Last week, New Jersey and co-petitioner, the New Jersey Thoroughbred Horsemen’s Association, filed briefs on the merits against the National Collegiate Athletic Association (NCAA) and major professional sports leagues in the battle over sports betting in the Supreme Court. SportsHandle is monitoring this case closely and to bring our readers closer to what’s happening and how it may unfold, we spoke to John Wolohan, professor of Sports Law in the David B. Falk College of Sport and Human Dynamics at Syracuse University.
New Jersey’s Supreme Court Sports Betting Case: The Leagues Benefit From Gambling But This Boils Down to the Tenth Amendment
Mr. Wolohan is a frequent speaker on sports law and his work has been published in the Marquette Sports Law Journal, Seton Hall Journal of Sports Law, and Villanova Sports & Entertainment Law Journal, among other journals. Our conversation covered the petitioners’ briefs, amateur sports and point shaving, political accountability and more. (This interview has been lightly edited for brevity and clarity.)
SportsHandle: Let’s start broad. What is your overall impression of the two briefs?
Prof. Wolohan: I’ve been talking about this since Christie I and I’ve always felt that New Jersey has a really good argument under the Tenth Amendment that PASPA kind of, I shouldn’t say kind of, it does infringe upon the rights of the states. The law legislates something that’s not specifically reserved for the federal government and you’re basically making the states follow this. I know they can do that in certain areas, but this seems to be a conflict.
SportsHandle: As far as this brief, I was a little surprised they basically went all-in on the anti-commandeering argument. They touch a bit on state sovereignty, but kind of through the lens of commandeering. Do you make anything of that kind of all-in focus?
Prof. Wolohan: I’m looking at the state’s arguments now and it’s clear that that’s what they’re saying: If you’re going to take this and make us do something, you’re kind of exempting the federal government from any of the liability or any of the responsibility. The people of New Jersey have voted to basically repeal a law, so how can you, as a federal government or the court, basically say, ‘No, you have to enforce this law.’ Once again, in my mind, this seems like a valid argument.
SportsHandle: Both the state’s and Horsemen’s brief talks a decent amount about the league’s recent actions and statements that don’t quite jibe with the congressional intent of PASPA. They talk about the moves to Las Vegas, Adam Silver’s open support of sports wagering, league investment in the DFS industry. In your estimation, how much weight do these arguments carry?
Prof. Wolohan: I guess not much. It shows the hypocrisy of the leagues, where they’re so invested in FanDuel, they’re so invested in some of these other gambling ventures, If you go to Yankee Stadium, you see a Mohegan Sun sign in the outfield. They’ve got the WNBA playing games at a casino. The NHL is now in Vegas. The PAC-10 plays their basketball tournament in Vegas. They don’t have a team in Nevada, and yet they go play in Vegas.
Clearly everybody, the leagues depend on gambling. It makes football what it is. For them to say gambling is bad and we’ve got to keep it in just Nevada or Las Vegas seems pretty hypocritical, especially with their talking about moving to London where you can bet on anything, right? I guess I don’t see the legal significance of the argument, but it does kind of show the hypocrisy of what the league is trying to say, especially if their base argument is, we’ve got to protect the integrity of the sport. Well, that kind of goes away, doesn’t it?
SportsHandle: Of course, but I wonder how much, even though it’s a valid policy argument, how much it will move the justices if it’s not ultimately grounded in law.
Prof. Wolohan: Every case I’ve read going all the way back to the Delaware case, the courts have basically said, ‘We’re not going to look at the integrity of the game issue.’ The leagues say that this is an issue that’s important to them. Whether that’s right or wrong, we’re not even going to address that.’ No one’s really looked into the impact this gambling has on a league. Once again, if they did, I feel that gambling actually is important to the league, the NFL in particular benefits tremendously from television. People watch those games to see what the point spread is going to be, we watch the games because of FanDuel, we want to see how our players are doing. If there was no gambling and there’s a game with a 21-point spread and one team’s up by 28 points, the game’s over, but you might still be watching that game just to see if they can get within the 21 points.
SportsHandle: I hear that. Regarding the arguments, there’s other federalism lines of attack where they argue that PASPA enables an avoidance of political accountability. How do you think that point will resonate?
