What now for the New Jersey sports betting case?

After two months of holding our breath, sports bettors exhaled a collective sigh of disappointment on Tuesday. The U.S. Department of Justice filed intent to join the suit by the NCAA and the major pro sports leagues against the state of New Jersey to halt it from legalizing sports betting.

Disappointing, but it depends on who you ask as to whether or not this was expected.

"I didn't expect the Justice Department to come in and intervene in the case, but it’s no great moment,” State Sen. Ray Lesniak told the New Jersey Star-Ledger. Lesniak is the prime sponsor of the legislation.

“It would be very unusual for the Department of Justice to decide not to defend the constitutionality of a statute," Bernard Bell, a law Professor at Rutgers University told The Atlantic City Press this week.

The filing, the DOJ wrote, was "for the purpose of defending the constitutional challenges to the Professional and Amateur Sports Protection Act” made by the state and it came on the final day of deadline to do so given by U.S. District Court Judge Michael Shipp.

The DOJ now has until Feb. 1 to respond to the constitutionality claims and oral arguments will be heard on Valentine’s Day.

So where does the case sit now for New Jersey and when would be the earliest we might see legalized sports wagering there?

To help explain it all, I contacted Griffin Finan (@G_Finan), an associate at Ifrah Law in Washington D.C. who specializes in gaming law, and Brad Polizzano (@taxdood), a New York City tax attorney & accountant who also focuses on gaming.  Here’s what they had to say: 

JC: In short, how much does the intervention of the DOJ hurt New Jersey’s cause/help the cause of the leagues?

GF (Mr. Finan):  Before the DOJ intervened, both sides were already well represented by quality counsel with former Solicitor General Ted Olson representing New Jersey and the leagues represented by Paul Clement who succeeded Olson as Solicitor General. The arguments in the case have not changed, but the persuasive effect that they have may have been altered by DOJ intervening. DOJ intervening is not dispositive, but a federal judge may be more persuaded by the arguments on the constitutionality of the statute if they are presented by DOJ.

JC: On the issue of whether the leagues have ‘standing’ in this case. We know the judge already ruled they do have standing, but can you explain why it’s worth noting now?

Mr. Polizzano: If the DOJ had joined the case at the outset, then New Jersey likely would not have raised the standing issue at all. The Department of Justice is charged with enforcing and protecting federal laws. The DOJ clearly has standing in a case as a plaintiff if the case involves the alleged violation of a federal law, such as PASPA.

Of course, it's possible that New Jersey would have nevertheless filed a motion to dismiss the NFL et al as parties from the case on the basis of lack of standing. But even if New Jersey prevailed on that issue against the professional sports leagues (which it ultimately didn't), the case still would have proceeded on the merits - as it is now - against the DOJ as plaintiff.  

JC: Why did the DOJ wait until the 11th hour to intervene when they were given a 60-day deadline? 

GF: I don't think that there is too much to read into the DOJ decision to wait until the deadline. I think it is largely reflective of their internal procedures to meet deadlines as they arise and needing to meet those deadlines with limited resources. 

JC: Are there any other prominent federal laws you can think of that make exceptions for only a handful of states or just one state?

GF: There are no other prominent federal laws that I can think of that make an exception for a handful of states in the way PASPA does. The state has argued in court papers that this is unequal treatment of the states, which violates the principle that all states enjoy equal sovereignty. I expect that New Jersey will emphasize this point during oral arguments. 

JC: On a bigger picture scale, if everything goes New Jersey’s way, what’s a realistic timeline we could see legalized sports betting in the state?

GF: Any decision made by the district court in New Jersey could be appealed to the U.S. Court of Appeals for the Third Circuit. I expect an appeal from whichever side loses in the district court. Any decision from the Third Circuit could be appealed to the U.S. Supreme Court, which would have the option to decide if they want to hear the case. The appeals process could take significant time to complete.

The state would be free to implement the law while the appeal is pending, but the leagues could ask for the court to issue a stay or an injunction to prevent the state from moving forward with the law during the appeals process. Additionally, in order to offer sports betting an operator would have to apply to the state and be granted a license. That process will take some time, but would not dramatically slow down an operator from offering sports betting. 

Additionally, if New Jersey wins then the decision opens up the whole country to sports betting. Any other state would be free to pass their own sports betting law and I imagine that many states would look at it because of the potential for revenue and job creation.  

JC: If everything goes the leagues’ way, what’s next? Will it be up to each state to take on this law and would there be any point with this precedent?
  

GF: If the court rules in favor of the leagues, I would expect New Jersey to appeal the decision to the Third Circuit and it would follow the same appeals process that I outlined above. 

In theory, another state could pass a law, as New Jersey did, that is in direct contravention with PASPA and a district court outside of the Third Circuit would not be bound by the decision in this case but it would be very persuasive and hard for me to envision that a state would succeed or even try taking this route. Otherwise, it would take Congress passing a new law that altered PASPA to allow for states to pass their own gambling laws. 

The leagues have already succeeded in getting this case delayed until after the Super Bowl.  If they lose I expect the leagues to continue to use tactics intended to delay the process.

