New Jersey continues to wait for a ruling from an "en banc" panel of judges at the Third Circuit Court of Appeals in Philadelphia. It has been nearly 175 days since the judges heard arguments in the case, but no decision has been rendered. Most of the time, the court hands down a decision in 90 to 120 days.
Early speculation when the case was heard in February 2016 was that a decision might not happen until the late-summer, perhaps even September. That speculation appears to be accurate.
At stake is the future of sports betting in America. If the judges side with New Jersey, then a 24-year old federal law is likely to be ruled unconstitutional. If the judges rule against New Jersey, then it likely will end the state's 5-year battle to legalize sports betting in New Jersey. It also would be another blow to the Atlantic City gambling industry.
Geoff Freeman and Adam Silver
American Gaming Association President Geoff Freeman said at a gaming conclave in Mississippi recently that he met with NBA Commissioner Adam Silver to discuss establishing a legal sports betting framework in the United States. Adam Silver reversed the NBA's longstanding opinion on sports betting in 2015, when he said he supported legal, regulated sports betting in theory.
When Adam Silver wrote his opinion piece in the New York Times stating that opinion, he issued one major caveat. Silver only supports legalizing sports betting if it done at the federal level of government: one law with one set of rules for 50 states.
The NBA continues to oppose New Jersey's legal challenge of the Professional and Amateur Sports Protection Act (1992). In fact, the NBA is one of several American sports associations which has joined in a lawsuit against New Jersey, seeking to force Gov. Chris Christie to give up his plan to legalize sportsbooks in Atlantic City and at the New Jersey racetrack at Monmouth Park.
"Information Only" Meeting
NBA spokesman Michael Bass downplayed the meeting between Silver and Geoff Freeman, saying their meeting was "informational only". The exact meaning of Bass's statement is unknown, since any conversation about any subject could be described as 'informational'. Michael Bass did indicate that, despite Adam Silver's stance on sports betting, the NBA has no plans to become more aggressive in advocating legalization to the other sports leagues.
Silver's Stance Based on Economics and Transparency
Adam Silver recently told the polling, political, and sports site, FiveThirtyEight, that his opinions about sports betting were two-fold: for the sake of economics and transparency. According to Silver, sports gambling is going to be legalized in the United States eventually, and he wants the NBA to be in on the ground floor of tapping the revenues such a change will generate.
Ultimately, sports betting would be worth billions of dollars to the National Basketball Association. The NBA commissioner told 538's Hot Takedown Podcast, "One of the reasons I've been pushing to legalize sports betting is not because that I'm necessarily an advocate of sports betting, it's because all the research shows that it's a multi-hundred-billion dollar business just in the United States right now."
Transparency Helps Integrity
Adam Silver wants federal regulations on sports betting, because he believes an unregulated gaming market is underground, where information is sparse. A regulated gaming market leads to transparency. It's a classic liberal point-of-view towards federal regulations: the red tape stabilizes the market, because investors and public alike can see what's taking place.
Silver's stance stands in direct contrast to the NBA's traditional policy. When the NBA and other sports leagues pushed the PASPA law in 1991-92, they argued that legalization would cause the public to question the integrity of sport. If gambling was approved by the government, then it would become rampant and out-of-control. If millions of Americans awaited the outcome of every play due to gambling reasons, it would undermine the purity of fan interest.
1992 was a time before fantasy sports dominated the thinking of mainstream sports fans. It was also a time before mobile gambling on smartphones, when anyone anywhere could gamble through offshore operators. As the old saying goes, conditions 'on the ground' have changed.
Legalization in the Next Four Years
Ultimately, Adam Silver seems himself grasping the inevitable. The commissioner also suggested that sports gambling would be legal in the United States "within the next four years". It is uncertain what data Silver might have been using for that assertion, but given the electoral cycle in the United States, he might be assuming the issue will come to ahead during the first term of the next presidential administration.
The question is: will the Third Circuit Court of Appeal be the instrument of change, or will it kick the ball down the road? With the NBA, MLB, NHL, and NFL associated closely to daily fantasy sports companies, the argument that the leagues seek a ban on sports betting to uphold a public image is starting to fall flat. Yet in a court of law, precedent and case law usually holds sway over the latest trends.
Thus, in the upcoming New Jersey sports betting case, the NBA and other sports leagues have all the legal precedent on their side, while New Jersey has the general trends and common sense on their side. Some would argue they have the US Constitution on their side, too, because a law which favors 4 states over the other 46 violates the Commerce Clause.
Over 5 years' time, New Jersey has lost every step of the way. Especially given the sharp tone many of the judges used in the February 2016 arguments, New Jersey has a lot to overcome if it's going to win the "en banc" ruling. But landmark cases always have a lot to overcome.
Update: New Jersey Sports Betting Law Fails
Coincidentally, we did not have long to wait. In a decision rendered on Tuesday, the 12-judge panel handed down a 10-2 decision against New Jersey's sports betting law. The judges stated New Jersey's attempts to selectively enforce sports betting laws represented a de facto attempt to legalize sportsbooks in the state.
New Jersey can appeal the case to the U.S. Supreme Court, but that is not likely to produce positive results. The Supreme Court refused to hear a similar case in 2014.
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