Volume: 16 Issue: 7
The Supreme Court of the United States (‘SCOTUS’) announced on 27 June 2017 that it is to hear New Jersey’s appeal to allow sports betting in casinos and racetracks within the state, an activity currently prohibited in US states, except four states granted immunity, by the federal Professional and Amateur Sports Protection Act 1992 (‘PASPA’).
In attempting to find a legal way to offer sports gambling, New Jersey has faced opposition from the National Collegiate Athletic Association and US sports leagues. Most recently it received an en banc hearing from the US Court of Appeals for the Third Circuit, resulting in the Court ruling on 9 August 2016 to invalidate a 2014 New Jersey law allowing sports betting. New Jersey’s request for an appeal hearing at SCOTUS was widely expected to end in refusal, particularly after the U.S. Solicitor General’s Office recommended on 24 May 2017 that SCOTUS not hear the case; such recommendations are typically followed by SCOTUS. “With the case’s history, the fact that SCOTUS decided to take up the case really beat the odds,” said Jeff Ifrah, Founding Member at Ifrah Law. “On the other hand, it’s not a surprise that SCOTUS decided to take the case because of the timing. There has been a huge shift in public opinion about gambling in the United States since New Jersey set out to legalise sports betting for its residents. The popularity and prevalence of fantasy sports, online poker, and mobile prize-based gaming has paved the way for acceptance and interest by consumers - and even the leagues themselves.”
A new set of briefs must now be filed in the case, with New Jersey’s brief due by 10 August 2017; oral argument in the case is likely to take place in autumn 2017, with a decision not expected until 2018, but likely not later than June 2018. “I think the likelihood for SCOTUS to rule in New Jersey’s favour is strong,” says Ifrah. “The timing is very promising. There is a hospitable environment for a regulated sports betting industry to flourish: we have the technology to ensure consumer safety and ethical operations and the legislative framework from casino, poker and fantasy sports betting to create workable regulation. Also, there is good data which shows what the positive economic impact would be for states via tax revenues and market growth.” Commentators have also pointed to the data around the high overturn rate for SCOTUS last year, which is above 80%, boding well for a possible overturn of PASPA.
Ifrah also believes that a New Jersey victory in this case could translate into legal online sports betting in the US. “I think it’s very likely that SCOTUS is interested in hearing this case in order to repeal PASPA and uphold states’ rights guaranteed by the Tenth Amendment,” Ifrah says. “If that happens, it will open the gates for US legalised online sports betting.”