Christie v. NCAA: This is Not Just About Sports Betting.

This post is not about sports betting.  Just kidding.   Of course Christie v. NCAA is about sports betting: whether New Jersey can deregulate sports betting at its casinos.

But to the Supreme Court this is largely a case about states’ rights.  The federal government and state governments each have their respective spheres of authority.  The federal government can regulate activity with interstate impacts (like migratory birds or prohibiting sports wagering using wire communications across state lines), or incentivize a state to adopt or refrain from a particular policy within a state (like raising the drinking age to 21).

But the federal Professional and Amateur Sports Protection Act of 1992 (“PASPA”) does neither.  Instead PASPA prohibits a state from legalizing and licensing sports wagering within state boundaries, triggering the primary question in Christie: can the federal government “commander” state policy and tell New Jersey how to regulate New Jersey citizens when the federal government has chosen not to prohibit sports betting nationwide?   How this question is answered could impact not only sports gambling, but also the regulation of guns, pharmaceuticals, business and occupational licensing, and how states participate in federal programs.

For those interested in sports wagering, one of the most important questions in Christie arises from the fact that to avoid PASPA, rather than legalize and regulate sports wagering, New Jersey partially repealed its laws on sports wagering permitting its existing gambling licensees to offer sports wagering without state regulation. If New Jersey wins will the decision permit states only to deregulate sports wagering, or will PASPA be struck down in its entirety leaving states free to legalize, license and regulate sports wagering?  This question alone may spell the difference between many states legalizing and regulating sports wagering, or refraining from changing their prohibitory laws only to leave a largely unregulated product.  The scope of the decision also may influence whether the federal government takes up the regulation of sports wagering.

There are also other issues lurking in the wings that the Court may discuss but not necessarily rule upon.   While PASPA grandfathered in a few states that already offered sports wagering and New Jersey did have a one year window after PASPA’s adoption to permit and regulate sports wagering, PASPA prohibits the current government of New Jersey and its current voters from changing New Jersey laws.  Can federal law prohibit a state from changing its mind on how to regulate its own citizens?  Similarly, does PASPA violate the equal sovereignty of the states by not treating all states equally?  Or could the Court analogize this case to equal protection decisions which permit grandfathering some participants?

How the Supreme Court frames these issues and the remedies will have broad implications for sports wagering and the relationship between the federal government and the states.  We will find out more on Monday when the Court hears oral arguments in Christie. 

Article by David Fried