American sports leagues rally to defend PASPA

esentatives from the National Collegiate Athletes Association, the NBA, NHL and NFL have today rallied to the defence of the Professional and Amateur Sports Protection Act (PASPA) in testimony at the US Supreme Court.

Paul Clement, the attorney representing the leagues, dismissed the claims made by New Jersey representatives that PASPA is unconstitutional in that it commandeers the states’ rights to legalise sports betting.

In his statement before Supreme Court Justices, Clement said: “New Jersey contends that PASPA violates the anti-commandeering doctrine because it requires New Jersey to maintain its pre-existing prohibitions on sports gambling. But PASPA does no such thing.

“In fact, PASPA contains no affirmative command of any kind. It does not require states to maintain, enact, enforce, or do anything. Instead, under PASPA states must simply refrain from taking certain actions, i.e., from operating sports-gambling schemes or from authorising third parties to do so in their stead.”

The crux of the leagues' argument rests on the supremacy of federal law over state law, with the New Jersey argument positing that states should be able to determine their own approaches to sports betting independent of PASPA, which it deems to be unconstitutional.

However in a later excerpt from Clement’s statement, he asserts that no laws have been commandeered, stating: “At the end of the day, New Jersey’s real complaint is that Congress has forbidden it from enacting the specific policy it prefers - namely, state-sponsored sports gambling at its state-licensed casinos and racetracks.

“And make no mistake, Congress has done that. But Congress does not commandeer the states just because it limits their policy options, and nothing in the Tenth Amendment prevents Congress from using its commerce power to pre-empt state laws that contravene federal policy.

“The difference between permissible pre-emption and impermissible commandeering is that the former precludes certain state action, while the latter commands it. PASPA falls comfortably in the former, permissible camp.”

Arguments from both sides will be heard in the Supreme Court on 4 December, with a decision likely to be made during the first half of 2018.

Responding to the leagues comments, American Gaming Association Director of Media Relations Steve Doty said: “The Supreme Court decided to use its limited time and resources to hear this case because of the very real concern that PASPA is unconstitutional. Beyond that legal question, PASPA is an abject failure because it has not stopped a thriving $150 billion illegal sport betting market.

Neither consumers nor sports leagues are protected by this burgeoning black market. In the unlikely event that the Supreme Court upholds PASPA’s constitutionality, Congress will have to address this failed law and allow states and tribal sovereign nations to regulate sports betting as they do all other forms of wagering.”