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Posted by glenndef62
1 year ago

How can the Feds justify the allowing of Nevada with the disallowing of NJ?
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Posted by ericSMITH
1 year ago

I'd much rather have an online account with a US based book (Caesars for instance). But due to stupidity from our government my business goes elsewhere. Some day the US will realize that Americans are sending millions of dollars every day to Costa Rica.
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Posted by mikeb21
1 year ago

the biggest joke of all is that casino in newyork called wall st. if thats not legal gambling what is.
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Posted by JRebel23
1 year ago

The leagues may delay it for awhile, but sooner or later it will be ruled unconstitutional as to have a law that exists in one state that other states can't invoke for theirs if they so choose. It's like saying all of a sudden certain states can't have registered guns, but some can. Same principal. The states have the final say, or it's discrimination, period.
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Posted by cashadvance
1 year ago

SPOT ON
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Posted by MTFN50
1 year ago

Big Blue Really? Now we will have all theses weed heads blowing there checks on sports betting .That statementis as dumb as the one I read on the forum on how the NFL fixed the games so the brothers will play in the super bowl. Just because its legal will not increase the amount of people first ,who smoke weed ,and second, gamble on sports. Those of us who do either or both have been doing it with no reprocussions for years The fact that its legal when it comes to weed if anything might slow some people down from smoking ,because its gonna be more expensive to buy.And as for Sports, legalizing it in the casino ,isnt a big deal lhe gambling that goes on is 90%online at this point.The only way for this country to profit ,as it should on gambling is legalizing it across the board . Leave the weed where it is and legalize all forms of gambling live and online
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Posted by bIGbLuephantom
1 year ago

"All of the jobs that would create. And if we could couple that with poker and marijuana legalization it would go a long way toward this nation climbing out of the hole we're in." - SickCallREf so each state would have a bunch of weed heads, blowing their checks on legalized gambling...the only winners in that would be the states and the gaming operators
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Posted by SickCallREf
1 year ago

Are you serious? Like that would only happen if pot and gambling were legalized. I though it would be obvious to most that there's plenty of that going on already. The difference is now in most states people can still be prosecuted for gambling and marijuana.Not to mention what the tax benefits would do for our schools and education.And abuse overall would be easier detected because this stuff would be more out in the open. You should think more outside of the box. If someone "chooses" to blow it all on weed and gambling that should be on them. It shouldn't hamper my right to "choose"
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Posted by ChurchMinister
1 year ago

A fukin men!
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Posted by SickCallREf
1 year ago

Sounds to me like Jersey will win their arguement based on unequal treatment of the states. You would think that is a bigger deal than what sports leagues interests are. Just imagine what it would do for the economy if every state picked it up. All of the jobs that would create. And if we could couple that with poker and marijuana legalization it would go a long way torward this nation climbing out of the hole we're in.
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Posted by KJK
1 year ago

SCREW THE DOJ WHAT RIGHT DOES THE GOVERNMENT HAVE TO TELL US WHAT TO DO WITH OUR MONEY THEY TAKE ENOUGH IN TAXES. CAN WE TELL THEM SCREW YOU WE ARENT PAYING TAXES. ALL GAMBLERS MUST UNITE AND FIGHT THIS CRAP. IF THERE IS A BIG ENOUGH VOICE IT WILL CHANGE.AS FAR AS THE SPORT LEAGUES THERE A**HOLES IF IT WASNT FOR GAMBLING NO ONE WOULD WATCH THEM
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Posted by veronica27
1 year ago

at least nj has live dealers and real cards .. some casinos have it all computerized .
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Posted by rubberneck
1 year ago

NJ has ZERO chance of winning now-that will make all the local books happy. Too bad the NFL worries about this case but most former players are broke and have health problems and they could care less
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Posted by garretdoherty
1 year ago

guns legal betting not!!
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Posted by Tigermike1975
1 year ago

Anyone who wants the government involved in anything is stupid. It is better the way it is now, it is not hard to get action and no governmental agencies with their hands out for your dollars.
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Posted by budwiser
1 year ago

England has wagering all across their country, never hurt the Premier League. We have Vegas, never hurt any of the sports leagues. And yet, the judge Shipp, the leagues claim it will damage them. And the DOJ thinks it's Constitutional that only certain states should be allow wagering on events. How ignorant an argument can you seriously make. Let's allow sports wagering in New Jersey, so they can get their desperately-needed $, and let's allow people to have the freedom to entertain themselves with their own $, as adults, if they so choose. We're supposed to be a free country, and sometimes we need to be reminded of that. We're not supposed to be run by what the league thinks is best, or what the government thinks is best. We're supposed to be able to make individual choices.
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Top Response

Posted by KJK
1 year ago

"SCREW THE DOJ WHAT RIGHT DOES THE GOVERNMENT HAVE TO TELL US WHAT TO DO WITH OUR MONEY THEY TAKE ENOUGH IN TAXES. CAN WE TELL THEM SCREW YOU WE ARENT PAYING TAXES. ALL GAMBLERS MUST UNITE AND FIGHT THIS CRAP. IF THERE IS A BIG ENOUGH VOICE IT WILL CH..."