Prof. Wolohan: I think it’s a good one where they’re saying that the federal government gets to create rules that are impacting the states and the citizens of the states who have voted. Now you’re saying, okay, the federal government gets to sit back there with no accountability, well, I shouldn’t say that – the Congressmen can be voted out of office, but the people in Hawaii or the people in Arizona, their Congressmen aren’t going to be impacted by New Jersey citizens.
SportsHandle: Regarding the PASPA clause that allows the leagues to come in and obtain injunctions and shut down efforts such as New Jersey’s, the attorneys from the Horsemen write, “PASPA puts a gun in the hands of private sports organizations.” Do you agree with that assessment?
Prof. Wolohan: Yes, it gives the private leagues the power, but it’s something that’s out there, it’s the federal government that passed the law. They’re just basically saying that they were injured, and so there’s lots of laws out there where if you violate the federal law, private individuals can come in and prevent you from doing it. I guess I don’t necessarily buy that it gives the leagues any more weight or gives them that gun in the hand.
SportsHandle: Where do you expect the leagues to devote much of their attention in their brief on the merits?
Prof. Wolohan: Probably what they’ve been saying all along – that this is the federal law and that New Jersey’s in violation of it. Since New Jersey and everybody else seems to be arguing a violation of the Tenth Amendment, I guess they would argue, well, what they’ve always argued. That it hurts the integrity of the sport and so it’s bad for the sport. That was the intent of the law – to protect the leagues and to protect gambling. We want to prevent this type of behavior, we want to protect the citizens.
SportsHandle: Let’s say the court rules that PASPA is constitutional, what do you think would be the next phase of New Jersey’s almost decade long fight?
Prof. Wolohan: I think then it’s pretty much over. I’m not sure what else they can do. This is probably the most sympathetic venue they’re going to get to. I believe that once the Supreme Court asked for the briefs, they asked for the Justice Department’s interpretation. It seems like the Justice Department isn’t in favor of New Jersey’s position. I guess I don’t see them losing, but if they did lose, I think it’s over.
SportsHandle: I guess at that point, it might be incumbent upon the other states to take some action. West Virginia just the other day filed an amicus brief that was signed by officials from 19 other states–
Prof. Wolohan: And once again what the lower courts and the Third Circuit basically said is listen, if you don’t like it, it’s the law. If you don’t like it, have the federal government change it. The problem with that is, Congress seems to be busy doing other things. I can’t imagine them passing something now, or maybe this is something they all can get behind and they can repeal it.
SportsHandle: The issue does cut across red and blue states. If sports betting does become more widespread as a result of PASPA getting struck down, let’s suppose that the pro leagues get some stake in it, do you foresee players associations getting a cut of some of these potential revenues?
Prof. Wolohan: If the leagues get a piece, then it’s clearly going to go down to the players, right? Basketball, you’ve got basketball related income, that’s part of the CBA, that’s how the players get paid. That’s a percentage of income that they split with the league. The same thing with the NFL.
But I think once again, I’ve kind of talked about the integrity and how the league is hypocritical. I think they really do have an argument there, that they do have to make sure that the league and the sports are clean. I don’t see it as much at the professional level because they get paid so much, you know, for us to have Tom Brady throw a game, we’d have to pay him millions upon millions of dollars. Where I do see the problem is when you get down to the college levels, it’s easy to buy off a college player, right?
SportsHandle: A lot of college kids don’t have any money.
Prof. Wolohan: Yeah. If I go to one of the Syracuse basketball players, they’re favored by 10 points or 20 points or whatever, and say, ‘Listen, make it under the spread and here’s $20,000,’ that’ll be hard for a kid to turn down I think. He’s not losing the game, he’s just missing a free throw or two or missing a jump shot. The team still wins the game. I think that’s where the problem becomes. Once again, I think Vegas and the NCAA already work with this. They already track college games, they look for big money going down on one team and they look for trends in teams. I hope they could spot that.
SportsHandle: There were point shaving scandals in the 80’s that preceded PASPA, a Northwestern scandal in ’95 after PASPA.
Prof. Wolohan: Right. It happens all over the world. Gamblers look for players and they buy players. Could it happen? Sure, but it could happen today. I don’t think PASPA has anything to do with it, but I do believe they’d have to be more attentive to that because of the integrity issue. I think they could do that and I think they are doing that. If PASPA was overturned, where the leagues would have to be careful is just integrity, but the players would definitely get a piece of the pie at the pro level.