Commentary

Pol doubles down on sports wagering

Updated: June 25, 2014, 1:44 PM ET
By David Purdum | Special to ESPN.com

American sports bettors outside of Nevada will continue to bet hundreds of billions of dollars illegally, for now.

The United States Supreme Court declined to hear New Jersey's case to have the federal sports betting ban known as the Professional and Amateur Sports Protection Act (PASPA) overturned. But one state senator isn't giving up yet.

On Monday afternoon, hours after the court declined to hear the case, N.J. Sen. Ray Lesniak introduced legislation to decriminalize sports betting at the state's casinos and race tracks. His proposal states:

"Sports wagering conducted at a racetrack or casino under procedures developed solely by the racetrack or casino shall not be considered unlawful gambling and a person shall not be subject to criminal or civil liability under the laws of this State for participating in, or conducting, sports wagering at a racetrack or a casino."

It's one last maneuver for the state, which already has spent $3 million during a two-year legal battle with the major professional sports leagues, the NCAA and Department of Justice.

In 2011, New Jersey voters overwhelmingly approved a referendum to legalize sports betting. Governor Chris Christie signed the legislation in January 2012, and the state got as far as posting sports betting regulations on the gaming enforcement site, before the sports leagues and the NCAA sued on Aug. 7. Over the next two years, the state lost at the district court level and in front of the 3rd Circuit Court of Appeals.

"We are pleased the Supreme Court has denied New Jersey's final attempt for review," NCAA chief legal officer Donald Remy said in a statement. "The NCAA maintains that the spread of legalized sports wagering is a threat to student-athlete well-being and the integrity of athletic competition.

"We continue to believe that PASPA is incredibly important, valid, constitutional legislation that has appropriately halted the spread of legalized sports wagering in New Jersey and across the country. It is our hope that PASPA continues to protect the integrity of sport in America."

Lesniak's proposal targets language from the Third Circuit Court's ruling last summer as well as the Department of Justice's own Supreme Court brief.

"We do not read PASPA to prohibit New Jersey from repealing its ban on sports wagering," the Third Circuit wrote in its 2-1 majority opinion in favor of the sports leagues and the Dept. of Justice, which joined the leagues' side at the last second last February.

During oral arguments at the Third Circuit, U.S. Attorney Paul Fishman also acknowledged that New Jersey could repeal its sports betting laws and would not be in violation of PASPA.

"The reason it hasn't been done for 20 years or a hundred years is not because of PASPA," Fishman told the court. "It hasn't been done because it's a really, really, really bad idea. It's irresponsible. It would be bad policy to just allow gambling to go unfettered."

Lesniak doesn't think so and says the New Jersey Assembly could vote on his latest legislation as early as Thursday. His goal is to place the first legal bet in New Jersey in September at Monmouth Park. But he needs some help from the governor and state assembly.

Christie did not release a statement Monday, but did comment to the media about the Supreme Court's decision before taking the field for a charity softball game at Yankee Stadium.

"It's always a long shot to get certiorari from the United States Supreme Court," Christie told NJ.com. "That's the way it goes. They said 'no' so we have to move on."

Lesniak believes Christie, a potential 2016 Presidential candidate, will change his mind and continue the fight once he reviews the new legislation.

"I think once he looks at it in more depth, he'll see that we're only doing what the Justice Department said we can do and that is repealing our statues that make sports betting illegal," Lesniak reasoned. "I think he'll keep the fight going and give to New Jersey what is enjoyed by the state of Nevada."

Legal minds are skeptical of Lesniak's plan to decriminalize sports betting, though. It's seen by some as a last-ditch, drastic effort that, if it passes, will again draw the ire of the sports leagues and Department of Justice. Lesniak is banking on the Department of Justice refraining from interfering, "as they have in Washington and Colorado with marijuana."

The other obstacle may come from the casino operators, especially those with an established gaming license in a regulated market. Will they be willing to risk losing their status in, for example, Nevada in order to take bets in New Jersey? The U.S. branch of English sports book giant William Hill, which is licensed and operating in Nevada, has already signed with Monmouth Park to operate any future sports wagering. William Hill US CEO Joe Asher said he was not surprised that Supreme Court didn't take the case, but added that "this matter is far from over."

Even if Lesniak's new plan doesn't pan out, legal analysts believe this won't be the last time the Supreme Court is asked to examine the constitutionality of PASPA.

"The best option, I believe, is for another state, such as California, to join the fray and challenge PASPA in another federal judicial circuit in an attempt to create a circuit split," said Daniel Wallach, a Florida gaming attorney, who has followed the case closely. "We could be a few years away from another showdown."

West Virginia, Wisconsin and West Virginia filed briefs in favor of New Jersey during the Supreme Court appeal process. California, Minnesota and Mississippi have already had discussions about the benefits of offering Las Vegas-style sports betting.

Griffin Finan, a gaming attorney with Ifrah Law, who also has followed the case closely, said another state stepping up and challenging PASPA could be what's needed.

"That could create a circuit split, which could inspire the Supreme Court to take the case," said Finan.

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