Governor Chris Christie, along with state politicians and residents, has been hoping to revive the industry through sports wagering. Judge Rendell acknowledged the local sentiment, writing in the majority opinion, “While PASPA’s provisions and its reach are controversial and, some might say, unwise, we are not asked to judge the wisdom of PASPA and it is not our place to usurp Congress’ role simply because PASPA may have become an unpopular law.”
In a split decision on Tuesday, the 3rd Circuit U.S. Court of Appeals in Philadelphia upheld a ruling made last November in New Jersey federal court that struck down a law legalizing sports betting in that state. New Jersey voters passed the law in 2014 that repealed some of the state’s prohibitions on sports betting; however Senior Judge Marjorie O. Rendell, along with Senior Judge Maryanne Trump Barry ruled that the 1992 federal Professional and Amateur Sports Protection Act (PAPSA), which prohibits states from authorizing sports betting, pre-empts any state laws. This is the second time that the 3rd Circuit has ruled against sports betting in New Jersey; with a 2012 judicial panel also ruling that a recently voted-upon 2011 state law violated PAPSA. This time around, state counsel argued that by repealing the existing state laws that banned sports betting in casinos and racetracks, the repeal means that there is no law regarding the matter, and therefore there would be no law for PAPSA to pre-empt.
Following the Supreme Court declining to review the 2012 decision last summer, New Jersey residents voted overwhelmingly for the second time to allow sports betting in the state, with the 2014 measure restricting sports betting to the confines of racetracks and casinos. The traditional gambling industry in New Jersey, especially Atlantic City, has been hard hit in recent years. Governor Chris Christie, along with state politicians and residents, has been hoping to revive the industry through sports wagering. Judge Rendell acknowledged the local sentiment, writing in the majority opinion, “While PASPA’s provisions and its reach are controversial and, some might say, unwise, we are not asked to judge the wisdom of PASPA and it is not our place to usurp Congress’ role simply because PASPA may have become an unpopular law.”
Much of the debate in the most recent appeal revolved around the word “authorize.” Rendell questioned whether or not the term used in the 2014 law means to “permit,” “allow,” “empower” or something else. Using Black’s legal dictionary as a guide, Rendell found authorize to mean “empower; to give a right or authority to act.” Due to this definition, Rendell wrote that “The 2014 law allows casinos and racetracks and their patrons to engage, under enumerated circumstances, in conduct that other businesses and their patrons cannot do. That selectiveness constitutes specific permission and empowerment.” Rendell added that if the New Jersey law had repealed all prohibitions on sports betting, that the court would be “hard pressed” to find legal authorization that violated PASPA. Rendell also wrote that “While artfully couched in terms of a repealer, the 2014 law essentially provides that, notwithstanding any other prohibition by law, casinos and racetracks shall hereafter be permitted to have sports gambling. This is not a repeal; it is an authorization.
Judge Julio M. Fuentes, who authored the court’s majority opinion striking down the law in 2012, dissented with his colleagues this time. In his opinion, Fuentes disagreed with Rendell’s insistence that law’s language is an “authorization,” in violation of PASPA, saying “There is simply no conceivable reading of PASPA that could preclude a state from restricting sports wagering.” Believing that repeal should be equivalent to a law never existing in the first place, a partial repeal should mean as if the repealed portion never existed as well, only leaving behind what laws remained. Therefore, there was no selective authorization to begin with.
All four major professional sports leagues along with the NCAA sued to prevent the law from taking effect. The ruling is a victory, although the case is likely not finished. The case, entitled National Collegiate Athletic Association v. Christie, also known informally as Christie II, will likely be argued in the coming months before the full 3rd Circuit, according to state Senator Ray Lesniak. It is also possible depending on the en banc hearing, that Fuentes’s dissent from his own previous ruling could lead the case up the ladder to the Supreme Court.
ESPN.com – David Purdum
New York Times – Joe Drape
The Legal Intelligencer – Gina Passarella
Washington Post – Matt Bonesteel