Jeff Ifrah Interviewed on Why the Odds are Good for a Supreme Court Reversal of PASPA
June 29, 2017
It took six years, but New Jersey’s efforts to legalize sports betting has now reached a point where it appears more likely than not that it will be successful.
That’s because more than 70 percent of cases in the last five years that have been taken up by the U.S. Supreme Court — which agreed on Tuesday to do so in the sports betting case — have been reversed in favor of the party that sought such action.
Last year, only nine out of 54 cases — or 17 percent — were affirmed by the court, according to researchers for the Supreme Court-focused SCOTUSblog.com.
In NFL parlance, New Jersey now appears to be a double-digit favorite against the NFL and four other national sports organizations in the long-running sports betting case.
“I think in this case, it is very difficult to see a scenario where New Jersey does not walk away with a victory,” said Washington, D.C.-based attorney Jeff Ifrah, who has followed the sports betting case.
Ifrah said the minority of cases that are affirmed include many the court is forced to take because two circuit courts have issued contradictory rulings on the same issue.
But in this case, a U.S. District Court judge twice sided with the leagues and the federal government in striking down the sports betting law written by the state Legislature in 2012 and its revised one in 2014. Both times, the U.S. 3rd Circuit Court of Appeals upheld those rulings, by 2-1.
The state even was offered the rare chance for an “en banc” hearing of 12 circuit court judges in 2015, in which nine of the 12 sided with the leagues and the federal government again.
In each, the courts found that the Professional and Amateur Sports Protection Act of 1992 (PASPA) passed by Congress is constitutional.
“It is very hard to understand why this court would take this case if not to repeal PASPA,” Ifrah said.
If New Jersey does win the case — a ruling is expected in the first half of 2018 — it would open the door for other states to follow.
Eight states — New York, Pennsylvania, Connecticut, Maryland, West Virginia, Michigan, South Carolina and Hawaii — have introduced preliminary sports betting bills, according to legalsportsreport.com, in an attempt to get a head start on legalization if the court overturns the 3rd Circuit’s ruling.
Christopher Soriano, a gaming law attorney for the Duane Morris law firm in Philadelphia, said that at least four of the nine justices must have found important constitutional issues being raised by the lawsuit for the court to take the case.
“I think the court is going to be most interested in two issues: whether a statute that essentially regulates a state legislature’s activity is constitutional, and whether a statute that permits certain states to have sports betting — but not others — is constitutional,” Soriano said.
The federal law now in question bans sports betting on major professional and college team sports in the United States but carves out a full exemption for Nevada and leaves limited options for Delaware, Montana and Oregon for gambling they had offered before the ban.
The law also is unusual in that it seemingly directs most states to retain their bans on sports betting — something that two-thirds of New Jersey voters in 2011 rejected and that Gov. Chris Christie and a majority of the state Legislature also have disputed.
Ifrah agreed with Soriano that the former issue of “equal sovereignty” may be more closely reviewed by the top court, and that it may consider more directly whether PASPA is constitutional.
Marc Edelman, a professor of law at Baruch College’s Zicklin School of Business and a longtime follower of the case, said it would be “myopic” of observers to assume that New Jersey might win the case simply on the notion that a Republican majority means the state can win from a state’s rights standpoint.
Edelman added that it would be equally inaccurate to assume the Republicans will side with the multibillion-dollar sports leagues to be “pro business” or to oppose sports betting expansion on religious grounds.
The outcome is particularly challenging to predict, Edelman said, because only twice in U.S. history has the court weighed in on the issue of “commandeering” — whether Congress overstepped its bounds with a federal law that forces the conduct of states. Edelman said that could be a key issue in the case.
Daniel Wallach, a sports law attorney in Fort Lauderdale, Florida, said that even the potential presence of former U.S. Solicitor General Paul Clement for oral argument before the Supreme Court this fall is not an element in favor of the sports organizations. Clement has written numerous briefs for the leagues and previously argued for them in court.
“Paul Clement knows how to win big cases, but New Jersey has someone every bit his counterpart in Ted Olson,” Wallach said of the attorney who won the 2000 Bush v. Gore case that determined the presidency, and many other cases before the court.
Clement replaced Olson as solicitor general in 2005.
The NFL as well as the plaintiff organizations overseeing collegiate sports and professional basketball, hockey and baseball leagues all declined to comment for a second straight day or did not respond to requests for comment.