Page 15 - Delaware Lawyer - Winter 2023

Above: Brahmir Vick of Middletown High School, now a senior at the U.S. Naval Academy, running the 110-meter high hurdles in 14.0 seconds at the 2019 Delaware Meet of Champions, to break the state record Eric Cannon had held for 34 years.
Taking Delaware to Court: Round 1
However, the excitement generated by the proposed football lottery was momentary. The NFL immediately filed suit in Federal Court in Delaware against Governor Tribbitt and the State Lottery Office, seeking injunctive relief to stop the new sports lottery. This was not to be a legal battle among mere mortals. The NFL was represented by Richards Layton & Finger, led by a formidable team including Norman Veasey (future Chief Justice of the Delaware Supreme Court), Roderick McKelvie (future Dis- trict Court Judge) and Thomas Ambro (future Third Circuit Court of Appeals judge). The State, represented by Attor-
ney General Richard Wier, also retained another prominent Delaware firm, Con- nolly, Bove & Lodge, whose legal team included James Mulligan and Andrew G.T. Moore, II (future Delaware Su- preme Court Justice). District Court Judge Walter Stapleton (a future Third Circuit Justice) presided over the case.
The NFL meant business. The League’s complaint constituted a smor- gasbord of claims, including alleged vio- lations of the U.S. Constitution’s Equal Protection and Commerce Clauses (the State‘s motion to dismiss such claims was granted). Early on, the Court de- nied the NFL’s request for a temporary restraining order, allowing the State to offer the Scorecard in time for the 1976 season. The plaintiff’s other claims in- cluded unlawful interference with prop- erty rights, violation of trademark and related unfair competition laws, breach of Delaware’s lottery statute, violation of the Delaware Constitution, breaches of federal anti-gambling law and the Civil Rights Act of 1983. For its part, Delaware asserted a counterclaim alleg- ing antitrust violations by the NFL and sought treble damages.
This would be hotly contested liti- gation. A six-day trial was held in late 1976. On August 11, 1977, Judge Stapleton issued an opinion. The deci- sion largely denied the NFL’s requested relief. The Court did issue an injunction directing the State to include with the Scorecard games a clear and conspicu- ous statement that it was not authorized by the NFL. Additionally, the judge de- clared the Touchdown II game as vio- lative of the Delaware lottery statute’s requirements: specifically, that no less than 45% of revenues must be distrib- uted as prize money.
Notwithstanding the mostly favor- able court decision, Scorecard was not a success. Near the end of the 1976 season, the lottery made national news when the Delaware Lottery Director canceled all wagers on the final week, on realizing that the point spreads on
the game cards deviated wildly — by up to nine points — from the spreads projected by professional oddsmakers in Las Vegas.4 After weathering a na- tional storm of bad publicity, and with a new administration headed by Gov- ernor Pierre S. du Pont IV, Delaware discontinued the Scorecard offerings after 1976. It would remain this way for quite some time.
PASPA Changes the Game
Perhaps the First State was way ahead of its time. It would take another gen- eration for the stigma associated with gaming generally, and sports betting in particular, to begin to fade. This change in attitude and another economic crisis would lead to the State facing another bout of litigation, this time against all major professional leagues and the NCAA.
Evidencing this historical taint sur- rounding sports betting, in 1992 Con- gress passed the Professional and Ama- teur Sports Protection Act (“PASPA”).5 The statute banned state-sponsored sports gambling expansively, but with a carve-out for offerings in four states, including Delaware, which already of- fered some form of gaming. Important- ly, these exceptions were only “to the extent that the scheme was conducted by the State between 1976 and 1990.” For the next decade and a half, things were mainly quiet on the sports gam- ing front with the exception of Nevada (also excepted under PASPA).
In 2009, the U.S. continued to suf- fer from the worst economic downturn since the Great Depression. Delaware was hit particularly hard, with both the General Motors and Chrysler assembly plants being shuttered in connection with the massive bankruptcies of those companies. The State not only suffered severe job losses, but faced significant tax revenue declines. Another Governor at the very beginning of his term, Jack Markell, faced an economic and fiscal scenario even worse that what Sherman
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