Might the federal sports betting ban be lifted?
Ryan Rodenberg
Special to ESPN.com
4/8/17
The legacy of the Professional and Amateur Sports Protection Act (PASPA), the federal sports betting ban enacted in 1992, will be at stake when the Trump administration soon makes its position known in a pending Supreme Court case that features the NCAA, NFL and other professional sports leagues against New Jersey Gov. Chris Christie.
Parties for both sides are scheduled to meet Monday with the U.S. Office of the Solicitor General in Washington, D.C., to discuss the issues. Trump recently nominated Noel Francisco to be the new U.S. solicitor general, the administration's top Supreme Court lawyer.
The solicitor general's office will then submit a brief to the Supreme Court, which is expected to decide whether to hear the case by the end of its current term in June.
At stake is whether more states can offer legal sports betting without running afoul of federal law.
Sports leagues have largely resisted any such expansion thus far. States such as Jersey and about a half-dozen others are currently exploring options they hope will bring in tax revenue and address a vast illegal sports wagering market estimated to be worth more than $100 billion nationwide.
The Department of Justice (DOJ), a part of President Donald Trump's executive branch, will chime in next.
The DOJ has taken a wide range of stances -- some of which are in conflict with each other -- on PASPA, according to documents reviewed by ESPN.
The documents, obtained after a search of public records, also reveal that Christie once defended the sports betting law in court while working at the DOJ. Since 2012, however, Christie has attempted to upend the federal sports betting ban -- set forth in PASPA -- in litigation against the NCAA, NBA, NFL, NHL and Major League Baseball.
With all three branches of the government primed to address sports betting -- Congress will likely hold hearings later this year to "harmonize" the nation's various sports betting laws -- the solicitor general's brief will likely be the next definitive step.
Francisco, if confirmed as solicitor general by the U.S. Senate, will have many options for his legal filing, as the DOJ has taken a number of positions on sports betting during PASPA's 25-year lifespan.
The sports betting landscape in 2017 differs wildly from 1992, too: The Oakland Raiders are set to move to Las Vegas, an NHL franchise will begin playing in Vegas this year, and NFL commissioner Roger Goodell recently acknowledged that legalized sports gambling could be "beneficial."
Here's a look at the evolution of PASPA over its 25-year existence:
Beginnings of the federal sports betting ban
PASPA got off to a rough start even before it was enacted.
After a Senate hearing on June 23, 1991, the DOJ went on the record to oppose the law.
"[T]he Department opposes the enactment of [PASPA] as drafted," wrote Assistant Attorney General W. Lee Rawls in a Sept. 24, 1991 letter to then-Sen. Joe Biden (D-Delaware). "Generally speaking, it is left to the states to decide whether to permit gambling activities based upon sporting events."
Sen. Charles Grassley (R-Iowa) opposed PASPA too, with his rebuke noted in the Congressional Record. Rep. Romano Mazzoli (D- Kentucky), looked into his crystal ball during a 1991 PASPA hearing.
"My reaction is that we're trying to close the barn door here after it's already been opened and a great many of the horses have escaped," said Mazzoli. "I just don't know whether we can corral those horses and put them back in the barn."
But it didn't matter. PASPA had the support of the major sports leagues and was approved by an overwhelming margin in the Senate and via a voice vote in the House. President George H.W. Bush signed the bill into law in 1992.
Former NBA player and U.S. Sen. Bill Bradley, the most vocal proponent of the bill, later explained the rationale for PASPA in an academic journal article.
"Athletes are not roulette chips, but sports gambling treats them as such," wrote Bradley. "If the dangers of state sponsored sports betting are not confronted, the character of sports and youngsters' view of them could be seriously threatened."
Early DOJ statement on sports betting ban
Prior to becoming governor of New Jersey, Christie served as the U.S. Attorney for New Jersey during George W. Bush's presidency.
And, in a twist, Christie appears to be the first Justice Department official tasked with upholding the federal sports betting ban in court. Christie's role took place during a 2007 legal case brought by a New Jersey citizen named James Flagler. Flagler alleged that PASPA was unconstitutional, and he sued the DOJ.
"Congress enacted [PASPA] originally sponsored by a New Jersey Senator," wrote Christie in a Feb. 20, 2007 court filing obtained by ESPN. "The statute did not affect States that had already legalized sports betting, including Nevada, Oregon and Delaware. New Jersey had an opportunity to legalize sports betting within a year. A bill was sponsored to legalize sports betting, that passed in the [New Jersey] Senate, but stalled and died in the General Assembly.
"This Court should respect the authority of Congress and the Statehouse and their decisions."
The judge agreed with Christie's position and dismissed Flagler's case in the DOJ's favor.
