NBA Pushes to Legalize Gambling in the Wake of Christie v. NCAA
In the wake of the United States Supreme Court’s decision in Christie v. NCAA, the National Basketball Association (NBA) has formally requested a change in law that would legalize sports betting and secure for the NBA 1% of all those revenues.[1] While Dan Spillane, an attorney for the NBA, testified in front of a New York State Senate Committee to make clear that the NBA supports legalizing the sports betting industry, the NBA has indicated that its aspirations span beyond New York.[2] Indeed, the NBA’s goal is to lobby Congress to pass a national sports betting bill.[3] This is where the United States Supreme Court comes into the picture.
Sports betting is currently prohibited at the national level by the Professional and Amateur Sports Protection Act (PASPA). However, in 2014 New Jersey passed a law that contravenes the federal law to some extent by allowing New Jersey casinos and horse-betting tracks to legally offer sports betting.[4] While there are always a plethora of potential outcomes for each case the Supreme Court decides, the decision, expected to be released in the next six months, will likely track one of three paths.[5] First, the Supreme Court could rule that PASPA is constitutional and that New Jersey’s law, in contravention of PASPA, must be struck down.[6] Second, the Supreme Court could rule that PASPA is unconstitutional, as it commandeers states into acting on behalf of the federal government, and that as such the New Jersey law need not be struck down.[7] Lastly, the Supreme Court could rule that, although PASPA is constitutional, the way in which New Jersey’s law contravenes it does not require its being struck down.[8] This would mean that, although PASPA is constitutional, states can enact laws similar to New Jersey’s without violating federal law.[9] If the Supreme Court strikes down PASPA, it will create an uphill battle for the NBA to lobby for the enactment of a national law legalizing gambling, as this would place Congress in somewhat direct opposition to the judicial branch, creating horizontal separation of powers issues.
While it is difficult to predict exactly how the Supreme Court is going to decide the case, it appears that, based on the justices’ reactions during the December 4 oral arguments, a majority of the justices favor striking down the PASPA.[10] Justice Breyer, for example, proclaimed that the law commandeers the states, which the 10th amendment prohibits.[11] Justice Kagan appeared to stand on the other side, viewing PASPA not as a display of impressible commandeering of the states, but rather Congress merely preempting state law, something she believes occurs regularly.[12]
Another key part of the issue is the reasons behind the NBA’s change of opinion. For one, NBA commissioner Adam Silver has cited states’ desires to boost their economies.[13] He has gone as far as to say that the legalization of gambling is “inevitable” because it would provide an economic boost to cash-strapped states.[14] Second, Silver acknowledges the reality that current laws are not successfully stopping illegal gambling.[15] In fact, while less than $5 billion is gambled annually in Nevada, approximately $150 billion is gambled illegally in other states.[16] Finally, Silver believes the United States should look to “global trends,” particularly in England, where legal bets can be placed on smartphones, at stadium kiosks, and on TV remote controls.[17] Ultimately, this is an issue of great intrigue and it will be important to monitor its progression and outcome.
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