At least one party in New Jersey is asking for a rehearing of the court case to legalize sports betting in the state.
The particulars of New Jersey’s request
The request is an expected move, as it had to come within two weeks of the verdict. The news came via ESPN’s David Purdum on Twitter:
New Jersey has filed its request for a rehearing with the Third Circuit Court of Appeals in the sports betting case.
— David Payne Purdum (@DavidPurdum) September 8, 2015
The initial request did not come directly from the state of New Jersey, however, according to gaming attorney Christopher Soriano; NJ is the litigant in the case.
NJ Thoroughbred Horsemens Association has filed request for entire Third Circuit to hear #sportsbetting case en banc.
— Christopher Soriano (@CLSoriano) September 8, 2015
Later in the day, the state also filed its request for the rehearing, on the same grounds as the NJTHA did.
Last month, New Jersey lost its appeal in front of a three-judge panel, in a 2-1 decision. New Jersey State Senator Ray Lesniak, the author of the bill that intended to allow the state’s casinos and racetracks to offer sports betting, had indicated that an appeal would be forthcoming.
The action is not technically an appeal. It is a request for an ‘en banc’ review by all the judges in the Third Circuit.
Appealing to the U.S. Supreme Court was also a possible avenue for New Jersey in the case against the NBA, NFL, MLB, NHL, NCAA and the U.S. Department of Justice, which originally filed suit to block New Jersey from offering sports betting.
The grounds for rehearing?
Soriano was among the first to see the filing and tweeted about it, giving the NJTHA’s rationale for asking for a rehearing:
THA’s petition to Third Circuit in #sportsbetting case says 2015 decision is a direct conflict with 2013 decision
— Christopher Soriano (@CLSoriano) September 8, 2015
That references Judge Julio Fuentes, who was the dissenting judge in last month’s appeal. Back in 2013, New Jersey argued that the Professional and Amateur Sports Protection Act (PASPA) — the federal law that prevents sports betting throughout most of the U.S. — was unconstitutional and lost.
From the NJTHA’s filing for the rehearing, which you can read in its entirety here (New Jersey Gov. Chris Christie is also a plaintiff in the case):
There is certainly no person better situated than Judge Fuentes, the author of the majority opinion in Christie I, to understand and explain the conflict between the holdings in Christie I and Christie II.
The majority in Christie II acknowledged, without question, the result of Christie I that PASPA was constitutional, but rejected the reasoning that supported that result. Indeed, the reasoning of the majority in Christie II is remarkably similar to the reasoning of the dissent in Christie I, but without reaching the conclusion of unconstitutionality to which that reasoning inevitably leads.
What’s next for the case?
Now, observers will wait to see if a rehearing will be granted. En banc rehearings are very rare, and there are differing opinions on the likelihood of one happening. On the negative side:
(1/2) 3rd Circuit unlikely to grant en banc review in NJ PASPA case. 1) Decision does not conflict with other circuit cases and … — Michael M. (@Grange95) August 25, 2015
(2/2) 2) case is probably not one of “exceptional importance”. See IOP 9.3.1 http://t.co/9uGOBZo1tR #SnowballInHell — Michael M. (@Grange95) August 25, 2015
Re en banc rehearing in NJ PASPA case: In 2014, 3rd Circuit decided 2,402 cases on the merits. ONE en banc decision. http://t.co/O1GXLec2p2 — Michael M. (@Grange95) August 25, 2015
The Washington Post outlined the flip side, that the sports betting case has the possibility of seeing a rehearing:
En banc hearings are rare, but this case may fit the narrow definition that would earn a second look, according to Daniel Wallach, a sports and gaming attorney at Becker & Poliakoff in Fort Lauderdale, Fla.
“An en banc hearing is an extraordinary occurrence, but this case has all the boxes checked that you’d be looking for,” Wallach said.
One of those major boxes, Wallach said, is whether the case is one of great public importance.
“And you have that here,” he said. “This not only affects New Jersey, but the legality of sports gambling across America.”
If a rehearing is granted, then New Jersey would have to convince a majority of the Third Circuit judges of the merits of its side of the case, after losing the initial appeal. If the rehearing is not granted, a Supreme Court appeal is also possible, but would also be a long shot for New Jersey to get another day in court.
Beyond those two avenues, the possibility of legalizing sports betting through the courts would become nearly impossible, as legal precedent would appear to be set if New Jersey were to fail to receive a rehearing or an appeal, or to win should it be granted either. A repeal of PASPA would then likely be the only recourse for states wanting to offer sports betting.
