In a brief filed Wednesday, government attorneys including acting Solicitor General Jeffrey B. Wall wrote that the case did not deserve the attention of the Supreme Court, as New Jersey had not raised valid constitutional problems with the Professional and Amateur Sports Protection Act of 1992, or PASPA, which barred legal sports betting outside of Nevada and a few other states.
“Obviously, we’re disappointed,” said Dennis Drazin, legal adviser to the racetracks seeking to add sports books. Drazin acknowledged the Supreme Court likely won’t hear the case, although it is still possible the court ignores the Solicitor General’s recommendation.
Theodore Olson, the lawyer for the NCAA and the sports leagues, did not immediately respond to a request to comment.
New Jersey has made two legislative attempts in the last five years to clear the way for lawful sports betting in its casinos and racetracks, and both times the NCAA and professional sports leagues have successfully intervened in court to stop the efforts.
Wednesday’s brief left open, however, one last legal avenue for New Jersey that Drazin thinks state lawmakers will pursue: a full repeal of all state laws against sports betting, a so-called “Wild West” scenario.
“If New Jersey wishes to repeal its prohibition on sports gambling altogether and thereby remain silent with respect to such gambling … PASPA does not stand in its way,” the Solicitor General wrote.
Unlike New Jersey’s prior attempts to get around the federal law, which focused on limiting sports gambling to casinos and racetracks, a full repeal would remove all the state’s laws against sports betting, effectively allowing neighborhood sports bookies to take bets without fear of local or state law enforcement. This would be a legal strategy similar to how Colorado allowed recreational marijuana by repealing its state laws against the drug, leaving it up to federal law enforcement agencies to decide if they wanted to intervene.
Drazin thinks a full repeal by New Jersey would prompt the professional sports leagues to approach Congress and request new legislation allowing sports betting under certain conditions. NBA Commissioner Adam Silver has expressed support for legal sports betting through a new federal law. NFL Commissioner Roger Goodell is still opposed, but some have seen the league’s decision to allow a team to move to Las Vegas — a scenario once considered unthinkable — as a sign NFL owners are softening in their long-held opposition to sports betting. MLB Commissioner Rob Manfred has said his league is “rethinking” its stance on sports betting, and the NHL awarded an expansion team to Las Vegas. Drazin and other proponents of sports betting point to all those developments as evidence the United States one day will be like much of Europe, where sports betting is legal, taxed, and regulated.
The NCAA likely will not change its stance. On its website, the NCAA maintains a position statement on the issue: “The NCAA opposes all forms of legal and illegal sports wagering, which has the potential to undermine the integrity of sports contests and jeopardizes the welfare of student-athletes and the intercollegiate athletics community.”
The American Gaming Association released a statement Wednesday indicating it will continue its lobbying for legal sports betting.
“The 25-year-old ban on sports betting is fueling a thriving $150 billion illegal gambling market that deprives states of revenue that could instead pay for vital public services,” wrote American Gaming Association Senior Vice President of Public Affairs Sara Slane. “The casino gaming industry is building a diverse coalition of stakeholders who will work with Congress and the Trump Administration to lift the unconstitutional ban on sports betting and give states the freedom to regulate this increasingly popular American pastime.”
Given the current climate in Washington, however, Drazin doesn’t expect new federal legislation on sports betting anytime soon.
“I think five years from now, sports betting will be legal,” Drazin said. “I also think this country has a lot more important things to deal with first, so it’s that not that high on Congress’ radar right now. We just need to be patient.”