Around $4.7 billion will change hands during and after Sunday’s Super Bowl, according to American Gaming Association estimates released Tuesday, and — like always — the vast majority of that money (about $4.5 billion) will flow, unregulated and untaxed, through offshore sportsbooks and old-fashioned bookies.
This could be one of the last Super Bowls that sends a tidal wave of cash flowing through America’s thriving sports betting black market, though, depending in part on what one of President Trump’s lower-profile federal appointees thinks about the issue.
Trump’s new Solicitor General, who has not been appointed yet, will get the chance to weigh in on a years-long legal battle over New Jersey’s quest for lawful sports betting that has landed at the doorstep of the United States Supreme Court.
New Jersey is challenging the constitutionality of the Professional and Amateur Sports Protection Act of 1992, commonly called PASPA, which effectively confined lawful sports betting to states where the practice was already legal. Since 2012, New Jersey lawmakers have tried twice to legalize sports betting, with the aim of helping ailing Atlantic City casinos, but both times, professional sports leagues and the NCAA intervened in court to prevent the laws from going into effect.
Last August, a federal appeals court in Philadelphia ruled in the sports leagues’ favor, and New Jersey appealed to the Supreme Court. Earlier this month, the Supreme Court did not agree to take the case, but instead of flatly denying New Jersey’s appeal, the Court asked the Solicitor General to file a brief expressing what the U.S. government thinks of the case.
“It’s not something that happens very often,” said Christopher Soriano, a gaming attorney from New Jersey who has closely followed the case. “For the court to call for the view of the Solicitor General, it means at least one of the justices is interested in hearing more information.”
The Solicitor General is the lawyer who represents the federal government in cases before the Supreme Court. The U.S. government is not a party to the New Jersey case, so the Supreme Court basically is asking the new Solicitor General to summarize what he or she makes of New Jersey’s case.
If the new Solicitor General filed a brief that states the challengers from New Jersey have raised legitimate complaints, America’s highest court probably will take up the case, Soriano said, setting the stage for the Supreme Court to rule on PASPA’s long-debated constitutionality. A ruling in favor of New Jersey would open the door for states across the country to legalize sports betting. Lawmakers in a handful of other states, including Pennsylvania and New York, have expressed interest in adding sports betting to their legal gambling offerings.
If the Supreme Court agreed to take the case, Soriano estimated the justices could hear arguments from both sides by next January, and could issue a ruling some time in the late spring or summer of 2018.
The American Gaming Association, the trade association for gambling interests, has called for repealing PASPA, and allowing states to decide for themselves if they want legal sports betting. In December, the association sent Trump’s transition team a memo highlighting the reasons why it supported legal sports betting.
“The United States’ approach to sports betting lags behind Europe and other countries that effectively regulate a legal market,” said the memo, which then quoted from a report by a British economist published last year that concluded that, “rather than setting the standard, the United States is on par with Russia and China, having forced a groundswell of black-market gambling by prohibiting the popular pastime of sports betting.”
Trump’s pick for Solicitor General is rumored to be down to two people: Charles Cooper, a D.C. lawyer and friend of Attorney General nominee Jeff Sessions, and George Conway, a corporate attorney from New York and husband to Trump White House senior adviser Kellyanne Conway.
Trump, a former Atlantic City casino owner, has supported legal sports betting in the past.
“It is vital to keeping your taxes low; it’s vital to the senior citizens; and it’s vital to putting the bookies out of business,” Trump said in 1993, as he led an unsuccessful push for New Jersey lawmakers to add legal sports betting.
In 2015, then candidate Trump was asked about sports gambling by sports radio show host Colin Cowherd.
“I’m okay with it because it’s happening anyway,” Trump said. “Whether you have it or you don’t have it, you have it.”