Another day, another sports betting "amicus" brief backing New Jersey in its six-year-old effort to have racetracks and Atlantic City casinos empowered to offer Las Vegas-style sports betting if they choose.
Here are some of the highlights:
"The AGA is particularly concerned with the prevalence of illegal sports gambling in the United States, much of which takes place undeterred by the failed Professional and Amateur Sports Protection Act (PASPA)...
"... rather than reduce sports betting, PASPA has simply allowed it to flourish underground, benefiting criminal elements and creating a thriving black market. .... Since PASPA’s enactment, trillions of dollars have been wagered illegally on sporting events. In the last Super Bowl alone, $4.2 billion was wagered, and 97% of those bets were made illegally. Much of this revenue generated by illegal sports gambling is used to fund organized crime and other illicit activity, such as drug and human trafficking, money laundering and racketeering.
"The AGA — like the majority of sports fans and many leaders in law enforcement — believes it is time to re-examine the nation’s outdated sports-betting laws."
"The fundamental legal question presented by these petitions is whether a federal court can, consistent with federalism and dual sovereignty, enjoin a State from passing a law that neither violates the Constitution nor addresses any matter preempted by federal law. The Third Circuit’s conclusion that federal courts have this unprecedented power is irreconcilable with this Court’s well-established anti-commandeering jurisprudence, and severely detrimental to state efforts to combat sprawling black markets for illegal sports gambling."
"Not only is PASPA unconstitutional; it deprives States of vital tools needed to combat the thriving and violent black market for illegal gambling. As construed by the Third Circuit, PASPA forces States to maintain laws that were unwise in 1992 and are dangerously outdated today. This creates at least four significant problems:
"First, the Third Circuit leaves in place an unconstitutional law that has enabled a violent and expanding black market.....
"Second, the Third Circuit’s decision forces States to ignore the growing public consensus in favor of re-forming outdated sports-betting laws....
"Third, replacing PASPA’s top-down mandate with state-by-state regulation will benefit consumers, law enforcement, professional and amateur sports, and local communities..."
"Finally, the Third Circuit’s decision will deter other States from updating their sports-gaming laws. The Third Circuit’s en banc decision creates substantial uncertainty regarding what — if any — reforms to state law PASPA permits..."
I. PASPA FORCES STATES TO ENFORCE A FAILED FEDERAL PROHIBITION ON SPORTS BETTING.
"The Act enshrines a federal policy that, with a few grandfathered exceptions, makes sports betting illegal nationwide. But, rather than enacting this policy directly as a matter of federal law, PASPA prohibits States from “sponsor[ing], operat[ing], advertis[ing], promot[ing], licens[ing], or authoriz[ing]” sports betting. As interpreted by the Third Circuit, PASPA not only prohibits States from enacting laws that authorize sports gambling; it forces States to maintain laws (and accompanying enforcement apparatuses) that prohibit the practice. Although the Third Circuit left open the possibility that some repeals or amendments may be acceptable, it gave no guidance to States on what those acceptable revisions may be."
"Under the Third Circuit’s analysis, PASPA not only prevents the State of New Jersey from enacting laws that implement the policy preferences of nearly two-thirds of its citizens on these important issues; it commandeers the State legislature by forcing New Jersey to maintain state laws consistent with PASPA’s federal standard. Thus, PASPA places the New Jersey Code in a time capsule of sorts, to be opened only by some future session of Congress. Until New Jersey receives such congressional imprimatur, the State must keep on its books a law it no long-er wants and take responsibility for a policy it wishes to abandon."
"The Third Circuit’s contrary holding rests on the mistaken premise that PASPA does not commandeer state sovereignty because the law “does not command [the] states to take affirmative action.” In other words, the Third Circuit suggests that prohibiting a State from repealing existing legislation is constitutionally different from requiring a State to enact new legislation. But this is akin to saying that shackles are not a restraint because they do not re-quire the wearer to walk."
II. PASPA PREVENTS STATES FROM COMBATING ILLEGAL GAMBLING AND ORGANIZED CRIME.
A. PASPA Has Enabled A Thriving And Dan-gerous Black Market For Illegal Sports Betting.
"The Third Circuit’s decision is not just wrong; it is dangerous because it deprives States of the authority to combat illegal gambling."
