Page 10 - Delaware Lawyer - Winter 2023

FEATURE | A BUSY 5 YEARS
in 2009, New Jersey launched a full- frontal attack on PASPA, arguing it was an unconstitutional infringement on states’ rights. And, notably, Gov- ernor Christie hired the famed Su- preme Court litigator — and former Solicitor General of the United States — Ted Olson to represent New Jer- sey in the case that ended up at the High Court.
The New Jersey litigation went on for six years. The crux of Olson’s ar- gument was that PASPA did not, by its terms, prohibit sports betting; in- stead, it prohibited states from regu- lating sports betting, thus comman- deering the states’ rights. The sports leagues initially won in the district court in Newark in front of Judge Michael Shipp (whose brother, Mar- cel, was an NFL running back) and in the Third Circuit by a 2-1 vote. The majority stated that an avenue to sports betting in New Jersey re- mained — while the state could not affirmatively legalize and regulate sports betting under PASPA, it could repeal its prohibitions on sports bet- ting. The Supreme Court denied certiorari.
Picking up on the Third Circuit’s opinion that New Jersey could, con- sistent with PASPA, repeal its prohi- bition on sports betting, New Jersey passed a law in 2014 that did just that, though the repeal was limited to casinos and horse racetracks, so long as the wagers were placed by adults and did not involve New Jersey col- lege sports teams — that is, general prohibitions would remain on sports betting, except at those favored loca- tions with this nuance. This approach was orchestrated by Dennis Drazin, the CEO of Monmouth Park Race- track, who was among those lead- ing the effort to bring sports betting to New Jersey as a way to revitalize struggling Atlantic City casinos and racetracks.
Following the passage of New Jersey’s 2014 sports betting law, the sports leagues were back in court, ar- guing that the new “partial repeal” law violated PASPA. The district court again sided with the leagues and the case then went back to the Third Circuit. The court of appeals was again divided, but this time, the author of the majority opinion in the first appeal sided with New Jersey, es- sentially stating that the partial repeal law was consistent with the earlier decision. The case was then heard en banc with the sports leagues winning before a divided Third Circuit. This time, the Supreme Court granted re- view to consider the commandeering argument advanced by Olson on be- half of New Jersey.
The Court heard the case on De- cember 4, 2017 with an interesting mix of people in the courtroom. Ol- son argued the cause for New Jer- sey, while another former Solicitor General, Paul Clement, argued for the sports leagues. The U.S. Depart- ment of Justice separately defended the law. Governor Christie was in the courtroom, as were the sports league and gambling industr y executives. It was soon apparent which way the Court was heading — at one point during the argument, Chief Justice Roberts was incredulous that the Government was of the view that un- regulated sports betting by children was acceptable under PASPA.
The Dawn of a New Era
When the Supreme Court’s deci- sion was handed down in May 2018, it was a resounding victory for New Jersey and its aligned parties. In what essentially was a 7-2 decision authored by Justice Alito, the High Court struck down PASPA, finding the statute violated anti-comman- deering principles of the Constitu- tion, and rejected by a 6-3 vote that
Donte DiVincenzo of Salesianum School drives past Tim Butler of Polytech High School in the 2015 state championship game. DiVincenzo is now a key member of the Golden State Warriors.
parts of the statute were severable. States were now free to legalize and regulate sports betting within their boundaries. And, with that, an en- tirely new era in gambling and sports in the U.S. was born.
And it was a quick birth. Within three weeks of the Court’s decision, Delaware Governor John Carney stood in the sports book at Dover Downs, surrounded by television cameras, and bet $10 on the Phillies to beat the Cubs — the first post- PASPA wager. (He won.) Because Delaware already had the infrastruc- ture in place from its football parlay betting conducted by the Delaware Lottery since 2009, it was able to be the first state to take advantage of the Supreme Court’s ruling.
A week later, New Jersey was next when Governor Phil Murphy, who succeeded Governor Christie, opened
BUD KEEGAN
8 DELAWARE LAWYER WINTER 2023