56°F
weather icon Clear

Supreme Court hints it could side with state on sports betting

Updated December 4, 2017 - 6:42 pm

WASHINGTON — The U.S. Supreme Court heard arguments Monday over a federal ban on sports wagering and a majority of justices seemed to be moving toward a ruling that could open the doors for gambling on professional and college games in states nationwide.

The nine justices on the high court appeared split by their questions to lawyers in the case, but a majority seemed skeptical of a federal “commandeering” of state policy on sports wagering.

“That’s what this is about, telling states what to do,” said Justice Stephen Breyer, who appeared sympathetic to the argument of federal overreach.

Following arguments, sports legal experts said that they expected the court would rule in favor of New Jersey in its bid to allow sports betting at casinos and horse tracks.

Justices could also issue a partial ruling that would allow sports gaming in New Jersey without addressing the state’s claim that the law is unconstitutional.

 

New Jersey has been fighting for several years to overturn the the 1992 congressional ban on sports wagering, the Professional and Amateur Sports Protection Act, known as PASPA. Four states with sports gaming were grandfathered by PASPA and not included in the ban: Nevada, Delaware, Montana and Oregon.

In 2012, with voters’ support, New Jersey lawmakers authorized sports betting, directly challenging the federal law. The four major professional sports leagues and the NCAA sued, and the state lost in court. In 2014, New Jersey tried a different tactic by repealing laws prohibiting sports gambling at casinos and racetracks. It lost again in court.

Since PASPA passed, New Jersey has challenged the ban six separate times in lower courts, up to the 3rd Circuit Court of Appeals, which affirmed the rulings.

Feds side with NCAA

But the Supreme Court agreed to hear the case on New Jersey’s request and asked the federal government to weigh in. The government sided with the NCAA. A ruling on the case is expected next summer.

New Jersey’s lawyer, Ted Olsen, the former U.S. solicitor general, argued the ban is unconstitutional and violates a doctrine that prohibits the federal government from forcing states to enact policy.

Olson told the court that since the federal government has not regulated the activity, there is nothing that allows it to preempt a state regulation.

The NCAA and four professional leagues, the National Football League, the National Hockey League, the National Basketball Association and Major League Baseball, have won in lower courts on arguments that the ban is lawful. And the leagues argue that overturning it would result in reputational damage.

New Jersey and sports legal experts said the major leagues’ charge of damage became moot when they allowed NHL and NFL franchises in Nevada, where sports books and gaming on college and pro sporting events is legal.

Justice Anthony Kennedy peppered Paul Clement, a former U.S. solicitor general and lawyer for the NCAA and the leagues, about federal laws that appeared to “commandeer” states to act on the federal government’s behalf.

Clement said the federal government, in laws it passed, did not want states operating gambling schemes over concern of interstate commerce.

But Clement’s arguments came under scrutiny from Kennedy, Breyer, Chief Justice John Roberts, and Justices Samuel Alito and Neil Gorsuch. Justice Clarence Thomas, a conservative member on the court, did not speak.

Justices Sonia Sotomayor, Elena Kagen and Ruth Bader Ginsburg quizzed Olson on federal laws on sports wagering and a New Jersey law passed by the state legislature.

Sotomayor said there was nothing in federal law that appeared unconstitutional.

AGA supports end to ban

The American Gaming Association, which represents casinos, has long argued that the ban on sports wagering in states has created a $150 billion illegal market.

The AGA supports New Jersey in the case and said sports wagering would be regulated, taxed, or provide consumer protections, like the system in Nevada.

Geoff Freeman, AGA president, interpreted the high court’s questions in the oral arguments as a positive for “millions of Americans seeking to legally wager on sporting events.”

Freeman would not predict the Supreme Court’s intentions, but he did predict the demise of PASPA.

“I heard a court that is suspicious of the federal government’s overreach in this case,” Freeman said.

David Wallach, sports legal expert, said the high court clearly questioned the NCAA’s case. He said he could see a 6-3 ruling in favor of New Jersey, even if the court stays away from the constitutionality of the law.

Nevada’s gaming industry supports New Jersey and as many as 20 other states that have asked the Supreme Court to throw out the sports wagering law.

Casinos based in Las Vegas would be well positioned to expand operations in other states if the court rules in favor of New Jersey.

“Las Vegas is home to the world’s premier gaming properties, experts, companies and regulators,” said Rep. Dina Titus, D-Nev.