"Taking the $149 billion figure as a conservative estimate, the market for illegal sports betting in the United States last year was greater than the revenue of 491 of the Fortune 500 companies, and roughly equal to the combined revenue of Microsoft, Goldman Sachs, and Bristol-Myers Squib."
B. Public Attitudes Have Shifted In Favor Of Legalized Sports Wagering.
"Dramatic changes in technology, professional sports, and public opinion have occurred since PASPA was adopted nearly a quarter-century ago. The Act does not address any of these changes, and does not give the States the flexibility they need to do so. In-stead, States are made accountable for antiquated federal policy."
"To be sure, if Congress wishes to enact a law that runs contrary to the interests of the public, it may try to do so. But enforcement mechanisms are constitutionally significant. And what the federal government cannot do is pass the buck to the States, commandeer their enforcement apparatuses, and make them responsible for a policy they wish to eliminate."
C. A Blanket Prohibition On Sports Betting Interferes With States’ Traditional Authority Over Gaming.
"By compelling States to enforce a federal policy on sports betting, PASPA deprives States of any flexibility to address the mounting evidence and an emerging consensus that legalized sports betting is a more effective way to combat illegal gambling and associated crimes than the total prohibitions maintained by many States under PASPA’s framework today. This is not only unconstitutional but highly unusual."
D. The Third Circuit’s Decision Creates Uncertainty That Will Deter States From Attempting Popular And Necessary Regulatory Reforms.
"Conducting sports betting in the open will also permit local law enforcement to access vital information necessary to identify and prosecute match-fixing and organized crime. Gaming operators can “provide an early warning system” of “irregularities” that may be evidence of corruption. Law Enforcement Summit, at 6 (statement of Karl Bennison, Chief of Enforcement for the Nevada Gaming Control Board). For example, during the 2016 Australian Open tennis tournament, a legal sports book in that country identified an unusual amount of bets being placed on a mixed doubles match. This discovery led to allegations that a pair of tennis players purposefully lost their match as part of a gambling conspiracy. This scandal may have never been uncovered without the large amounts of data generated by lawful sports-betting operations."
Here are some of the highlights:
"The AGA is particularly concerned with the prevalence of illegal sports gambling in the United States, much of which takes place undeterred by the failed Professional and Amateur Sports Protection Act (PASPA)...
"... rather than reduce sports betting, PASPA has simply allowed it to flourish underground, benefiting criminal elements and creating a thriving black market. .... Since PASPA’s enactment, trillions of dollars have been wagered illegally on sporting events. In the last Super Bowl alone, $4.2 billion was wagered, and 97% of those bets were made illegally. Much of this revenue generated by illegal sports gambling is used to fund organized crime and other illicit activity, such as drug and human trafficking, money laundering and racketeering.
"The AGA — like the majority of sports fans and many leaders in law enforcement — believes it is time to re-examine the nation’s outdated sports-betting laws."
"The fundamental legal question presented by these petitions is whether a federal court can, consistent with federalism and dual sovereignty, enjoin a State from passing a law that neither violates the Constitution nor addresses any matter preempted by federal law. The Third Circuit’s conclusion that federal courts have this unprecedented power is irreconcilable with this Court’s well-established anti-commandeering jurisprudence, and severely detrimental to state efforts to combat sprawling black markets for illegal sports gambling."
"Not only is PASPA unconstitutional; it deprives States of vital tools needed to combat the thriving and violent black market for illegal gambling. As construed by the Third Circuit, PASPA forces States to maintain laws that were unwise in 1992 and are dangerously outdated today. This creates at least four significant problems:
"First, the Third Circuit leaves in place an unconstitutional law that has enabled a violent and expanding black market.....
"Second, the Third Circuit’s decision forces States to ignore the growing public consensus in favor of re-forming outdated sports-betting laws....
"Third, replacing PASPA’s top-down mandate with state-by-state regulation will benefit consumers, law enforcement, professional and amateur sports, and local communities..."
"Finally, the Third Circuit’s decision will deter other States from updating their sports-gaming laws. The Third Circuit’s en banc decision creates substantial uncertainty regarding what — if any — reforms to state law PASPA permits..."
