With the U.S. Supreme Court slated to hear oral arguments in the case Christie v. National Collegiate Athletic Association on December 4, the gaming industry is anxiously envisioning what the national landscape will look like once a ruling is handed down.
A decision in the case, which challenges the constitutionality of the blanket federal ban on sports betting, could come as soon as the early months of 2018, potentially bringing along with it closure to New Jersey’s half-decade long quest to offer such wagering within its borders and more clarity to the future of the activity in the United States.
“What will happen on December 4 is that the court will hear oral arguments and ask questions of both sides,” said Sara Slane, senior vice president for public affairs at the American Gaming Association. “We would then anticipate they would make a ruling sometime either early next year or more likely next spring, be it in the April to June range.”
If a decision favorable to the industry is handed down, individual states – such as the 15 that have already passed or are considering sports betting legislation – would be free to advance within the contours of the court’s ruling.
“Once the decision is issued by the court, the states – depending on how that decision is issued – could move quite soon after if they so choose to,” Slane explained.
Will Moschella, an attorney with Brownstein Hyatt Farber Schreck in Washington, D.C., reckoned that the timeframe will vary based on the complexity of the decision reached by the court.
“It’s really hard to predict. If it’s a complicated opinion, meaning multiple justices write multiple opinions, dissents, concurrences and the rest, that’s going to take a lot more time because that means a lot more paperwork is shuffling back and forth between the clerks and the justices,” he explained.
“If it’s a majority opinion with maybe a dissent, April seems to me to be a relatively good guess,” Moschella continued. “But the more complicated the decision winds up being, the longer it will take, and at the end of the day nobody really knows.”
Moschella predicted that the most likely outcomes of the case would be either a full nullification of the 1992 Professional and Amateur Sports Protection Act – which effectively prohibits sports betting outside of Nevada – on the grounds that is unconstitutional, a strikedown of components of the law that could potentially allow states to partially repeal their sports betting prohibitions, or an upholding of PASPA that could allow states to proceed with total repeals of their sports betting bans.
“Normally Congress passes a statute that says XYZ commercial behavior is unlawful and then enforces that at the federal level,” said Moschella. “Here PASPA says ‘states you can’t do the following: authorize, license etc.’ So If you have an absence of law, the argument would be that you’re not doing any of the things that PASPA directs states not to do.”
