New Jersey states its case for sports betting

By Robert Simmons
Representatives acting for the state of New Jersey and the New Jersey Thoroughbred Horseman’s association have filed legal briefs stating their case before the US Supreme Court.

The briefs represent the final time that written testimony can be filed before the Supreme Court hears oral arguments against the validity of the Professional and Amateur Sports Participation Act (PASPA) on 4 December.

In a 36-page document, Ted Olson, acting as the main attorney for the state of New Jersey said: “PASPA’s prohibition on state “authoris[ation] by law” impermissibly commandeers state regulatory authority by dictating the content of state law—States may not legalise sports wagering. Because this constraint on state legalisation is central to the statutory scheme, the entire statute should fall, because Congress would not have otherwise enacted PASPA.

“Without this central provision, PASPA would allow States to legalise sports wagering but prohibit them from regulating it, opening the floodgates to a multi-billion dollar expansion of uncontrolled and underground sports wagering. The Congress that enacted PASPA cannot have wanted that irrational result; to the contrary, the text of PASPA’s exceptions makes clear that Congress wanted sports wagering, wherever it might be permitted, to be regulated by States.”

Supporting the states' argument with their own 31-page brief, the New Jersey Thoroughbred Horseman’s Association (NJTHA) said that: “The NJTHA, State Petitioners, and many amici contend that PASPA’s most natural meaning is that it commands the States to prohibit sports wagering. Respondents and the United States do not dispute that if PASPA is interpreted this way, it is unconstitutional.”

The NJTHA also contends that PASPA is fundamentally constructed in such a way “that permits the Court to avoid deciding the constitutional question presented” and argues that justices in New Jersey’s two legal hearings in US circuit courts (in 2014 and 2016) have used this avoidance as a vehicle to dismiss New Jersey’s attempts to legalise sports betting in their state.

In its brief, the NJTHA puts a final kick into the constitutional validity of PASPA by dismissing the contention that it “does not require states to maintain or enforce anything” and as such provides the states “with many sports-betting choices, such as a full repeal of sportsbetting prohibitions and some partial repeals of sportsbetting prohibitions.”

With almost 20 states now openly supporting the repeal of PASPA, and more recently the NBA shifting its emphasis from background support to open advocacy, the Supreme Court review promises to be one of the most highly contested in US legal history. With a potential $15bn industry on the line, there is a lot at stake for states and gambling operators alike in the US.


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