One of the many peculiar elements of the Supreme Court sports betting case (Christie v NCAA) is the National Basketball Associationβs actions and words regarding sports wagering in the United States. They are indeed at odds and itβs possible that it hurts the NBAβs case in court (along with the other leagues).
Sports fans may have heard or read NBA commissioner Adam Silver openly supporting legal, regulated sports betting in the U.S. Yet the NBA, along with other sports leagues, is battling New Jersey to maintain the federal law, PASPA, that since 1992 has barred sports betting outside Nevada. (Chris Christie is named in the lawsuit because he is Governor; this is standard procedure.) Often litigants make public remarks to aid their case, but here we have the NBA publicly advocating in favor of sports betting — while fighting PASPA in court.
With oral arguments just two weeks away on December 4 in the Supreme Court of the United States (SCOTUS), letβs take a look at what the heck is happening here with the NBA.
The NBA’s Public Support of Legalized Sports Betting Is Difficult to Reconcile With Their Role In Fighting The Very Law That Bans Sports Wagering in the U.S.
To be sure, the NBA and its leaders have pulled a 180 in recent years, from vehement opposition to sports betting, to now general support. One decade ago in 2007, a scandal engulfed the the league after the FBI busted former NBA referee Tim Donaghy for influencing scores of games in connection with a gambling operation. As a result, then-NBA commissioner David Sternβs opposition hardened against sports wagering. He wrote in 2012 in connection with an earlier stage of the New Jersey case:
“The NBA cannot be compensated in damages for the harm that sports gambling poses to the fundamental bonds of loyalty and devotion between fans and teams. Once that special relationship has been compromised, the NBA will have been irreparably injured in a manner that cannot adequately be calculated in dollars.”
Fast forward just two years and Adam Silver penned the famous op-ed in the New York Times. He wrote in regard to regulated sports betting outside the U.S. and in England:
βIn light of these domestic and global trends, the laws on sports betting should be changed. Congress should adopt a federal framework that allows states to authorize betting on professional sports, subject to strict regulatory requirements and technological safeguards.β
More recently in March 2016 during a SXSW interview with CNNβs Brian Stelter, Silver explained the purpose of that op-ed and expanded on his position:
βThe point for me of writing that op-ed was to get people talking about it; it wasnβt for me or the NBA to try and lobby legislators in Washington. Thatβs not something Iβm comfortable doing right now but Iβm certainly comfortable giving my opinion β¦
βI canβt put a specific timeline on it, I think that [sports bettingβs legalization] may happen sooner than anyone would have thought. And it depends, weβll see what party is controlling Congress and who the president is, but I think it makes perfect sense especially when all these jurisdictions are in need of tax dollars, crumbling infrastructures, that if people donβt want to raise taxes over here, people are going to continue to gamble on sports illegally, letβs protect the integrity of the leagues, letβs regulate it and letβs tax it.β
High-ranking NBA officials and attorneys have made clear that the league supports legalized sports betting, but they draw a distinction that they want a federal framework in which states can choose to opt into the regulatory framework, as opposed to states individually deciding how to license, tax and regulate sports betting.
That position is borderline comical in the context of this case because this case hinges on statesβ rights, and the scope of the federal governmentβs role in the way states regulate their citizens.
Still, The NBAβs Push For a Federal Framework Is Understandable
The NBA says it desires a federal framework. Thatβs Part I of its rationale for fighting New Jersey here. The league proffers that a federal framework would give the league more clarity about sports wagering, thus making life easier inside the NBA to establish lucrative sponsorships, participate in sports wagering integrity monitoring, and avoid confusion or having to manage different Β policies state-by-state.
βI definitely see the desirability of a federal framework for the sports leaguesβ said John Holden, visiting Scholar at Florida State University who filed a brief in support of New Jersey in Christie v NCAA. βI think thatβs a very smart position that the NBA has held for just over three years since Silverβs op-ed. A federal framework would provide a much cleaner solution for them than having to negotiate the intricacies of 50 different state laws, and all the gaming compacts and issues like that. If I were in Adam Silverβs position, thatβs the desirable route.β
Still, the league’s desire really has no bearing on how this case will be decided. The case will hinge on the constitutionality of PASPA. New Jersey argues that the law, essentially, violates statesβ rights.
