States Need Realistic Expectations For Sports Betting

Law360, May 24, 2018

On May 14, 2018, the U.S. Supreme Court entered its decision in the Murphy v. National Collegiate Athletic Association case removing the federal ban on sports betting in the U.S. The Professional and Amateur Sports Protection Act of 1992 grandfathered sports betting in only four states, Nevada, Oregon, Delaware and Montana. New Jersey’s myriad challenges to PASPA, and the resultant Supreme Court ruling of May 14, struck PASPA down. States are now free to legalize and regulate sports betting.

In the run-up to the court’s decision, many state officials across the country viewed legalized sports betting as the answer to their budgetary problems. The unofficial estimate of the total amount wagered in sports betting in the U.S. was staggering, with the sum of over $150 billion bandied about. Hence, the rush in various states that offer casino gambling to enact statutes and regulations in order to offer sports betting in their casinos.

In retrospect, as with most things in life, the decision in Murphy was entirely predictable. The court’s conservative majority continued its trend of deferring matters to the states. Whether the court will follow this precedent with more politically charged issues such as legalized marijuana or right-to-die, remains to be seen.

In its attempt to carve out exceptions to existing sports betting jurisdictions, Congress in PASPA dictated that state legislatures were prohibited from authorizing sports gambling. The court said that clearly Congress had the constitutional authority to ban sports betting in the U.S. outright, but the Constitution prohibits Congress from issuing orders directly to the states, or from commandeering the state legislative process. The Constitution grants Congress the “power to regulate individuals and not states,” and PASPA violated that dictate.

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