Supreme Court Sports Betting Case, Analyzed By Attorney Who’s Defeated MLBBy Brett Smiley | Published: November 29, 2017 at 7:00 am
In 2014, veteran litigator Rudy Telscher stood before Chief Justice John G. Roberts’ bench with a clear picture of his main points and the knowledge that the nine justices could probe the case from any angle at any time. He won a 9-0 Supreme Court decision in Octane Fitness v. ICON Health & Fitness, reversing the lower court’s ruling (you can listen to the oral argument here.)
In a separate case in 2006 that nearly reached the high court, Telscher represented CDM Fantasy Sports against Major League Baseball in a seminal case that prevented MLB from monopolizing statistical data and the fantasy sports industry. That ruling helped pave the way for the eventual explosion of the daily fantasy sports industry. If you dabble in DFS, you owe Telscher a tip of the cap.
A highly experienced and respected litigator specializing in intellectual property law, Telscher is among the lawyers closely following Christie v NCAA (aka the “Supreme Court Sports Betting Case”). He’s familiar with the high-powered attorneys arguing the case, the facts of the case, as well as Supreme Court procedure. As such, he provides some excellent insight about how arguments may unfold and the case as a whole.
Veteran Litigator Rudy Telscher Breaks Down Supreme Court Sports Betting Case (Christie v NCAA), Oral Argument, And Provides Insight on Supreme Court Procedure
SportsHandle (SH): This case has quite a history, originating in 2009. Looking at the facts of the case and the arguments against PASPA (the 1992 federal law, the Professional and Amateur Sports Betting Act), what do you think will be the focus of the Justices’ questioning?
Rudy Telscher (RT): Based on the specific question over which they took the case, it seems to me that it will be the constitutionality of the federal law. If you’re a state and you have a law that prohibits gambling, can the federal government issue a law that says the states can’t change their law?
What New Jersey is arguing is that the federal rule that’s trying to be enforced is, according to them at least, unprecedented in that a federal government is telling a state what it can do with respect to private party conduct. One of the arguments they raised below that they’re not raising now, which was the 14th Amendment, had to do with equal protection. It does strike me as a bit odd that you can have Las Vegas, which has gambling, and various areas that have gambling, and yet a state doesn’t have the ability to decide for themselves where gambling will and will not be allowed.
SH: New Jersey touched on an equal sovereignty argument in their briefs here, although much less than I had anticipated based on what came before. What’s your overall estimation of the constitutional significance of this case?
RT: It’s got significance at two levels. The first is, to what extent is the federal government able to regulate states’ rights? Ordinarily there has to be some argument for effect on commerce, but if you take that argument too far, what doesn’t affect commerce anymore, right? We have the Internet, so everything that anybody does is across the entire country. So to what extent can the federal government regulate something like gambling, and the extent that applies to other areas of the federal government’s ability to regulate state action.
Then, two, it would be hard not to recognize that gambling is a big deal. You’ve got sports gambling, you’ve got fantasy sports gambling. Built into the fabric of America is bingo, raffles, so we’re a betting society. We have this notion that gambling is illegal, but we’ve seen over the last two to three decades an erosion of the laws against gambling. There are now states where if you miraculously build a moat around your boat, you can gamble on a boat. What the heck is that all about? Why does it matter if I’m in a building or a boat? You see this erosion of the rules against gambling and so I’m fascinated to see just how this case is going to affect the landscape of gambling.
SH: So, the attorneys here who will do most of the speaking, Ted Olson for New Jersey and Paul Clement for the leagues, obviously are incredibly experienced. Olson having been a Solicitor General arguing 60-something cases total, and Clement also a former Solicitor General and I don’t think anyone’s argued in the Supreme Court more than him since 2000. The question is, are you familiar with their practice and oratory styles?
RT: Yes, I am, and this is the type of argument, because it’s purely constitutional, where you would expect there to be a Supreme Court specialist. Many issues that go before the court, and my case was one of just an example, is the type of case involving what’s the standard at the District Court level. How is that standard a problem now? What standard are we proposing, and how will that now affect matters adversely at the District Court? When you get into an area like this, where the argument is about constitutional principles, this is an area where I would expect Supreme Court specialists to be involved, and they are.
SH: Here we also have the Solicitor General’s involvement, as in your case. Given the particular subject matter, what impact, if any, do you think it will have on Olson and Clements’ arguments?
RT: If the Solicitor General is backing your position, first of all, that’s going to help. The Supreme Court doesn’t always follow the direction of the Solicitor General, so it’s another view. It’s good to have that view on your side.
Certainly we had a number of meetings at the Justice Department, meeting with the Solicitor General and other lawyers from the government, because you want to make sure that your efforts are coordinated. You have only a certain amount of argument time.
We had a strategy involved for where the Solicitor General wanted to focus with their time. They had 10 minutes of argument time and they got 10 minutes of our time, so we had 20 minutes. You need to be strategic about who’s going to be doing the heavy lifting on what part. You don’t have any control over what the Supreme Court’s going to ask you, but you can do your best to try to have a focus for your argument that dovetails with what the other party’s doing.
SH: So we can expect that Clement and the Solicitor General have or will conference about how to manage that?
RT: I would be surprised if that’s not the case, yes. That was the situation in our case.
