[toc]Doublespeak – long a part of opaque political speech and famous George Orwell dystopian novels – has now prominently entered the debate over legal sports betting in the United States.
New comments by two prominent sports league executives rekindled memories of a contentious early skirmish in the New Jersey sports betting case.
What the NBA, NFL are saying on sports betting
Last week, an NBA in-house attorney told the Wall Street Journal (paywall) that the prospects for expanded sports gambling in the U.S. have only recently brightened:
“There is definitely forward motion,” said Dan Spillane, a National Basketball Association senior vice president who has led the league’s efforts to study the issue. “Five years ago, no one saw this as something that could realistically happen.”
There is a reason for the lack of optimism five years ago.
The same NBA lawyer filed court papers in 2012 seeking to seal NBA-commissioned studies purportedly showing how the league was injured and irreparably harmed by legalized and regulated sports betting, according to court documents obtained by Legal Sports Report.
Spillane’s new comments, published April 1 on the WSJ’s front page, came just days after NFL Commissioner Roger Goodell cited the “beneficial” aspects of Nevada’s regulated sports wagering while simultaneously reiterating the NFL’s opposition to legal sports gambling following the Oakland Raiders’ announced move to Las Vegas.
The quotes by Spillane and Goodell cast renewed light on the esoteric legal issue of “standing.” That was a hot-button debate in the initial stages of the New Jersey sports betting litigation involving the Professional and Amateur Sports Protection Act. PASPA is the federal sports betting ban that limits wagering to Nevada and a small number of other states.
Early stages of New Jersey sports betting case
The NFL, NBA, NHL, MLB and NCAA first sued New Jersey Gov. Chris Christie under PASPA in 2012 to shut down the state’s plans for regulated Vegas-style sports wagering.
“[S]ports gambling in New Jersey would irreparably harm amateur and professional sports,” wrote league attorneys in the initial Aug. 7, 2012 complaint. “Plaintiffs reputation and goodwill will be irreparably damaged if the violations [of PASPA] alleged herein are not preliminarily and permanently enjoined, including but not limited to the fact that the proliferation of sports gambling will adversely affect the way that the public views amateur and professional sports.”
Christie’s lawyers responded by alleging that the five sports leagues lacked “standing” to bring the lawsuit and that the case should be dismissed. His legal team claimed that the five leagues did not suffer any injury sufficient enough to meet the US Constitution’s “case or controversy” requirement.
Facing a motion to dismiss, each league moved to submit a number of research studies attempting to establish that each would be injured if New Jersey were to offer regulated sports wagering.
Spillane filed a “certification” on Dec. 7, 2012. to seal about a dozen studies and other documents. If court documents are sealed, they remain confidential and outside the public domain.
“No less restrictive alternative to sealing the entirety of the [studies] is available due to the entirety of each document containing highly sensitive information of which redaction is not practical,” wrote Spillane.
One of the studies Spillane successfully sealed was the “2007 NBA Las Vegas/Gambling Survey.”
Judge rules on sports league ‘standing’
The NBA-commissioned studies — as well as related sealed and confidential papers submitted by co-plaintiffs NFL, NCAA, NHL, and MLB — were then considered by US District Judge Michael Shipp as part of his decision on the “standing” issue.
On Dec. 21, 2012, Judge Shipp ruled in the leagues’ favor and found that they did have standing to further the lawsuit. In his 15-page written decision, Judge Shipp cited three of the numerous secret studies that the five leagues submitted.
One of the three confidential studies cited favorably by Judge Shipp for ruling in favor of the leagues was the “2007 NBA Las Vegas/Gambling Survey.”
“The 2007 NBA Las Vegas/Gambling Survey draws an undisputed direct link between legalized gambling and harm to the Leagues,” wrote Judge Shipp. “Placing professional sports in close geographic proximity to legalized gambling, the exact situation which 17% of survey respondents disapproved, would automatically and immediately occur if legalized sports gambling pursuant to [New Jersey’s law] was implemented.”
With both an NFL and NHL team now headed to Las Vegas, neither the NBA nor any of the other four co-plaintiffs have ever released or publicly refuted the still-sealed studies they submitted to the court in 2012.
Beyond New Jersey sports betting
The comments from Spillane and Goodell show how far the NBA and NFL have shifted since initiating litigation against New Jersey five years ago. The second iteration of the litigation involving the same five leagues against Christie remains pending at the US Supreme Court.
Skillful lawyering in the New Jersey case has provided the five sports leagues – as well as other leagues not part of the lawsuit – with ample time to figure out how to:
- Monetize sports gaming,
- Control the outcome of future legislative efforts, and
- Deftly reverse decades-old policy positions on legalized sports betting.
Neither Spillane’s optimistic outlook for regulated sports wagering nor Goodell’s admission regarding a positive aspect of legalized sports betting are likely to play any role in the current New Jersey lawsuit. However, both new comments could be used by those locked in future litigation against the sports leagues. It would now be more difficult for the five sports leagues to establish legal standing from any alleged injury or irreparable harm stemming from regulated sports betting.
In other words, the quotes by Spillane and Goodell could be ‘beneficial’ to lawyers for West Virginia, Michigan, Pennsylvania and other states with sports betting legalization bills pending, if the issue of standing arises a second time.