Page 16 - Delaware Lawyer - Winter 2023

FEATURE | FIRST STATE IN SPORTS GAMING
MARK CAMPBELL
UD's Elena Delle Donne, who has twice been named MVP of the WNBA.
Tribbitt faced in the early 1970s. The credit-card banking boom that began in the early 1980s with Delaware’s Fi- nancial Center Development Act had subsided. Now the automobile industry was gone. What could be done to boost the economy? Considering the project- ed huge budget deficit the State faced as a result of the tax revenue declines, this was a very important question.
One possibility was reviving sports gaming in the First State. General pub- lic attitudes toward the activity had evolved since the 1970s. FanDuel, one of the early fantasy sports competitors, launched in 2009, reflecting this change in public perception (a rival company, DraftKings, would begin three years lat- er).6 Studies validated what had become
readily apparent — notwithstanding its illegality, an ever-increasing number of Americans wagered billions annually on sports. And the fact that Delaware was one of four states exempted under PAS- PA meant this was a real opportunity.
Taking Delaware to Court: Round 2
In March 2009, Governor Markell proposed new legislation to the Dela- ware Assembly authorizing sports bet- ting. The proposed law went much broader than before — permitting cer- tain forms of sporting gaming on not just the NFL but other professional and amateur contests. Aware of the prior NFL litigation and respectful of the Delaware Constitution, the Governor
requested an advisory opinion from the Delaware Supreme Court, as permit- ted under the Delaware Code, on the constitutionality of the proposal under Delaware law. The Supreme Court ap- pointed Delaware attorney, and future Chancellor, Andre Bouchard to pres- ent the “affirmative response” and an- other esteemed Delaware lawyer, Law- rence Ashby, to present a “negative response.” Unsurprisingly, the powers in professional and amateur sports took immediate notice of this proposed law. Indeed, the NFL (represented by Ken- neth Nachbar at Morris Nichols Arsht & Tunnell) was permitted to appear and submit an amicus curiae brief in the matter. Just over two months after the Governor’s request, the Delaware Supreme Court rendered an advisory opinion, finding the legislation com- ported with the State’s Constitution.7 (The Governor had already signed the legislation into law two weeks earlier.) The Justices relied heavily on the deci- sion of (now retired) Judge Stapleton. The Governor’s “bet” on a forthcom- ing favorable decision turned out to be a winner. But any glory in victory was very short-lived.
On July 24, 2009, Governor Markell and Wayne Lemons, Director of the State Lottery Office, were sued in Delaware District Court by the titans of American sport: the NFL, Commis- sioner of the MLB, the NBA, NHL and the NCAA.8 This was the start of what would become an extraordinary sequence of legal proceedings within a condensed amount of time. Why the rush? Delaware planned to begin of- fering its new sports betting regime on September 1 and the NFL season would begin on September 10, which was in six weeks.
Plaintiffs sought injunctive relief on two grounds. First, Delaware’s law was alleged to violate the federal law, PASPA. Second, it was alleged that the new law created a lottery impermissible
14 DELAWARE LAWYER WINTER 2023