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Adam Silver

Making Sense of the NBA’s Mixed Messages on Sports Betting

By Brett Smiley | Published: November 20, 2017 at 1:45 pm

One of the many peculiar elements of the Supreme Court sports betting case (Christie v NCAA) is the National Basketball Association’s actions and words regarding sports wagering in the United States. They are indeed at odds and it’s possible that it hurts the NBA’s 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), let’s 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 Stern’s 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:

“In 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.”

More recently in March 2016 during a SXSW interview with CNN’s Brian Stelter, Silver explained the purpose of that op-ed and expanded on his position:

“The point for me of writing that op-ed was to get people talking about it; it wasn’t for me or the NBA to try and lobby legislators in Washington. That’s not something I’m comfortable doing right now but I’m certainly comfortable giving my opinion …

“I can’t put a specific timeline on it, I think that [sports betting’s legalization] may happen sooner than anyone would have thought. And it depends, we’ll 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 don’t want to raise taxes over here, people are going to continue to gamble on sports illegally, let’s protect the integrity of the leagues, let’s regulate it and let’s tax it.”

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 states’ rights, and the scope of the federal government’s role in the way states regulate their citizens.

Still, The NBA’s Push For a Federal Framework Is Understandable

The NBA says it desires a federal framework. That’s 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  policies state-by-state.

“I definitely see the desirability of a federal framework for the sports leagues” said John Holden, visiting Scholar at Florida State University who filed a brief in support of New Jersey in Christie v NCAA. “I think that’s a very smart position that the NBA has held for just over three years since Silver’s 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 Silver’s position, that’s the desirable route.”

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 states’ 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.” (Stern has since reversed course and now favors legalization.)

Part II of the league’s 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 government’s 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 Horsemen’s Association (NJTHA), Have Highlighted the NBA’s 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 there’s no regulation at all. Silver acknowledged it’s bad for the leagues. It’s also bad for consumers.

Now here’s where New Jersey points out the leagues’ hypocrisy with respect to PASPA, citing Silver’s 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 commissioner’s worry that “legalized sports gambling would change … the way [NFL games] are perceived,” the baseball commissioner’s concern about “the moral status of sports gambling [being] redefined by legalization,” and a former FBI agent’s suggestion that expanded legal sports wagering might “draw new recruits to illegal gambling.” Id. at 4, 7 (emphases added). … That preoccupation with the threat of “legalized” 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.  See Adam Silver, Legalize and Regulate Sports Betting, N.Y. Times, Nov. 13, 2014, at A27.

The NJHTA also mentions Adam Silver’s writing, noting that Silver seems to agree that PASPA is a failed and “increasingly unpopular” law. It sure didn’t prevent the Donaghy scandal.

The NBA is now working directly with lawmakers to craft federal legislation that would allow sports betting. 

That’s 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 NBA’s case? It’s possible, and there’s a decent chance their support for sports wagering will come up, either from New Jersey’s 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 league’s public statements and actions will make it difficult to explain that PASPA is necessary or effective in protecting the “integrity” of the games.

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