Sports betting positions during the Obama administration
On March 23, 2009, the DOJ was sued again over PASPA's sports betting ban.
"PASPA discriminates against New Jersey," wrote attorneys for state Sen. Raymond Lesniak of New Jersey and several trade groups in a complaint against former Attorney General Eric Holder.
The DOJ refuted the lawsuit's allegations and described PASPA's purpose.
"In October 1992, Congress enacted PASPA ... intending to further regulate interstate sports gambling and mitigate its negative effects by restricting the states where sports betting could take place," wrote DOJ attorneys in a July 20, 2009 court filing.
The DOJ prevailed in the litigation, but future Department of Justice statements on PASPA moved away from describing the law as one serving to "regulate" sports betting.
For example, former Solicitor General Donald Verrilli defended PASPA when an earlier iteration of the New Jersey legal case was pending before the Supreme Court three years ago.
"PASPA does not obligate States to enact any law or to implement or administer any federal regulatory requirement," wrote Verrilli and other DOJ attorneys in a May 2014 court filing. "Indeed, PASPA does not require States to do anything."
Framing the New Jersey case
Even the Third Circuit Court of Appeals judges who ruled against New Jersey in August 2016 pointed to criticism levied against PASPA.
"PASPA is not without its critics," the Third Circuit's opinion stated. "It has been criticized for prohibiting an activity, i.e., sports gambling, that its critics view as neither immoral nor dangerous. It has also been criticized for encouraging the spread of illegal sports gambling and for making it easier to fix games, since it precludes the transparency that accompanies legal activities."
The Third Circuit's ruling is the legal decision currently pending at the Supreme Court.
Trump's solicitor general nominee is now primed to weigh in, with several options before him.
Francisco could reaffirm the Obama administration's support of PASPA and oppose New Jersey's efforts. Or he could revert back to the DOJ's opposition of PASPA as reflected in the Justice Department's 1991 letter to then-Sen. Joe Biden. Or the new administration's solicitor general could take a different position altogether.
"In this case, the solicitor general will be responsible for the government's position recommending whether or not the court should take the case, and the solicitor general's choice on this matter will ultimately be reflected in the justices' decision," said Adam Feldman, a Supreme Court researcher at Columbia Law School.
Francisco is expected to file the legal brief sometime this spring.
ESPN staff writer David Purdum contributed reporting for this article.
Ryan Rodenberg
Special to ESPN.com
4/8/17
The legacy of the Professional and Amateur Sports Protection Act (PASPA), the federal sports betting ban enacted in 1992, will be at stake when the Trump administration soon makes its position known in a pending Supreme Court case that features the NCAA, NFL and other professional sports leagues against New Jersey Gov. Chris Christie.
Parties for both sides are scheduled to meet Monday with the U.S. Office of the Solicitor General in Washington, D.C., to discuss the issues. Trump recently nominated Noel Francisco to be the new U.S. solicitor general, the administration's top Supreme Court lawyer.
The solicitor general's office will then submit a brief to the Supreme Court, which is expected to decide whether to hear the case by the end of its current term in June.
At stake is whether more states can offer legal sports betting without running afoul of federal law.
Sports leagues have largely resisted any such expansion thus far. States such as Jersey and about a half-dozen others are currently exploring options they hope will bring in tax revenue and address a vast illegal sports wagering market estimated to be worth more than $100 billion nationwide.
The Department of Justice (DOJ), a part of President Donald Trump's executive branch, will chime in next.
The DOJ has taken a wide range of stances -- some of which are in conflict with each other -- on PASPA, according to documents reviewed by ESPN.
The documents, obtained after a search of public records, also reveal that Christie once defended the sports betting law in court while working at the DOJ. Since 2012, however, Christie has attempted to upend the federal sports betting ban -- set forth in PASPA -- in litigation against the NCAA, NBA, NFL, NHL and Major League Baseball.
With all three branches of the government primed to address sports betting -- Congress will likely hold hearings later this year to "harmonize" the nation's various sports betting laws -- the solicitor general's brief will likely be the next definitive step.
Francisco, if confirmed as solicitor general by the U.S. Senate, will have many options for his legal filing, as the DOJ has taken a number of positions on sports betting during PASPA's 25-year lifespan.
The sports betting landscape in 2017 differs wildly from 1992, too: The Oakland Raiders are set to move to Las Vegas, an NHL franchise will begin playing in Vegas this year, and NFL commissioner Roger Goodell recently acknowledged that legalized sports gambling could be "beneficial."
Here's a look at the evolution of PASPA over its 25-year existence:
Beginnings of the federal sports betting ban
PASPA got off to a rough start even before it was enacted.
