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NJ Sports Betting Law Back Before Third Circuit <i>En Banc</i>
The state of New Jersey got a second roll of the dice before the U.S. Court of Appeals for the Third Circuit in its attempt to legalize sports betting. Last month, the en banc court reheard argument six months after a divided three-judge panel struck down the Garden State's latest sports betting law, with the majority saying the state's most recent attempt still runs afoul of the federal 1992 Professional and Amateur Sports Protection Act (PASPA).
In her majority opinion in National Collegiate Athletic Association (NCAA) v. Governor of the State of New Jersey, 799 F.3d 259 (3d Cir. 2015), Senior Judge Marjorie Rendell had said the PASPA prohibits states from “authorizing by law” statutes that permit sports betting.
New Jersey Gov. Chris Christie has championed sports betting as a way of revitalizing Atlantic City, NJ's beleaguered casinos. On Oct. 17, 2014, Christie signed S2460, which was passed by both chambers of the state legislature with only slight opposition. The law removed prohibitions on sports betting at casinos and racetracks, but barred sports betting at other locations. At Christie's insistence, the legislation included language that prohibits wagering on any New Jersey colleges, regardless of where the games are played, and limits sports betting to those aged 21 and older.
Arguing the case en banc for the NCAA and several professional sports leagues in the en banc hearing was Paul D. Clement, former U.S. solicitor general. Representing New Jersey was Theodore Olson of Gibson, Dunn & Crutcher.
Olson questioned the constitutionality of the PASPA, which he claimed violated the anti-commandeering portion of the 10th Amendment by using the states as instruments of Congress. “It would conscript the states and municipalities into the federal government,” Olson argued to the court.
Ronald Riccio, representing the New Jersey Thoroughbred Horsemen's Association, argued that sports betting in New Jersey would be self-regulated once legalized. But Circuit Judge Kent A. Jordan asked what would happen if that self-regulation turned out to be a travesty. Riccio responded that the state would have to step in.
Clement argued to the court that, under the PASPA, states just can't sponsor, promote or advertise sports betting. Clement said that it is perfectly constitutional for the federal government to require states not to enact certain laws. Decriminalizing bets among friends under $1,000 would be permissible under the PASPA, Clement said, but putting sports betting in the casinos and racetracks where the New Jersey state government regulates gambling would violate the act.
P.J. D'Annunzio is the Federal Courts Reporter for The Legal Intelligencer, the Philadelphia-based ALM sibling of Entertainment Law & Finance.
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