“Those of us who have been involved with the industry know that a regulated market is better than an illegal one,” she said. “Change is long overdue.”

Titus said 13 states have passed laws on gaming in anticipation of a Supreme Court ruling that would make sports wagering legal.

She called Monday for a hearing in the House Commerce and Energy Committee to hear from legal and regulatory experts on how to best establish systems with protection.

A ruling by the Supreme Court to uphold New Jersey’s challenge that the law is unconstitutional could have an impact on states on other regulations, like those on medical marijuana, immigration and gun control and occupational licensing, said Elbert Lin, a former West Virginia solicitor general who filed a brief supporting New Jersey.

Contact Gary Martin at gmartin@reviewjournal.com or 202-662-7390. Follow @garymartindc on Twitter.

Don't miss the big stories. Like us on Facebook.
Sports Betting Spotlight Videos
Politics Videos
Trump administration OKs new water rule - VIDEO
Environmental Protection Agency Administrator Andrew Wheeler signed a new rule Thursday replacing a 2015 definition of “navigable waters” created in the Obama administration that farmers, developers and others found overly restrictive. (James Schaeffer / Las Vegas Review-Journal)
Yvanna Cancela Speaks on Supporting Biden - Video
The RJ Politics podcast crew sits down with Nevada State Senator Yvanna Cancela to discuss why she is supporting former Vice President Joe Biden in the 2020 presidential race.
RJ Politics Podcast with Deval Patrick - VIDEO
2020 Presidential Candidate Deval Patrick joins hosts Rory Appleton and Steve Sebelius on the RJ Politics Podcast.
Tom Steyer on Donald Trump and the economy - Video
Tom Steyer joins the RJ Politics podcast to talk about his campaign presence in Nevada and how he plans to take Trump on when talking about the economy. (Las Vegas Review-Journal)
Las Vegas City Council Votes On Homeless Ordinance - Video
The Las Vegas City Council on Wednesday will discuss expanding on a controversial camping and sleeping ban aimed at deterring the homeless from bivouacking on city streets to include hours when public sidewalks are being cleaned.
Biden meets with Vegas Latino community - VIDEO
Presidential candidate Joe Biden met with members of the Latino community at Rancho High School. (James Schaeffer / Las Vegas Review-Journal)
Henderson, other Nevada cities consent to refugee resettlement - VIDEO
Henderson will continue to welcome refugees for resettlement, according to a December letter from Mayor Debra March. (James Schaeffer / Las Vegas Review-Journal)
Pete Buttigieg Speaks At Black Empowerment Event - Video
Pete Buttigieg speaks at a black empowerment event to talk about his Douglass plan.
Joe Biden at the national hospitality workers union.
Democratic presidential candidate, former Vice President Joe Biden speaks to members of the national hospitality workers union during UNITE HERE's town hall on Wednesday, Dec. 11, 2019 at Culinary Union Hall in Las Vegas. @bizutesfaye
Elizabeth Warren at Culinary Union
Elizabeth Warren speaks at a Culinary Union town hall in Las Vegas on Dec. 9, 2019.
Secretary of Education visits Henderson school
Secretary of Education Betsy DeVos visited students at Pinecrest Academy in Henderson to talk about college planning on Dec. 4, 2019. (Erik Verduzco/Las Vegas Review-Journal)
Trump dropped from Terry Fator’s show on Las Vegas Strip - VIDEO
Fator has edited out one prominent figure: President Donald Trump, a focal point of Fator’s regular stage show and also Christmas show over the past 3½ years. The Trump puppet, with his pop-up hairpiece, has been sidelined from both shows until further notice. (James Schaeffer / Las Vegas Review-Journal)
Accused murder mastermind Frank LaPena is granted a pardon - VIDEO
A onetime Las Vegas casino bell captain who spent 25 years in prison as the accused mastermind in a notorious 1974 contract murder won his last legal battle for freedom Wednesday when the state Pardons Board granted him a conditional pardon restoring all his civil rights. (James Schaeffer / Las Vegas Review-Journal)
The Middle: Nonpartisan voters and the 2020 election
How will the growing segment of nonpartisan or independent voters — those who have not registered with either political party, or who have left partisan politics behind — vote in 2020?
THE LATEST
Sharp bettors pounce on Super Bowl prop bets

Bettors waited in line Thursday at the Westgate to place up to two wagers at a time at a limit of $2,000 each. Most of them then would go to the back of the line and wait their turn again.