The fight to legalize sports gambling has been famously led by legislators in New Jersey, whose recent attempts to pass a state law allowing it in the Garden State were initially rejected by the courts as a violation of the federal Professional and Amateur Sports Protection Act of 1992. New Jersey’s case is currently pending on appeal in the Third Circuit Court of Appeals with a decision expected any day.
The plaintiffs in the lawsuit against New Jersey are the four major professional sports leagues, the NBA, NFL, MLB and NHL, along with the NCAA and the U.S. Department of Justice. All have fought hard over the past few years to oppose and block New Jersey’s attempt to legalize sports gambling. The interesting part of this legal saga is that some of the plaintiffs have taken contradictory positions recently and in the past. These contrary positions have actually supported the legalization of sports gambling and have seemed to alleviate the need for the current lawsuit.
NBA Commissioner Adam Silver first published an opinion piece in the New York Times where he advocated for the legalization of sports gambling — a seemingly direct contradiction to the league’s position in the current lawsuit. The NBA has since stated that it remains in the current lawsuit because it believes that, should sports gambling be legalized, it should be done through Congress and not the court system.
Either way, Silver clearly supports the legalization of sports gambling. Additionally, former NBA Commissioner David Stern also has publicly backed Silver’s legalization stance. Michele Roberts, the executive director of the NBA players’ union, the National Basketball Players Association, has stated that she would like to look into the issue of legalizing sports betting as well, signaling that the players may also be in favor of legalization. Silver’s statements that he believes Congress should step in and evaluate this issue were also met with approval by Sen. John McCain, a former presidential candidate.
All of that stated support is further bolstered by recent reports that both the Department of Justice and the NFL have taken positions in prior cases that both believe sports gambling is a skill and not chance. This difference has legal ramifications because if the activity is considered predominantly skill-based, then it likely will not violate anti-gambling laws. An activity dominated by chance falls more in line with gambling.
The Department of Justice also has said that sports betting involves “substantial skill” and even referred to the famous Las Vegas sports gambler Billy Walters as an example.
Despite Commissioner Roger Goodell’s current stance that the league opposes sports gambling, the NFL has taken contradictory positions in a prior lawsuit as well. In that case, the NFL acknowledged sports betting includes both skill and chance, but that chance is not dominant. Despite these prior positions, the Department of Justice and the NFL continue to fight New Jersey’s attempt to allow what these plaintiffs have previously admitted was a skilled activity.
Given all of the contrary positions taken by the plaintiffs in the current lawsuit, it certainly seems that there is more common ground here than what was ever believed before. Instead of continuing this uphill battle to circumvent a federal statute, it is time for the courts to defer to Congress and begin discussions to legalize sports gambling. I have advocated for this position before, and now there is growing support from more unlikely sources — the plaintiffs.
Joshua Winneker is an assistant professor of business at Misericordia University in Dallas, Pennsylvania.