Goliath Versus Goliath:  Three Takeaways From the En Banc Rehearing of NCAA v. New Jersey

by Goodwin

Barring congressional action, the future of sports betting in the United States lies in the hands of the U.S. Court of Appeals for the Third Circuit.  Last month, the en banc court heard argument in NCAA v. New Jersey, No. 14-4569, which will decide whether New Jersey’s limited repeal of its sports betting prohibition—a repeal that allows casinos and racetracks to operate sports betting facilities—violates the Professional and Amateur Sports Protection Act of 1992 (PASPA), 28 U.S.C. § 3701 et seq.  The panel decision held that the repeal was in fact an authorization because it operated in a way that allowed certain entities to engage in sports gambling.

This appeal is a clash between two titans—in more ways than one.  It pits a cash-strapped state government against the collective of leagues protected by PASPA (who were, in turn, backed by the federal government).  The oral argument was also a rare one in which two veteran Supreme Court advocates—Paul Clement (representing the leagues) and Ted Olson (representing New Jersey)—argued against each other in a setting other than the Supreme Court.

The oral argument touched on a number of issues related to statutory construction and PASPA’s constitutionality.  Here are three questions that the court may address in its upcoming opinion:

  • Is PASPA constitutional? In an earlier iteration of the case, New Jersey argued that PASPA was unconstitutional because it commandeered the states and made them instrumentalities of the federal government by requiring them to pass or maintain restrictions on sports betting.  New Jersey contends that if PASPA can be construed in a way that prevents a state from repealing an existing law, it is unconstitutional under the Tenth Amendment because Congress is essentially requiring a state to maintain a law on its books.  The leagues, on the other hand, argue that there is no commandeering problem because PASPA does not require states to act immediately to carry out a congressional mandate.  (For a refresher on the anti-commandeering doctrine, see Printz v. United States and New York v. United States.)

While courts generally try to avoid deciding cases on constitutional grounds, the Third Circuit may reach the Tenth Amendment question.  It is interesting that the en banc court put the Tenth Amendment issue back on the table (or, at least, Judges Rendell and Jordan said as much during the argument).  The Third Circuit, in a previous panel decision addressing a different New Jersey law on sports betting, had already decided that PASPA was constitutional.  It seems, however, that New Jersey has succeeded in convincing the court that the constitutionality question is one worth revisiting.

  • What is the meaning of “authorize”? There is very little caselaw on what the word “authorize” means.  New Jersey asserts that a repeal—at least, the sort of repeal involved in this case—can never constitute an “authorization,” as the state is not expressly or affirmatively agreeing to allow the previously prohibited conduct.  In a sense, the conduct is in a “gray” area—not expressly permitted, but not illegal, either.  The leagues reiterated the panel’s position on what “authorize” means—that a repeal can constitute an “authorization,” if, after examining the laws that remain after the repeal, certain types of individuals or organizations are allowed to engage in what is otherwise prohibited conduct.

At bottom, the Third Circuit must grapple with the question of whether there is a difference between “Sports betting shall not be legal except when conducted by a casino or a racetrack” and “Sports betting shall be authorized when it is conducted by a casino or a racetrack.”  New Jersey says yes, the leagues say no.

  • If the repeal is permissible under PASPA, will New Jersey turn into the “Wild, Wild, East?” Judge Ambro’s comment about New Jersey turning into the “Wild East” with an unregulated sports betting industry drew laughter from the courtroom audience.  But the question is a serious one—can an unregulated sports betting industry adequately protect consumers and not return to the days of Atlantic City’s shadier past?  New Jersey and the state’s Thoroughbred Horsemen’s Association (the other appellant in this case) say yes—private industry will provide adequate self-regulation; if self-regulation is inadequate, the state is free to reinstitute its ban at any time.  The United States’ rejoinder was that New Jersey was quietly relying on existing regulations for casinos and racetracks to serve as an indirect way of controlling a casino-and-racetrack-operated sports betting industry.  The federal government argues that this supports the notion that New Jersey’s repeal is indeed an authorization.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Goodwin | Attorney Advertising

Written by:


Goodwin on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.