Two attorneys explain significance of U.S. Supreme Court notice on NJ sports betting today
A day that could have been a major setback for proponents of sports betting at New Jersey racetracks and casinos instead turned into one in which the prospects seem more possible than ever - unusual, when the effort is to overturn or work around a 25-year federal law.
The U.S. Supreme Court on Tuesday invited the Acting Solicitor General to file a brief in the long-running New Jersey sports betting case - the only one of more than 100 cases before the court that day to receive such treatment.
The federal government previously has sided with the five sports organizations in the case, which hinges on the Constitutionality of a law passed by Congress in 1992 - the Professional and Amateur Sports Protection Act, or PASPA - designed to stop the spread of state-endorsed sports betting.
Two sports law attorneys who have followed the case for years - even attending several hearings - weigh on the significance of this notification.
"The Court’s call for the views of the Solicitor General is a step in the right direction for proponents of sports betting," said Christopher Soriano of the Duane Morris law firm in Cherry Hill, NJ. "If the Court had no interest at all in hearing the case, it would have simply denied the case – like it did with the vast majority of other cases it considered at its conference last Friday. So there is some component of the Court that has interest in further consideration.
"Often on questions involving the interpretation of a federal statute, the Court will call for the views of the Solicitor General because the Court takes very seriously the Solicitor General’s views. Because the government was not a party below (although the US Attorney submitted an amicus brief), there is no brief to the Supreme Court from the government. The Court must be interested in how the government believes its own statute should be interpreted, and since the Solicitor General’s office appears so frequently before the Supreme Court, the Solicitor General’s views will be important.
"The Solicitor General has no deadline, but its usual practice is to try to file its briefs by May so that the Court can consider the petition before the term ends at the end of June.
"The DOJ will have new leadership – a new Attorney General and Solicitor General will likely be in place soon – so it will be interesting to see if they have a different take on PASPA."
Daniel Wallach, a Fort Lauderdale, Fla.-based sports law attorney, called Tuesday's notice "the 'lightning bolt' that could shake up the sports betting legalization debate."
"After all, if this case were not “cert-worthy,” the Supreme Court would have just summarily denied the petition without even bothering to ask for the Solicitor General’s position," Wallach added.
Wallach has the technical legal angle here, and he adds this on that new administration:
“I think we may have actually underestimated Donald Trump’s impact on sports betting. Much of the recent speculation centered on how he could push for federal legislation, a process that could take up to several years to accomplish. But now, Donald Trump’s impact on the sports betting legalization debate will be immediate — and could be decisive.
"His choice of U.S. Solicitor General could end up tipping the scales in favor of a cert. grant, particularly if the new SG (whomever that may be) recommends that the issue be resolved by the Supreme Court. This is why the Solicitor General is often jokingly (and sometimes-not-so jokingly) referred to as the “Tenth Justice.” This is probably the most important brief that will be filed in the nearly five-year history of the New Jersey sports betting litigation The Solicitor General’s brief will likely include a recommendation as to whether certiorari should be granted or denied, and, ultimately, who should win the case on the merits."
This was particularly insightful:
" If Donald Trump feels strongly enough that sports betting should be legal and expanded nationally, he now has three immediate vehicles for accomplishing this:
(1) his SG appointment;
(2) his Attorney General appointment (Jeff Sessions);
(3) his Supreme Court nominee
"All three appointments could have significant ramifications for sports betting:
- the Solicitor General, in recommending that cert be granted;
- the Attorney General, in electing not to bring PASPA actions against state governments that legalize betting on sporting events not involving the five major sports leagues and the current plaintiffs in the case;
- the new [9th] SCOTUS Justice, who could be one of the four ‘cert’ votes, thereby enhancing the prospects for review, and then ultimately siding with New Jersey on the merits.
"If Donald Trump is truly ‘dialed’ in on this issue, he might just have the ability to influence the sports betting legalization debate in ways that were not even contemplated until now."
By the way, here was my look at Governor Christie's recent brief to the Supreme Court on this case .
Dennis Drazin, who operates Monmouth Park for those horsemen, tells me he is "pleased" by the news.
"It means they at least are thinking about it, and it's better than getting denied for sure," said Drazin, who is an attorney.
The Solicitor General's office several years back indicated that a partial repeal of sports betting laws was permissible - so a mere reiteration of that stance from Trump's IG would be helpful, he said.
On the "other sports" front, Drazin said he thinks the U.S. District Court's restriction on the track offering PGA, NASCAR, Mixed Martial Arts, Premier League Soccer, or other sports betting was an error that a higher court might at some point look over.
Finally, with an IG opinion coming in May, that will be too late for this Court session. So betting on the NFL at Monmouth Park isn't happening this fall, regardless, unless the league changes its mind - highly doubtful.
Meanwhile, this case so far has led to $6M in legal fees for the state. The money comes out of the coffers of the state Division of Gaming Enforcement and the Racing Commission.