Two developments in the past few days indicate New Jersey has a solid chance of having its appeal on sports betting heard before the 3rd U.S. Circuit Court of Appeals in Philadelphia. New Jersey lost a 2-1 decision before the appellate court last month, but has the legal right to ask for an "en banc" ruling from a larger panel of judges.
The court does not have to agree to that request, but one piece of news suggests the court is leaning towards that decision. A second piece of news may have increased New Jersey's chances the panel will agree to its request.
Schwartz and Chagares Recusals
First, two judges have recused themselves from the case: Patty Shwartz and Michael Chagares. At present, their reasons for the recusals have not been announced. If New Jersey's request is granted, the full list of about two dozen 3rd Circuit judges will hear the case. At present, only the 12 active or non-senior judges determine whether the en banc panel will hear the case.
What the decision does is lower the number of judges who have to agree to see the case. Previously, 7 of 12 judges would have had to agree to hear the case. Now, 6 of 10 judges would have to agree. While the shrinking of the pool of appellate judges does not necessarily favor New Jersey, it is speculated that it does in this case.
Leagues Asked to Reply
In other news, the 3rd Circuit Court requested that the sports leagues whose lawsuit sparked the legal battle make a filing in the case. When New Jersey made its appeal to the court, its lawyers filed a legal brief. The court has given the sports leagues 2 weeks to file a counter to the New Jersey filings.
The request from the court is an indication that it is considering a hearing. Daniel Wallach, a Florida attorney with a background in sports betting cases, says that this case is following that pattern of one heading towards a hearing.
Wallach said, "Most appellate courts swiftly deny a rehearing without asking for an answer brief."
Sports Betting Lawsuits
This is the second lawsuit brought against New Jersey and Monmouth Park by the leading Americans sports leagues and associations: the NFL, NHL, NBA, MLB, and NCAA. The first lawsuit went through the court of US District Judge Michael Shipp and the 3rd Circuit Court of Appeals in 2013 and 2014. Both ruled in the favor of the sports league. When New Jersey appealed to the U.S. Supreme Court, the country's high court declined to hear the case.
Then New Jersey changed its laws, in the hope the new changes would allow the state to allow sports betting, without regulating it. When Monmouth Park announced it would open a sportsbook in October 2014, the league joined together to sue the state and the racetrack. Since then, Judge Michael Shipp and the 3rd Circuit Court of Appeals have ruled in the favor of the leagues. Before New Jersey takes the case to the Supreme Court again, its lawyers decided to ask for the en banc ruling from the 3rd Circuit judges.
Changing Times for Sportsbooks
In the past year, the anti-gambling forces among the sports leagues appear to be shifting their opinions. Both the NBA and Major League Baseball have new commissioners, and both of those commissioners have signaled a newfound willingness to discuss legal sportsbooks.
NBA Commissioner Adam Silver wrote a New York Times op-ed piece suggesting a new federal law to legalize and regulate sports betting, while MLB Commissioner Rob Manfred said he would discuss with baseball owners the possibility of changing their traditional stance. Meanwhile, the sports leagues have signed corporate deals wth daily fantasy sports sites FanDuel and DraftKings, which are seen by some as (legal) sports gambling by a different name.
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