’s decision when speaking to the New Jersey Law Journal. According to Riccio, requests for input from the Solicitor General are typically viewed as paving the way for the Court to grant a writ of certiorari in a particular case:
“You can never predict these things but the fact that the court asked for the solicitor general’s input means the court is taking the cert petition seriously. It makes us a bit more optimistic about the chances of cert being granted.”