SH: You also had the experience in CDM Fantasy Sports of going up against one of the pro sports league, Major League Baseball, which is a party to this case too. Is there anything you found unique about opposing MLB or a pro sports league in general?
RT: Whenever you’re up against these organizations, which are heavily funded, you can expect them to aggressively litigate their positions. They also, for better or worse, have a certain level of monopolistic power. The NCAA certainly does. Major League Baseball Players’ Association did as well with respect to the rights that were governed. Those are just dynamics that are in play.
SH: Shifting a bit more to your experience and Supreme Court practice. I read a funny anecdote the other day by an attorney who said that he and his colleague were poring over every word of their opening sentence, and finally for the opening sentence chose “especially” instead of “particularly.” Then in court, before the attorney could get out a second sentence, Chief Justice Roberts hammered him over the word “especially.” The question is, did you decide on your first sentence almost word for word?
RT: That’s a great question, and I listen to many oral arguments. In getting ready for mine I had a sense of what amount of time I would have. Anywhere from 30 to 45 seconds is about what you’re going to get. What you don’t want to do is only have one sentence in mind, because if you’re done with that sentence and they haven’t interrupted you yet, now you’re thinking about what your next point’s going to be.
So my recommendation to anybody would be to have a minute’s worth of material, understanding that you’re probably going to get through about half of it. Make sure you get out your first couple of sentences and make sure they’re strong. What I thought about, and I reflected … it took me about four hours to write my opening sentences. What I was thinking about is, considering all of the briefing, not only from petitioner and respondent, we had 15 amicus briefs that were filed. Considering all of that, what is the real nub of the issue? What is on the Supreme Court’s mind after having looked at all of this?
In my particular case I had about three to four sentences’ worth of material. It would have taken, I think, 45 seconds to do, and I actually got all three sentences out, and as I finished my third sentence, with a pregnant pause, the first question came.
SH: Justice Kennedy if I remember correct.
RT: I either got hit by Kennedy first, or was it Ginsburg? It was one of the two.
SH: I think it was Kennedy and then Ginsburg chimed in a little bit later.
RT: Yeah, and in my opening I actually went with something at the end of it that was slightly controversial that led to Ginsburg’s question, which I totally expected.
SH: You had practiced a solid 20 years before this case, but I suppose still you may have felt some nerves, dry mouth, before or during your argument. Did you feel any of that?
RT: Surprisingly, before any appellate argument, I’m going to have what I would consider to be a healthy level of anxiety, where I’m nervous. I mean just anxious, I don’t mean nervous that I’m afraid to go argue, but just a certain level of anxiousness, not knowing what questions are going to come.
At the Supreme Court, I can tell you that on the morning I walked in, it’s a packed courthouse as always at the Supreme Court. I remember walking through and it’s an elegant room and thinking to myself, ‘Man, what a privilege and how amazing is this to be arguing before this court?’ As I sat down, I knew I wanted to go to the podium with no notes, and I did. I had the normal level of anxiousness. I was not afraid or not more anxious than normal. The one thing that I would tell any advocate who’s starting to enter into the appellate world, whether it be a Supreme Court or just a regular appellate argument, is understand that within about 15 to 20 seconds of speaking they’re going to be asking you questions, and you’ve lived your case, right? So you know it.
So relax, and you’re going to start answering questions and it’ll go quicker than you ever thought it could go, and you’re going to enjoy the ride.
For me, that’s what it was. I had the same level of anxiousness that I always have, but I knew that as soon as I got into the questioning that it would be mostly a blur. You’re going to answer the questions that are presented, and that’s what you’re always trying to do in an appellate argument, is answer the question that the judge asked you, and then you want to try to pivot back to your theme.
SH: After oral argument, did you feel more positive or less positive about winning a favorable decision?
RT: I felt that it was going to go my way after the oral argument. Just based on the questions posed both to me and my opponent, I felt that the Supreme Court understood that the existing standard was flawed and that something else was needed. Whether they were going to adopt my exact wordings that I’d proposed, I wasn’t confident about, but I felt that they would change the law in a way that would improve the problem that we had raised, and that’s how it turned out.
SH: Based on what you just said about just knowing and having lived the case, I imagine you were prepared for just about anything on the fly, but did you have a mental checklist of things that you wanted to hit on and go through it in your mind as it was progressing?
RT: Yes. I had a number of themes that were central to my argument and, I thought, central to winning. Again, when I was getting questions, you always want to answer directly to questions being presented, but I always had in the back of my mind the notion that I would tip it back to the points. If you could do it respectfully and not look like you were dodging, answer their question then pivot back to your themes. I did that for sure.
SH: Can you share something unique or special about arguing in the Supreme Court that the average person probably does not know?
RT: That’s a good question. That the average person doesn’t know.
SH: Could be anything, from just style or construction of the lectern.
RT: I don’t know how apparent this is to most people, but you get into these arguments and you’re generally looking to see which justices are aligned with your positions and which ones aren’t. If you can identify that, then you begin to argue your case for the justices who are on your side, so that when they go back behind the doors, your justices are armed with the ammunition they need to do to take on the other justices. So that you have a decision with the majority of the justices in your favor. I don’t know how apparent that would be to most people.
SH: Last question. Back to the case at hand, can I get a prediction on which side will prevail?
RT: My prediction and hope is that they will find that the federal government restriction is unconstitutional.
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