Daniel Wallach Quoted in Gambling Compliance on Possibility of SCOTUS “Relisting” N.J. Sports Betting Case

Daniel Wallach Quoted in Gambling Compliance on Possibility of SCOTUS “Relisting” N.J. Sports Betting Case

By Tony Batt, GamblingCompliance

While the nine justices of the U.S. Supreme Court are scheduled to meet today to decide if they want to hear New Jersey’s appeal of a sports-betting ban, a leading state senator is predicting Atlantic City gambling businesses could be accepting bets on National Football League games as early as September.

Although his preference remains a hearing before the Supreme Court, Democratic state Senator Ray Lesniak of New Jersey continues to hone an alternative plan [2] that could expedite sports betting in the Garden State.

The Supreme Court agrees to hearings in only about 1 percent of appeals, and the court is expected to announce Monday whether New Jersey will be among that lucky minority. If a hearing is denied, Lesniak intends to immediately introduce a bill to block New Jersey from regulating sports betting and transfer that authority to the state’s casinos and racetracks. “We will be ready on September 8,” Lesniak told GamblingCompliance in a phone interview. “I am looking forward to placing the first bet at Monmouth Park on the [New York] Giants to cover the spread against the [Detroit] Lions.”

Dennis Drazin, who runs Monmouth Park for the New Jersey Thoroughbred Horsemen’s Association, said his track is prepared to begin accepting bets on NFL games as soon as Lesniak’s bill is passed by the state legislature and signed into law by Governor Chris Christie.

“We are waiting for the Supreme Court because that would be our first preference,” Drazin told GamblingCompliance.

“But what is clear from the opinion by the 3rd [U.S.] Circuit [Court of Appeals] [3] and arguments made by the Department of Justice is that another option is to repeal current laws that are on the books.”

William Hill, the British betting giant, already is accepting free-play betting [4] on NFL games at Monmouth Park, Drazin said.

Joe Asher, CEO of U.S. operations for William Hill, declined to comment. If William Hill opts not to accept real-money bets on NFL games at Monmouth Park, Drazin said the track has other facilities that will.

“We will be ready when the governor gives us the green light,” Drazin said. A call to the governor’s press office was not immediately returned. Despite his adversarial relationship with Christie, Lesniak said he expects the governor to support his bill if the Supreme Court denies New Jersey’s appeal.

“After all, he is the one who appealed to the Supreme Court, and he’s a fighter like I am,” Lesniak said.

As for his ambitious timetable for advancing his bill to the governor’s desk, Lesniak said: “The legislature will not be a problem.”

Although the New Jersey appeal is listed for discussion today by the Supreme Court, there is a “good chance” the appeal will be relisted for consideration at a later date, according to Daniel L. Wallach, a gaming attorney in Fort Lauderdale, Florida.

“The court has been engaging in this practice quite a bit lately,” Wallach said. “Being relisted is considered a positive development for a petitioner as it indicates that the court is leaning towards granting [a hearing].”

Still, the impact of New Jersey’s sports-betting case may linger even if the Supreme Court denies a hearing.

“The New Jersey sports wagering case raises important issues related to federalism and intellectual property,” said Ryan Rodenberg, an assistant professor of sports law analytics at Florida State University who has submitted a brief to the Supreme Court supporting New Jersey’s appeal. “In addition, if the Supreme Court were to grant [a hearing] after their June 19 conference, it would provide justices with a chance to address the PASPA-related concerns Justice Stevens flagged in the unanimous Greater New Orleans Broadcasting Association versus the United States case back in 1999.”

PASPA refers to the Professional and Amateur Sports Protection Act of 1992, which imposes the federal betting ban.

The opinion regarding the Greater New Orleans Broadcasting Association was a landmark ruling which opened the door for television advertising by legal gambling operations. Justice John Paul Stevens, who wrote the unanimous opinion, noted PASPA includes exemptions, “some with obscured congressional purposes.”

Among those exemptions are sports-betting carve-outs [5] for Nevada, Delaware, Montana and
Oregon.

“Federal statutes now accommodate both pro-gambling and anti-gambling segments of the national polity,” wrote Stevens, who retired in 2010.

Ironically, U.S. Solicitor General Donald Verrilli, who is opposing New Jersey’s bid for a Supreme Court hearing, represented the Greater New Orleans Broadcasting Association when it won the right to run gambling ads.

Chief Justice John Roberts, who was a practicing attorney in 1999, submitted a brief to the Supreme Court on behalf of the American Gaming Association (AGA) supporting the Greater New Orleans Broadcasting Association. Roberts once worked at the same firm as former AGA president and CEO Frank Fahrenkopf.

If the Supreme Court agrees to hear New Jersey’s appeal, Justice Ruth Bader Ginsburg [6] may deserve the credit, according to Brian Gallini, a law professor at the University of Arkansas. “I suspect it will be for the reasons Justice Ginsburg mentioned in her Shelby County versus Holder (a 2013 voting rights case) dissent wherein she mentioned PASPA, and suggested that it is one of among several federal statutes ‘that treat states disparately,’” Gallini said. Griffin Finan, a Washington, D.C. gaming attorney, also cited Ginsburg’s dissent as a reason why the Supreme Court may hear New Jersey’s appeal.

“I think that there is a strong likelihood that the Supreme Court agrees to hear this case because the issues raised in this appeal about the federal government’s ability to direct a state to implement a federal policy have far-reaching implication, well beyond sports betting,” Finan said.