Court's ruling on New Jersey sports betting is anybody’s guess

Dec 5, 2017 3:11 AM

With the United States Supreme Court set to hear oral arguments Monday (yesterday) on New Jersey’s efforts to legalize sports wagering, Sports Illustrated, USA Today, Investor’s Business Daily, The Chicago Tribune and the Associated Press are just a few of the leading media outlets speculating in major articles on the outcome of the case officially known as Christie v. NCAA.

Opinions on just what the high court might do are varied and run the gamut of possibilities.

A ruling sometime this spring is forecast in New Jersey’s effort to overturn the Professional and Amateur Sports Protection Act of 1992, known as PASPA. The law bans sports wagering nationally except for a few states with limited wagering and Nevada, the only state with legal single-team betting allowed.

Some legal minds think the court could rule the current law constitutional and the status quo would remain. The court could, as New Jersey is contending, along with numerous other states filing “friend of the court” briefs, rule that sports wagering is, indeed, a states’ rights issue and each state has the ability to allow or disallow the practice.

One result might be a decision that is “New Jersey specific,” allowing only that state to implement sports wagering.

The court might also decide sports wagering comes under federal purview and federal regulations must be established. The vast Indian gaming industry will have to have federal guidelines if and when sports wagering is allowed because they operate on tribal land and have sovereign immunity. The ability of tribes to act independently of many state and local laws but not of federal law rests on the concept of tribal immunity. That’s why smoking, for instance, can be allowed in tribal casinos in states where laws banning smoking in public places are on the books.

Federal laws that might change the way sports wagering is conducted in Nevada is the more likely of at least two results that could drastically alter the status quo in the Silver State.

Another outcome, receiving little attention currently, is the “nuclear option” in which sports betting would be ruled illegal everywhere, including Nevada, in an effort to make sure all states are treated the same. It’s hard to imagine that, however. That would wipe out hundreds, even thousands of jobs and kill an entire industry.

However, I’ve heard people who have a good opinion in these matters speculate this is certainly possible.

Prognosticators’ various views of the future of sports wagering everywhere, including Nevada, have now been further clouded by news last week that the Department of Justice (DOJ) Deputy Attorney General Rod Rosenstein is in receipt of a joint letter from Senators Lindsey Graham (D-South Carolina) and Dianne Feinstein (D-California) that asks for a review of that agency’s 2011 opinion on the Wire Act, which gave states the right to decide their own online gambling laws.

It’s only been six years since the DOJ’s Office of Legal Counsel gave its interpretation of the longstanding Wire Act banning the interstate transmissions of wire communications for sporting events and contests, but not necessarily other gaming activities. Horseracing and poker were exempted in the interpretation.

Graham, as noted by the major gaming website, has been the Senate’s most vigorous advocate of overturning that opinion. He’s unsuccessfully introduced the Restoration of America’s Wire Act (RAWA) twice (in 2015, and again in 2016). Some observers believe he’s acting at the behest of billionaire Las Vegas Sands leader Sheldon Adelson, a fervent opponent of online wagering and a big-bucks contributor to people and causes he believes in.

It was once thought in this corner that the high court might allow sports betting nationally and subsequently the DOJ could reinterpret the Wire Act in an effort to roll back just online wagering.

With the combination of big business’ recent involvement in funding sports wagering and sports information companies and the desire of many states to tap into the tax revenue sports wagering might produce, that outcome (legal sports betting but no online wagering of any kind) now seems farfetched.

Also factor in the large number of individual-state leaders who don’t care about sports wagering, but seek to establish each state’s ability to make its own laws.

All of the above has created a puzzle that, right now, is too hard for this observer to decipher. The advice is not to adhere too fiercely to any prediction when it comes to the Supreme Court’s upcoming decision.

Someone is going to be right and someone wrong. The thinking here is to expect the unexpected.