After a Senate hearing on June 23, 1991, the DOJ went on the record to oppose the law.
"[T]he Department opposes the enactment of [PASPA] as drafted," wrote Assistant Attorney General W. Lee Rawls in a Sept. 24, 1991 letter to then-Sen. Joe Biden (D-Delaware). "Generally speaking, it is left to the states to decide whether to permit gambling activities based upon sporting events."
Sen. Charles Grassley (R-Iowa) opposed PASPA too, with his rebuke noted in the Congressional Record. Rep. Romano Mazzoli (D- Kentucky), looked into his crystal ball during a 1991 PASPA hearing.
"My reaction is that we're trying to close the barn door here after it's already been opened and a great many of the horses have escaped," said Mazzoli. "I just don't know whether we can corral those horses and put them back in the barn."
But it didn't matter. PASPA had the support of the major sports leagues and was approved by an overwhelming margin in the Senate and via a voice vote in the House. President George H.W. Bush signed the bill into law in 1992.
Former NBA player and U.S. Sen. Bill Bradley, the most vocal proponent of the bill, later explained the rationale for PASPA in an academic journal article.
"Athletes are not roulette chips, but sports gambling treats them as such," wrote Bradley. "If the dangers of state sponsored sports betting are not confronted, the character of sports and youngsters' view of them could be seriously threatened."
Early DOJ statement on sports betting ban
Prior to becoming governor of New Jersey, Christie served as the U.S. Attorney for New Jersey during George W. Bush's presidency.
And, in a twist, Christie appears to be the first Justice Department official tasked with upholding the federal sports betting ban in court. Christie's role took place during a 2007 legal case brought by a New Jersey citizen named James Flagler. Flagler alleged that PASPA was unconstitutional, and he sued the DOJ.
"Congress enacted [PASPA] originally sponsored by a New Jersey Senator," wrote Christie in a Feb. 20, 2007 court filing obtained by ESPN. "The statute did not affect States that had already legalized sports betting, including Nevada, Oregon and Delaware. New Jersey had an opportunity to legalize sports betting within a year. A bill was sponsored to legalize sports betting, that passed in the [New Jersey] Senate, but stalled and died in the General Assembly.
"This Court should respect the authority of Congress and the Statehouse and their decisions."
The judge agreed with Christie's position and dismissed Flagler's case in the DOJ's favor.
Sports betting positions during the Obama administration
On March 23, 2009, the DOJ was sued again over PASPA's sports betting ban.
"PASPA discriminates against New Jersey," wrote attorneys for state Sen. Raymond Lesniak of New Jersey and several trade groups in a complaint against former Attorney General Eric Holder.
The DOJ refuted the lawsuit's allegations and described PASPA's purpose.
"In October 1992, Congress enacted PASPA ... intending to further regulate interstate sports gambling and mitigate its negative effects by restricting the states where sports betting could take place," wrote DOJ attorneys in a July 20, 2009 court filing.
The DOJ prevailed in the litigation, but future Department of Justice statements on PASPA moved away from describing the law as one serving to "regulate" sports betting.
For example, former Solicitor General Donald Verrilli defended PASPA when an earlier iteration of the New Jersey legal case was pending before the Supreme Court three years ago.
"PASPA does not obligate States to enact any law or to implement or administer any federal regulatory requirement," wrote Verrilli and other DOJ attorneys in a May 2014 court filing. "Indeed, PASPA does not require States to do anything."
Framing the New Jersey case
Even the Third Circuit Court of Appeals judges who ruled against New Jersey in August 2016 pointed to criticism levied against PASPA.
"PASPA is not without its critics," the Third Circuit's opinion stated. "It has been criticized for prohibiting an activity, i.e., sports gambling, that its critics view as neither immoral nor dangerous. It has also been criticized for encouraging the spread of illegal sports gambling and for making it easier to fix games, since it precludes the transparency that accompanies legal activities."
The Third Circuit's ruling is the legal decision currently pending at the Supreme Court.
Trump's solicitor general nominee is now primed to weigh in, with several options before him.
Francisco could reaffirm the Obama administration's support of PASPA and oppose New Jersey's efforts. Or he could revert back to the DOJ's opposition of PASPA as reflected in the Justice Department's 1991 letter to then-Sen. Joe Biden. Or the new administration's solicitor general could take a different position altogether.
"In this case, the solicitor general will be responsible for the government's position recommending whether or not the court should take the case, and the solicitor general's choice on this matter will ultimately be reflected in the justices' decision," said Adam Feldman, a Supreme Court researcher at Columbia Law School.
Francisco is expected to file the legal brief sometime this spring.
ESPN staff writer David Purdum contributed reporting for this article.
