Issue of standing could come up in future sports betting cases
Legal Sports Report

NFL’s Dispute With Ezekiel Elliott Flags Issue In Supreme Court Sports Betting Case

NFL Elliott case and NJ sports betting
One of the NFL’s legal arguments in its attempt to suspend Dallas Cowboys running back Ezekiel Elliott for six games could divide the five sports leagues who are suing New Jersey Gov. Chris Christie over sports betting.

Earlier this month, the NFL filed a “motion to dismiss” in Texas federal court against the National Football League Players Association (NFLPA). The NFLPA is the exclusive labor union for NFL players, including Elliott.

The NFLPA raced to the courthouse first in an attempt to prevent Elliott’s suspension from taking effect and filed a lawsuit. The NFL then argued that the union lacked the right to bring the lawsuit at all.

“[E]ach ‘plaintiff must demonstrate standing for each claim he seeks to press and for each form of relief that is sought,’ ” wrote NFL lawyers earlier this month in a court filing obtained by Legal Sports Report.

Standing refers to whether a plaintiff is injured and capable of filing a lawsuit about the alleged injury.

The NFL’s new claims in the Elliott case — that each plaintiff must have standing — may result in a re-evaluation of one of the early key legal issues in the New Jersey sports betting case.

Framing NFL vs. Elliott and NFLPA

The ongoing lawsuit between the NFL and Elliott has been drama-filled from the start.

Elliott was suspended by Commissioner Roger Goodell for six games after the NFL investigated a domestic violence allegation against the running back, with the suspension set to commence during Week 1.

Elliott exercised his right under the league-union collective bargaining agreement to appeal. Elliott’s appeal was heard by Harold Henderson, an NFL-appointed arbitrator. Before Henderson had issued his decision regarding Elliott’s appeal, the NFPLA filed its lawsuit on behalf of Elliott in Texas.

The NFL immediately sought to have the case thrown out of court, arguing that it was premature.

“[T]he NFLPA cannot cure the fatal standing defect that currently exists,” wrote lawyers for the NFL.

The NFL cited a number of previous Supreme Court decisions in making its argument, including a 2013 case that said the US Constitution “demands that an ‘actual controversy’ persist throughout all stages of litigation.”

Federal judge Amos Mazzant rejected the NFL’s standing argument. The case is now on appeal at the US Court of Appeals for the Fifth Circuit.

Sports leagues all on the same page?

Standing has been a long-simmering issue in the New Jersey sports wagering case now teed up for review by the Supreme Court. The issue is critical. If plaintiffs are not injured in a recognizable way, they lack standing and cannot sue at all.

“[T]he proliferation of state-sponsored and approved sports gambling in Atlantic City casinos and at New Jersey racetracks will cause immediate and irreparable harm to plaintiffs,” wrote NCAA, NFL, NBA, NHL and MLB lawyers in an October 20, 2014, complaint that has now landed at the Supreme Court.

The primary claim in the leagues’ 2014 complaint centered on New Jersey’s alleged violation of the Professional and Amateur Sports Protection Act (PASPA). PASPA is the partial sports betting ban passed by Congress 25 years ago.

In 2013, a federal appeals court ruled that the five sports leagues did have standing to further the PASPA lawsuit against Christie in the case that is now called Christie I. The standing issue has not been directly litigated in the current Christie II lawsuit tied to the October 2014 complaint.

Where the league stand on sports betting

The five plaintiffs have spoken with one voice during both New Jersey court cases. Outside the courtroom, however, the sports leagues differ markedly in their individual stances on sports wagering:

  • In a 2014 New York Times op-ed, NBA commissioner Adam Silver proposed that “Congress should adopt a federal framework that allows states to authorize betting on professional sports.” Earlier this month, news broke that sportsbook owner Tillman Fertitta reached an agreement to buy the Houston Rockets franchise.
  • Goodell described the Nevada sports betting regulatory scheme as “beneficial” in announcing that the Oakland Raiders would be moving to Las Vegas while simultaneously reconfirming the NFL’s opposition to legal sports betting on team-level outcomes.
  • An NHL expansion franchise, the Las Vegas Golden Knights, will begin play next month. The NHL opted against requesting that Nevada sportsbooks be barred from offering bets on the team.
  • MLB commissioner Rob Manfred has spoken favorably of Silver’s idea for a “federal framework” and said that his league wants to “try to shape what the new regulatory scheme [for sports betting] looks like.”
  • The NCAA remains opposed to all forms of legal sports gaming, including daily fantasy sports.

Among the five leagues, the NCAA has maintained the most consistent position during the five-plus years the New Jersey case has percolated in the court system. But even the NCAA has opted against filing a PASPA lawsuit opposing New Jersey’s recently-enacted fantasy sports bill permitting contests based on college sporting events.

Likewise, neither the NCAA nor any of the other sports leagues have moved to enforce Judge Shipp’s blanket injunction against New Jersey in connection with the state’s new DFS law.

Early PASPA cases look at standing

The first two PASPA cases in federal court turned on the exact same issue raised by the NFL in its ongoing case against Elliott and the union: standing.

In 2007, a federal judge ruled against a New Jersey resident, James Flagler, who filed a lawsuit arguing that PASPA was unconstitutional. With no “explanation as to how a right to gamble on professional and amateur sports [is] a ‘legally protected right,’ ” the judge dismissed the case for lack of standing.

The same result occurred four years later in a case brought by industry trade group iMEGA, the New Jersey Thoroughbred Horsemen’s Association, and two state legislators, Sens. Raymond Lesniak and Stephen Sweeney.

There, Judge Garrett Brown described standing as “an indispensable part” of the plaintiffs’ case and analyzed whether each of the litigants was sufficiently injured under PASPA to sustain a federal lawsuit.

Calling their asserted injuries as “speculative,” Judge Brown found that both iMEGA and the New Jersey Thoroughbred Horsemen’s Association “lack standing to challenge to constitutionality of PASPA.” Judge Brown reached the identical conclusion for senators Lesniak and Sweeney, finding that both “lack[ed] standing” in attacking PASPA’s constitutionality.

The NFL and Judge Brown cited the same 1992 Supreme Court decision in explaining their rationale.

Picking off PASPA plaintiffs

The Supreme Court can address standing issues in cases before it at any time, even if the plaintiff and defendant avoid the issue.

Other than a brief mention in a footnote last month, Christie’s legal team does not appear to be pursuing it. Lawyers for the New Jersey Thoroughbred Horsemen’s Association are not pressing the standing issue either.

Paul Clement — the lead lawyer for the five sports leagues — may not address standing at all in his legal brief due Oct. 16. As such, there is only a remote chance that one or more of the five sports leagues could be dismissed from the lawsuit due to lack of standing. (Individual sports leagues who opt to settle the case under Supreme Court Rule 46 could be dismissed from the lawsuit at any time prior to judgment).

However, if the NFL is correct that “each ‘plaintiff must demonstrate standing,” the issue will almost certainly be raised in future litigation where sports leagues seek PASPA injunctions to stop states from authorizing sports gambling. This month, Kentucky became the latest jurisdiction to see a new sports betting bill be proposed. No fewer than a dozen other states have draft sports betting bills too.

Whether certain sports leagues — but not others — are injured by state-authorized sports betting will probably be litigated again if PASPA survives in whole or in part after the Supreme Court’s decision in the New Jersey case.

With oral argument in the case likely later this year or early next year, the Supreme Court will probably issue its decision by the end of June 2018.

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Various members of our writing staff contributed to this article.