Law

Why experts think N.J. will win sports gambling case

Court will hear oral arguments today, ruling could come later in spring

By Paul R. Bergeron III
Washington, D.C. | December 4, 2017 at 10:53 am

By Paul R. Bergeron III
Washington, D.C. | December 4, 2017 at 10:53 am

Sports gamblers rely on trends to help them wager successfully. When the U.S. Supreme Court hears oral arguments Monday in the Christie v. NCAA case, recent history makes New Jersey the favorite in its more than eight-year battle against the NCAA and federal law, which prohibits sports wagering here and around the country.

In this landmark case, New Jersey contends the Professional and Amateur Sports Protection Act of 1992, also known as PASPA or the Bradley Act — named for former U.S. Sen. Bill Bradley of New Jersey — is unconstitutional based on the 10th Amendment.

That amendment reserves to the states all rights not explicitly granted to the federal government — such as gambling regulation.

An event last Friday at the National Press Club included panels comprising attorneys, the American Gaming Association and casino industry representatives, all of who discussed arguments on both sides, their implications and the potential future of sports gambling in New Jersey and elsewhere.

“My prediction is that we’ll be having legalized sports wagering in New Jersey at Monmouth Park race track by Week 1 of the NFL season; and maybe even by the time of this year’s (NCAA basketball) Final Four in March,” said Daniel Wallach, an attorney with Becker & Poliakoff in Fort Lauderdale, Florida, who organized last Friday’s event.

“When you look at recent history on U.S. Supreme Court rulings, 83 percent show a reversal of the lower court opinion; and in the past five years, that figure is still over 70 percent,” Wallach said.

“So, all of the metrics show a change is afoot. What that change looks like, we’ll have to wait and see. It might not be whether New Jersey prevails on its partial repeal, but how sweeping of a decision in New Jersey’s favor it turns out to be.”

Wallach said the justices Monday could indicate which way they are leaning based on the questions they ask.

“Listen for how the questions are framed,” Wallach said. “Do they sound cynical? Do they bring up equal sovereignty? Do they mention the unique relationship between sports betting and the state of Nevada? Do they ask about fantasy sports? Do they mention that Las Vegas is now home to an NHL team and that an NFL franchise is relocating there?”

On Monday, Wallach tweeted that he sees a win for New Jersey.

Christie v. NCAA is one of several cases being heard by the Supreme Court, which does not convey when a given case’s ruling will be announced, but does schedule dates when rulings could be made: Dec. 11, Jan. 22, March 5, April 2 and 30, May 14, 21 and 29, and June 4, 11, 18 and 29.

Court followers suggest the decision would come in spring or later.

Just months ago, New Jersey and the gaming industry believed it had exhausted all efforts to win this case. But, to the surprise of many, on June 27 the Supreme Court decided it would take the case.

“Look at where this case was just five months ago,” Wallach said. “It wasn’t even being mentioned. Now it’s going to the Supreme Court. New Jersey has lost six battles on this case in the lower courts. But this is the one that counts.

“When you get to the Supreme Court, it doesn’t matter what happened before. You don’t have to have a .500 record. You don’t have to be an All-Star. You just have to win once. All the trends are in New Jersey’s favor.”

ESPN commentator and renowned sports law expert Andrew Brandt, a panelist at Friday’s event, outlined four potential outcomes in his recent article published by Sports Illustrated:

  • The court could simply leave the status quo, although this seems unlikely as it presumably took the case for a reason.
  • The court could declare PASPA unconstitutional, allowing New Jersey to start operating sports books immediately, with other states poised to follow suit. This is something the leagues oppose but must be prepared to manage.
  • Beyond those two extremes, the court could resolve the dispute in more technical legalese. This result would probably make the ruling “New Jersey-specific,” a result other states would dislike.
  • The court could also invoke the extremely unlikely “nuclear option,” banning gambling everywhere, including Nevada, in order to treat all the states equally. That result would send shock waves through the gambling world and halls of Congress.

On Monday, Brandt tweeted that he, too, can see a win coming for the Garden State:

Brandt said Friday the issue is an evolving one that has reached a precipice.

“To think, (in June 2015), the NFL did not allow Tony Romo to attend a fantasy sports convention in Las Vegas based on ‘integrity’ issues of the league,” he said.

“We’ve heard a lot from NBA Commissioner Adam Silver in favor of sports betting and MLB’s Rob Manfred has also spoke about its potential impact in his sport. As for commissioners Roger Goodell (NFL) and Gary Bettman (NHL), I can’t believe they are just sitting back at this point. The leagues have to be ready to address this.”

The bookmakers are.

Daniel Shapiro, vice president of strategy & business development for London-based bookmaker William Hill, which operates 109 sports books in Nevada, says his company has an agreement in place within Monmouth Park in Oceanport to convert an existing sports bar into sports book.

“We’re all set,” Shapiro says. “We’ve trained staff on how to operate sports betting. If New Jersey wins the case, we’ll be converting the bar there to a sports book almost immediately.”

Shapiro says New Jersey racetracks and former racetracks, as well as casinos such as those in Atlantic City, are expected to be the first venues to benefit from legalized sports betting.

Among them, Shapiro said, are Meadowlands Racetrack in East Rutherford, Freehold Raceway in Freehold and Garden State Park in Cherry Hill.

Michael Pollock, managing director, Spectrum Gaming Group, says New Jersey prides itself in its ability to regulate effectively.

“If the decision goes in New Jersey’s favor, I don’t know how long it will take other states to put guidelines in place, but, for New Jersey, it will be done in record time,” he said Friday. “They are the gold standard when it comes to this.”

Arguing the case for New Jersey will be Ted B. Olson, partner, Gibson, Dunn & Crutcher. He will be opposed by Paul Clement.

Christie will be in attendance, according to the Governor’s Office.

On Friday, Elbert Lin, partner, Hunton & Williams LLP, and Matthew McGill III, partner with Gibson, Dunn & Crutcher LLP, in Washington, D.C., spoke to their case in support of Christie.

McGill said any leagues’ claims of injury that are a result of sports betting are “absurd,” citing the league’s words and actions on topics such as the relocation of sports teams to Las Vegas, their sponsorship and advertising agreements with fantasy sports operations and evidence that fantasy sports and encourage fan engagement, not hurt it.

Lin said that, if the Supreme Court rules in Christie’s favor, “Not all states will rush to repeal their laws.”

American Gaming Association Senior Vice President of Public Affairs Sara Slane cited four states are prepared to hit the ground running to provide sports wagering: New Jersey, Connecticut, Pennsylvania and Mississippi.

“This is a very exciting time for us,” Slane said. “No matter the ruling, we have a backup plan to put in place if it doesn’t go our way.”

(Paul R. Bergeron III is a freelance reporter based in Herndon, Virginia.)

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2017-12-08T09:48:00+00:00