At some point in the next few weeks and maybe even this week, the United States Supreme Court is going to strike down as unconstitutional one of the most ignorant pieces of legislation Congress ever passed, and they’ve had some doozies. This legislation is the by-product of some ivory tower, self-righteous thinking that has long since passed being relevant. It’s the Professional and Amateur Sports Protection Act (“PASPA”) passed in 1992.
It’s codified at 28 U.S.C. section 3701 and it provides in part that no governmental entity can “sponsor, operate, advertise, promote, license or authorize by law…a lottery, sweepstakes or other betting, gambling or wagering scheme…on one or more competitive games in which amateur or professional athletes participate…” What it does is prohibit any type of legalized sports gambling in any state other than Nevada where it has been legalized since 1949. Nevada was specifically excluded from the 1992 legislation that was signed into law by the first President Bush because the members of Congress knew it wouldn’t survive a challenge from Nevada if that state was part of the legislation. Now, it’s not going to survive a challenge from New Jersey and when it’s finally excised from the books, all bets are on across the country.
Before we go any further, true confessions. I love gambling. Not those stupid slot-machines that old farts get in front of at casinos and spend all day there. Not those stupid table games either. I love gambling on sports because I love sports. I’ve told numerous people that the Las Vegas Sports Book is literally heaven on earth. It has all any person needs: booze, sports on big screen televisions, and gambling. My screen saver on the I-pad is a picture of the Westgate Sports Book in Vegas.
It’s dumbfounding that Nevada is the only place you can place a legal bet on sports. It makes no sense when you can bet on horse racing all damn day in any state that has horse racing, and the various state lotteries are nothing but gambling in a different form. You buy a scratch off ticket and you are giving money away to try and make money. That’s the definition of gambling. And don’t insult my intelligence by saying it’s to support education. Just stop that crap right now.
But, when it comes to sports, states have long been afraid of the “Big 5”: The NCAA, Major League Baseball, the NHL, the NBA, and most of all the 500 pound sports gorilla known as the NFL. The “Big 5” has been against sports gambling in any form forever, and remain so although NBA Commissioner Adam Silver has flipped his stance in recent years because he’s smart enough to see that it’s coming. HIs predecessor David Stern hated it and once told the mayor of Las Vegas that there would never be an NBA team in Vegas as long as he was alive. Then he put the all-star game there one year.
It look former New Jersey Governor Chris Christie to stand up and have the guts to say enough is enough. Now, let’s be honest, Christie is a bit of an odd duck, looks like a White Fat Albert, and should never ever be allowed to wear a softball uniform again (Google search it, but don’t do it just after you ate). I never quite understood why the Governor of New Jersey had a “bro-mance” with Dallas Cowboys Owner Jerry Jones. The shots of his big ass in the owners box at AT&T Stadium handing out hugs to Jones were priceless.
But, Christie and the legislators in New Jersey saw a potential gold mine in the casinos already in the State. With their promoting, the citizens of New Jersey approved a amendment to the State’s constitution in 2011 that would allow legislators to vote on and approve sports gambling. So, in 2012 New Jersey told the NFL in particular to go “fornicate” themselves and passed sports gambling in New Jersey’s casinos and race tracks. As you can guess, the self-righteous Big 5 stepped in and sued New Jersey.
The Big 5 managed to win that case on some of the dumbest reasoning that you’ll ever hear from a U.S. District Court and a Court of Appeals. Both said that New Jersey couldn’t do what it was doing but that the PASPA didn’t require States to pass laws prohibiting sports gambling, it just stopped them from licensing and regulating sports gambling. What? Okay, so the PASPA prohibits New Jersey from licensing and regulating sports gambling, but it’s not prohibited. That makes about as much sense as saying, look we’re not telling you that you can’t put mayonnaise on your hot dog, but you can’t do that because if you do, then everyone is going to think we told you that you could do it. Right, it’s confusing.
Not content, New Jersey told the Big 5 to once again “fornicate” themselves in 2014. New Jersey repealed the 2012 law and passed a new law which said, okay we aren’t going to license and regulate sports wagering, but it can only take place without us regulating it in casinos and race tracks in the state, by persons over 21 and if any New Jersey based team or school is involved in a contest in New Jersey or anywhere else, then the casinos and race tracks can’t take bets on those contests.
The Big 5 jumped in again and once again sued New Jersey. The case has now made its way all the way to the U.S. Supreme Court where – if the oral arguments are any indication (and you have to be careful in concluding that they are) – the Court is about to once and for all tell the Big 5 that they can officially go “fornicate” themselves and shut up. The basis for New Jersey’s appeal and the most likely reason they win is the 10th Amendment to the U.S. Constitution.
The 10th Amendment states specifically that powers not delegated to the United States by the Constitution, nor prohibited to the States, are reserved to the States and its citizens. That means that if New Jersey wants sports gambling and Tennessee doesn’t (and believe me when I tell you this backwoods state won’t ever have it), then that’s just fine. New Jersey has argued to the Court that the Federal Government is commandeering how it runs its affairs. It’s an area the Supreme Court has addressed before. In 1992, in the case of New York v. United States, the Supreme Court stated that even where Congress has the authority under the Constitution to pass laws requiring or prohibiting certain acts, it LACKS the power to directly compel the states to prohibit those acts. In other words, the Federal Government can pass a law preventing sports gambling, but that doesn’t mean they can stop the states from having it.
Any opinion won’t necessarily be an endorsement by the Supreme Court of Sports Gambling, and will probably be narrowly confined to the 10th amendment anti-commandeering act, but the result will be that states are free to allow it and that’s a good thing. If for no other reason than the hypocrisy shown by the Big-5 and in particular the NFL. NFL Commissioner Roger Goodell can sit in his ivory tower and look down on gambling all he wants, but he’s allowing one of his leagues iconic franchises, the Oakland Raiders to move to a stadium just off the famed Las Vegas strip and within one mile of about 10 Las Vegas Sports Books. Literally where they are building the Stadium, you can walk over to Mandalay Bay to place a bet at halftime. The NHL is already in Vegas with the Golden Knights and the NBA and MLB are not far behind. In fact I’m shocked the Rays haven’t cut a deal with Vegas to leave behind what is unquestionably the Major League’s worst stadium in Tampa, the horrific Tropicana Field.
So in the coming months, it appears states will be free to jump on the sports gambling train. West Virginia has already approved it and is just waiting for the Supreme Court to give its okay. Of course, it helps when West Virginian’s goof-ball Governor owns a casino and it’s clearly a state that could use revenue. Maybe even use it to increase teacher salaries, and get a new Governor.
And let’s don’t go down that tired old argument that this is going to open the door to shady characters influencing games. That’s been going on forever. There are always going to those that throw games for profit and that’s not going to stop. And, the numbers don’t support that. The American Gambling Association has estimated that $149 billion dollars was bet illegally in 2016 and 97% of the bets annually on the NCAA basketball tournament are illegal ones. Instead, this brings sports gambling out of the shadows and into regulation just like it is done in Vegas. And if you can some place and legally smoke a joint, putting a few dollars on a game all in the name of good fun just isn’t a big deal. Thank you Governor Christie for having the guts to end the hypocrisy of the Big 5. Just don’t ever put on that softball outfit again. PLEASE.