New Jersey bucks odds with sports betting appeal being granted by SCOTUS
Legal Sports Report

US Supreme Court Says ‘Yes’ To New Jersey Sports Betting Appeal

NJ sports betting
The New Jersey sports betting case is heading to Washington, D.C.

The US Supreme Court granted the state’s petition in its ongoing effort to legalize sports wagering within its borders on Tuesday morning. The court agrees to hear appeals in only a fraction of the cases that are brought before it.

The move bucked expectations, although those hopes had been raised after a delay on Monday.

Still, it’s just one step for New Jersey, which still has to convince the court that it is on the right side of the law.

Game on for NJ sports betting

The grant of an appeal by SCOTUS means the court will get its day in the nation’s highest court. NJ had made its case to the nation’s highest court last fall.

In the SCOTUS appeal, more briefs will be filed and eventually oral arguments will be held in front of the court’s nine justices. New Jersey would have to convince five of them to side with it against PASPA.

A resolution isn’t likely in the case until 2018.

You can see the order granting the petition here.

How did we get here?

The state has twice passed laws attempting to legalize sports betting, but those efforts have been turned back in federal court multiple times. The latest defeat came in the US Third Circuit Court of Appeals in front of an en banc panel of judges in August.

The SCOTUS appeal got a boost when the court asked the US Solicitor General to weigh in. But the SG’s office ultimately recommended that the Supreme Court not hear the appeal.

New Jersey has been fighting a federal law — PASPA — that prohibits single-game wagering. The plaintiffs in the federal case — the NCAA, NFL, MLB, NBA and NHL — have used PASPA to stop New Jersey from altering its law to allow sports betting.

It appears that the Supreme Court is concerned with the idea that PASPA could violate the constitution, via the Tenth Amendment. That amendment deals with states’ rights, and limits what the federal government can tell states to do with its own laws.

PASPA prevents states from altering their laws as it relates to sports betting, either forcing states other than Nevada to keep their prohibitions on it in place or entirely repeal their own laws in order to allow unregulated sports betting.

What happens next for New Jersey sports betting

What happens next now that New Jersey has persuaded the Supreme Court to hear the sports betting case? Sports law attorney Daniel Wallach wrote the timeline for Legal Sports Report:

The case essentially begins anew, as it advances from ‘cert stage’ to ‘merits stage.’ There will be new court filings (including a full briefing on the merits) and an oral argument before the nine Justices in Washington DC (perhaps even later this year). Here are the key actions and related deadlines:

  • Once the Supreme Court has granted certiorari in a given case, the parties are required to file a new set of briefs. These are referred to as “merits briefs.” Unlike the “cert stage” briefs, which focused on whether the court should review the case, the briefs on the merits address why that party should win its case. (For example, this is where I would expect to see the equal sovereignty argument — e.g., the preferential treatment given to Nevada and three other states, to the exclusion of the other 46 states — play a more important role going forward).
  • Once certiorari is granted, the petitioner generally has 45 days to file its opening brief. (See Supreme Court Rule 25). New Jersey’s merits brief would thus be due on August 10, although the parties can always request an extension of the deadline. (Note, however, that the Court rules state that “an application to extend the time to file a brief on the merits is not favored.”).
  • The parties would also be required to file a joint appendix by August 10.
  • Amici curiae (or “friend of the court”) briefs are due one week after the New Jersey merits brief is filed. This would make August 17 the tentative deadline for amici briefs. Look for the same amici filers from the ‘cert stage’ (e.g., the five states, the American Gaming Association, the Competitive Enterprise Institute, and professor Ryan Rodenberg) to file amicus briefs directed to the merits of the case. Given the high-profile nature of this case, I would expect even more groups than the original four to file amici briefs with the Court.
  • The leagues’ response brief would then be due 35 days after New Jersey files its opening merits brief. (See Supreme Court Rule 25).  This would peg it for September 14.
  • New Jersey would then be permitted to file a reply brief no later than 30 days after the leagues’ response brief is filed (but at least seven days before the oral argument). (See Supreme Court Rule 25). Under this tentative schedule, the reply brief would be due on October 14.

Oral argument would likely be scheduled for the fall. The Supreme Court normally hears oral arguments between October and April, scheduling them into monthly two-week sittings during which the court hears two (although sometimes one or three) arguments per day on Monday, Tuesday and Wednesday.

Generally, the court allots one hour of argument time for each case, with each party speaking for 30 minutes.

NJ has beat the odds at several points

SCOTUS hears only about one or two percent of the cases that are brought to it each year. That the New Jersey case is getting its day in the Supreme Court is a win in and of itself.

But also consider other points along the way that the New Jersey case:

  • The Third Circuit granted an en banc appeal, a move that is very uncommon. New Jersey lost that appeal, but it was still a development that spoke to the strength of New Jersey’s case.
  • The SG is called in to weigh in on only a fraction of cases. SCOTUS took that step as well. The SG recommended that the court not take the case. Usually SCOTUS follows the recommendation of the SG, but NJ defied the odds once again.

AGA weighs in

The American Gaming Association issued a statement after the announcement. The group representing casino interest in the US has been pushing for the legalization of sports betting:

“The Professional and Amateur Sports Protection Act (PASPA) of 1992 has failed to protect sports and fans. PASPA, which is approaching its 25th anniversary, is fueling an unregulated $150 billion illegal gambling market that continues to deprive states of vital public funding for services such as law enforcement and infrastructure.

We are pleased the Supreme Court appears to have responded favorably to our arguments as to why they should hear this important case. And we are hopeful their engagement will provide further encouragement for Congress to take the steps necessary to create a regulated sports betting marketplace in the United States.

The gaming industry, and the American Sports Betting Coalition, is committed to working with all relevant stakeholders to build a system that protects states’ rights, fans and the integrity of sports.”

Attorney Daniel Wallach contributed to this story.

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Dustin Gouker
- Dustin Gouker has been a sports journalist for more than 15 years, working as a reporter, editor and designer -- including stops at The Washington Post and the D.C. Examiner.