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New Jersey sports betting case goes back to court17 February 2016
That was the prevailing thought from most observers that were inside a jam-packed courtroom this morning for a rare rehearing regarding the state’s fight against the NCAA and the four professional sports leagues to allow sports betting.
"Just from reading the judge's faces you can never tell, but from the tone of the some of the questions they had I think it's more than likely that the leagues win a slim majority decision," predicted gaming lawyer Christopher Soriano, a partner at the law from Duane Morris, who attending the hearing.
Among many gaming experts in the courtroom, Soriano wasn't alone in his opinion:
Heading into today’s rehearing there was, however, reason for optimism for the Garden State. The leagues appeared to score a knockout blow in their fight to keep sports betting out of the state back in August when a three-judge panel at the 3rd Circuit ruled against New Jersey in a 2-1 majority decision.
But in October, in a rare move, the court granted today’s rehearing en banc, meaning the state would get another chance to plead its case, this time in front of 12 judges. The goal was to convince at least seven of these judges today that the sports betting law introduced by state Senator Ray Lesniak complies with the Professional and Amateur Sports Protection Act (PASPA), which prohibits states – except Nevada, Oregon, Montana and Delaware – from "authorizing, sponsoring, operating or licensing sports betting."
PASPA is the root of the entire case, as New Jersey has been trying to sidestep it ever since Gov. Chris Christie signed a law that would allow sports betting in the state back in 2012, only to see it blocked in federal court.
Which brings us to today's hearing. According to Soriano, the proceedings were held in the larger courtroom in order to accommodate the large crowd, but it was still standing room only.
"It seemed like anyone who had a stake in this fight was represented in the room in some form or fashion," he said.
The hearing lasted just over an hour and began with former U.S. Solicitor General Theodore Olson presenting a 30-minute oral argument for the state, followed by a few minutes from Ron Riccio of the Thoroughbred Breeders' Association of New Jersey.
Then it was the leagues' turn. Paul Clement, a former U.S. solicitor general, represented the leagues, and after speaking for 10 minutes he turned it over to Paul Fishman, the U.S. Attorney for the District of New Jersey. Both made their case that because of PASPA, the state has no legal standing to offer sports betting.
Olson then presented a rebuttal for the state, and throughout the hearing the judges fired questions, pressing each side equally.
Soriano said it was difficult to get a read on what the judges were thinking. While a few of them were silent throughout, Soriano said you could definitely "sense a level of skepticism about the state's position" from those that had questions.
"Now, that doesn't necessarily mean they were leaning one way or another, they may have been just trying to find the boundary of the argument," he said. "One point I think the judges were struggling with was that while PASPA clearly permits some sort of partial repeal of the state's prohibition of sports betting, the question is where do you draw the line? At what point does the repeal become authorization? I don't think there is a clear answer to that question."
A decision isn't expected for months, most likely late spring and while the odds are stacked against the state, Soriano said there is still hope for legislated sports betting.
"The state was facing an uphill battle because, since they lost in the lower court, they have to convince these judges that another set of judges made a mistake in interpreting the law, and that's difficult to do," he explained. "But let's face it: The legalization of sports betting had been a dead issue for 20 years before this. The fact that this case has brought so much attention to the issue has helped other states, like Pennsylvania, look into it.
"We've all learned that it's not going to happen overnight, but this has made people take notice that the gaming industry is very different than what it was like when PASPA was passed and that's helping move the ball toward a PASPA repeal. But when it will actually happen is anyone's guess."
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