Handicapping The Sports Betting Rehearing En Banc - Header Image - Franklin Law Group

Handicapping The Sports Betting Rehearing En Banc

The following article is an excerpt from The Sports Esquires: Putting Sports on Trial written by our own Justin N. Fielkow.

Last week, some of the most distinguished lawyers of our generation gathered in a cramped Philadelphia federal courthouse for a hearing that could have a profound effect on the timeline to bring legal sports betting to the whole of the United States. While the results of the hearing remain to be determined, it appears – again – that most Americans will have to wait a bit longer to place a wager on their favorite club.

Background

In order to follow the complex and nuanced legal arguments raised by super lawyers Ted Olson and Paul Clement in front of 12 federal judges of the U.S. Third Circuit Court of Appeals, it’s critical to understand the procedural history regarding New Jersey’s recent attempts to legalize sports betting.

In 2012, New Jersey passed a law that permitted commercialized sports gambling at casinos and racetracks across the Garden State. The passage of the law was largely motivated by an effort to boost the state’s struggling economy through increased tax revenues and tourism.[i] New Jersey Governor Chris Christie’s efforts were stymied, however, by the NCAA and all four major U.S.-based professional sports leagues – the NFL, NBA, MLB, and NHL (the “Leagues”) – who, in August 2012, filed a lawsuit seeking to prevent the law from taking effect. According to the Leagues, New Jersey’s legislation violated a 1992 federal statute, the Professional and Amateur Sports Protection Act (“PASPA”), which restricted certain forms of state-sponsored sports gambling to a handful of states that were grandfathered in under the law.[ii] Christie, in turn, challenged that PASPA was unconstitutional, with arguments grounded in Tenth Amendment and Equal Sovereignty principles.

Hearing En Banc

Seemingly left for dead, New Jersey was thrown a lifeline when the Third Circuit granted the state’s request for a hearing en banc – a rare review in which all or most of the sitting judges of the Third Circuit, not just the three judges that heard the initial case, weigh in. The hearing gave the full court the opportunity to resolve some of the apparent inconsistencies from the results of Christie I and Christie II.

At issue first was whether New Jersey’s 2014 partial repeal was sufficient to circumvent PASPA’s prohibitions on authorizing sports wagering. Olson, representing the state, ostensibly argued that the law that Christie signed in 2014 took the state out of the regulation business. He described New Jersey as “neutral” about whether Atlantic City casinos or state racetracks offer sports betting.

Outlook

It will likely be months until the Third Circuit issues its opinion, but like a slugger in baseball, Christie appears bound by one of three true outcomes in his most recent efforts to legalize sports betting in the state of New Jersey.

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