The Professional and Amateur Sports Protection Act (PASPA) of 1992, also known as the Bradley Act, expressly prohibits sports betting nationwide with four exceptions: Oregon, Delaware, Montana, and, most notably, Nevada. Nevertheless, gambling remains an enormous industry, with the American Gaming Association estimating that “as much as $90 billion would be wagered on the NFL… season” alone, including “as much as $4.7 billion” on the Super Bowl, with 97% of it done illegally. Betting on sports has long been a contentious issue in the U.S. but it may soon become a moot point if New Jersey gets its way.
In 2011, New Jersey voters approved the legalization of sports betting and a law was passed allowing sports wagering at racetracks and casinos beginning in 2012. The four major sports leagues as well as the NCAA sued to block the law, arguing sports betting would inhibit the integrity of sports and lead to game fixing amongst players and coaches. The federal courts ultimately struck down the law as a violation of the Bradley Act.
Not to be discouraged, three years later then-New Jersey Governor Chris Christie attempted to legalize sports betting again, this time by prohibiting sports gambling everywhere except at casinos and racetracks. However, the four major sports leagues, the NCAA, and the U.S. Department of Justice once again successfully argued that the laws violated the Bradley Act.
In 2016, lawyers representing New Jersey argued the Bradley Act violated the U.S. Constitution, and this time other states are taking notice. As reported by Law360, Mississippi, West Virginia, Louisiana, Wisconsin, and Arizona have joined New Jersey in its efforts to legalize sports betting and filed amici briefs in support of the Garden State’s position.
The case is now knocking on the door of the Supreme Court but it may be a while before the issue is ever discussed before the Justices. According to Law360, while many commentators assumed SCOTUS would quickly and quietly deny certiorari, leaving the Third Circuit’s dismissal of the state’s challenge to stand, the Court recently invited the Trump Administration to weigh in before making a decision. The StarTribune reported that the Court has put off deciding whether to hear New Jersey’s challenge to PASPA until the Solicitor General gives an opinion on the matter. Unfortunately for those anxious to see if the case will proceed any further, President Trump’s initial pick for Solicitor General, Chuck Cooper, recently withdrew from consideration, leaving the critical position unfilled.
In the interim, commentators – and those in the betting industry – eagerly await the Trump Administration’s views on the subject. President Trump, the first U.S. President to ever own casinos, publicly supported the legalization of sports betting in the 1990s, a time when he owned casinos in New Jersey’s Atlantic City. Notably however, he never addressed the subject during his presidential campaign and many elected GOP officials oppose sports betting on moral grounds. Even if he privately supports legalizing sports betting, Trump has been tiptoeing around the issue and stated in an interview, “[s]o we wouldn’t do it lightly, I can tell you. It will be studied very carefully. But I would want to have a lot of input from a lot of different people.”
While Trump maintains a publicly neutral stance and the Supreme Court awaits a response from the new Solicitor General, there is mounting support outside of New Jersey supporting lifting the ban on sports betting nationwide. New York state legislators recently considered a bill that would amend the state constitution to allow sports betting, thus potentially setting up another showdown in the courts. Additionally, NBA Commissioner Adam Silver has publicly advocated for a federally regulated system of legal sports betting, an alternative to New Jersey’s proposed system of state-by-state regulation. Lastly, Major League Baseball Commissioner Rob Manfred, at the Yahoo Finance All Markets Summit, said, “[w]e are reexamining our stance on gambling. It’s a conversation that’s ongoing with the owners.” Whether the Supreme Court will strike down the Bradley Act and allow nationwide sports gambling remains to be seen but Manfred’s comments may signal a change on the sports gambling horizon.
Kendall Howell and Jacob Reinig are Sports Highlight Contributors for the Harvard Journal of Sports and Entertainment Law and current first year students at Harvard Law School (Class of 2019).