But the fact that the NBA support sports wagering appears to undermine the very purpose of PASPA when Congress passed the law: To stop an expansion of sports wagering outside Nevada. Recall what David Stern wrote: “The NBA cannot be compensated in damages for the harm that sports gambling poses to the fundamental bonds of loyalty and devotion between fans and teams.β (Stern has since reversed course and now favors legalization.)
Part II of the leagueβs reason for the fighting in court (along with the other pro sports leagues) is that, well, they claim the law is perfectly constitutional — a proper and common application of the federal governmentβs power to dictate the law of the land. The law allows the leagues to have courts enforce the law. So they are — in order to bring the integrity argument to completion, and to give the league the time and ability to attempt to devise a federal framework with Congress, rather than having the states begin operating according to their own laws.
New Jersey and Co-Petitioner, the New Jersey Thoroughbred Horsemenβs Association (NJTHA), Have Highlighted the NBAβs Contradictions
The NBA (along with the other leagues) have consistently fought to enforce PASPA. All the leagues now recognize what the NBA is saying out loud: Sports wagering is happening illegally all over the U.S. — in the shadows where thereβs no regulation at all. Silver acknowledged itβs bad for the leagues. Itβs also bad for consumers.
Now hereβs where New Jersey points out the leaguesβ hypocrisy with respect to PASPA, citing Silverβs op-ed. In its brief in SCOTUS, New Jersey is referring to the Senate Judiciary committee, which held hearings in 1991-1992 on sports wagering and produced PASPA (emphasis added):
The committee report invokes the football commissionerβs worry that βlegalized sports gambling would change β¦ the way [NFL games] are perceived,β the baseball commissionerβs concern about βthe moral status of sports gambling [being] redefined by legalization,β and a former FBI agentβs suggestion that expanded legal sports wagering might βdraw new recruits to illegal gambling.β Id. at 4, 7 (emphases added). β¦ That preoccupation with the threat of βlegalizedβ sports wagering seems to have been misplaced, insofar as the NFL and NHL now or soon will have teams in Las Vegas, and the commissioner of a third League has publicly announced his support for legalized sports wagering. Β See Adam Silver, Legalize and Regulate Sports Betting, N.Y. Times, Nov. 13, 2014, at A27.
Mark Davis, @nflcommish and @LasVegas mayor break ground on New @RAIDERS stadium. pic.twitter.com/E4U5WKRlKG
— Justin Arbogast (@NFLGuy_SK) November 14, 2017
The NJHTA also mentions Adam Silverβs writing, noting that Silver seems to agree that PASPA is a failed and βincreasingly unpopularβ law. It sure didnβt prevent the Donaghy scandal.
The NBA is now working directly with lawmakers to craft federal legislation that would allow sports betting.Β
More from NBA's Spillane: Whatever outcome in NCAA v Christie doesn't foreclose federal approach to sports betting. NBA had been studying and preparing for range of outcomes. #SBUSA17
— Brett Smiley (@brettsmiley) November 14, 2017
Thatβs a development that began (at least publicly) in May 2017 and we now have more clarity about this. New Jersey Representative Frank Pallone Jr. (NJ-6) said at a conference last week that the leagues have told him privately that they are in favor of legalizing sports betting.
Why in favor? Money, first and foremost.
So, will this matter in court and potentially harm the NBAβs case? Itβs possible, and thereβs a decent chance their support for sports wagering will come up, either from New Jerseyβs counsel Ted Olson, or as a question from one of the justices. While the case is likely to turn on the constitutionality of PASPA, the leagueβs public statements and actions will make it difficult to explain that PASPA is necessary or effective in protecting the βintegrityβ of the games.