I. PASPA FORCES STATES TO ENFORCE A FAILED FEDERAL PROHIBITION ON SPORTS BETTING.
"The Act enshrines a federal policy that, with a few grandfathered exceptions, makes sports betting illegal nationwide. But, rather than enacting this policy directly as a matter of federal law, PASPA prohibits States from “sponsor[ing], operat[ing], advertis[ing], promot[ing], licens[ing], or authoriz[ing]” sports betting. As interpreted by the Third Circuit, PASPA not only prohibits States from enacting laws that authorize sports gambling; it forces States to maintain laws (and accompanying enforcement apparatuses) that prohibit the practice. Although the Third Circuit left open the possibility that some repeals or amendments may be acceptable, it gave no guidance to States on what those acceptable revisions may be."
"Under the Third Circuit’s analysis, PASPA not only prevents the State of New Jersey from enacting laws that implement the policy preferences of nearly two-thirds of its citizens on these important issues; it commandeers the State legislature by forcing New Jersey to maintain state laws consistent with PASPA’s federal standard. Thus, PASPA places the New Jersey Code in a time capsule of sorts, to be opened only by some future session of Congress. Until New Jersey receives such congressional imprimatur, the State must keep on its books a law it no long-er wants and take responsibility for a policy it wishes to abandon."
"The Third Circuit’s contrary holding rests on the mistaken premise that PASPA does not commandeer state sovereignty because the law “does not command [the] states to take affirmative action.” In other words, the Third Circuit suggests that prohibiting a State from repealing existing legislation is constitutionally different from requiring a State to enact new legislation. But this is akin to saying that shackles are not a restraint because they do not re-quire the wearer to walk."
II. PASPA PREVENTS STATES FROM COMBATING ILLEGAL GAMBLING AND ORGANIZED CRIME.
A. PASPA Has Enabled A Thriving And Dan-gerous Black Market For Illegal Sports Betting.
"The Third Circuit’s decision is not just wrong; it is dangerous because it deprives States of the authority to combat illegal gambling."
"Taking the $149 billion figure as a conservative estimate, the market for illegal sports betting in the United States last year was greater than the revenue of 491 of the Fortune 500 companies, and roughly equal to the combined revenue of Microsoft, Goldman Sachs, and Bristol-Myers Squib."
B. Public Attitudes Have Shifted In Favor Of Legalized Sports Wagering.
"Dramatic changes in technology, professional sports, and public opinion have occurred since PASPA was adopted nearly a quarter-century ago. The Act does not address any of these changes, and does not give the States the flexibility they need to do so. In-stead, States are made accountable for antiquated federal policy."
"To be sure, if Congress wishes to enact a law that runs contrary to the interests of the public, it may try to do so. But enforcement mechanisms are constitutionally significant. And what the federal government cannot do is pass the buck to the States, commandeer their enforcement apparatuses, and make them responsible for a policy they wish to eliminate."
C. A Blanket Prohibition On Sports Betting Interferes With States’ Traditional Authority Over Gaming.
"By compelling States to enforce a federal policy on sports betting, PASPA deprives States of any flexibility to address the mounting evidence and an emerging consensus that legalized sports betting is a more effective way to combat illegal gambling and associated crimes than the total prohibitions maintained by many States under PASPA’s framework today. This is not only unconstitutional but highly unusual."
D. The Third Circuit’s Decision Creates Uncertainty That Will Deter States From Attempting Popular And Necessary Regulatory Reforms.
"Conducting sports betting in the open will also permit local law enforcement to access vital information necessary to identify and prosecute match-fixing and organized crime. Gaming operators can “provide an early warning system” of “irregularities” that may be evidence of corruption. Law Enforcement Summit, at 6 (statement of Karl Bennison, Chief of Enforcement for the Nevada Gaming Control Board). For example, during the 2016 Australian Open tennis tournament, a legal sports book in that country identified an unusual amount of bets being placed on a mixed doubles match. This discovery led to allegations that a pair of tennis players purposefully lost their match as part of a gambling conspiracy. This scandal may have never been uncovered without the large amounts of data generated by lawful sports-betting operations."
