Never Walk Away From The Table When You’re On A Heater - Fordham Intellectual Property, Media & Entertainment Law Journal
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Never Walk Away From The Table When You’re On A Heater

Never Walk Away From The Table When You’re On A Heater

With the Third Circuit’s denial of New Jersey’s request for an en banc hearing in the ongoing sports gaming case, the sports league plaintiffs (the NBA, NFL, MLB, NHL, and NCAA) must be feeling pretty lucky. After all, both the U.S. District Court and the Third Circuit Court of Appeals have held that the Professional and Amateur Sports Protection Act (“PASPA”) is constitutional and therefore enjoined New Jersey from licensing sports gambling in casinos and race tracks.

The denial of the rehearing makes the score 3 to 0 in favor of the leagues and leaves their opponent with the lone hope of a favorable Supreme Court review.  According to USA Today figures, SCOTUS accepts less than 1 percent of petitions filed for writ of certiorari, meaning that the odds are severely stacked against New Jersey. Certainly, nobody would blame the leagues if they proverbially stepped away from the table and waited to see if the petitioners hit the long shot. Nevertheless, its an unwritten rule of gambling to never walk away when you are on a roll and there is an outside chance that they actually join the Garden State’s petition for Supreme Court review.

Although rare, this type of move is not unprecedented. In 2009, after winning in both the District Court and the Seventh Circuit Court of Appeals, the NFL joined in American Needle’s petition for writ with the hope that their earlier victories would made into a hard line rule. They argued in their brief: “[t]he NFL Respondents are taking the unusual step of supporting certiorari in an effort to secure a uniform rule that (i) recognizes the single-entity nature of highly integrated joint ventures and (ii) obviates the uncertainty, chilling effects, and forum shopping that inevitably result from the current conflict among the circuits.

While the Third Circuit may have essentially ended New Jersey’s attempt to legalize sports gambling, bills seeking to legalize sports betting were introduced in both California and Minnesota this year. Therefore, the potential for a circuit split is on the horizon. Furthermore, according to attorney Daniel Wallach, the case brings up at least four unsettled federal questions, specifically “(1) whether PASPA is a rational exercise of Congress’s power under the Commerce Clause; (2) whether PASPA violates the anti-commandeering principle; (3) whether PASPA’s exemptions violate the equal sovereignty doctrine; and (4) whether the anti-commandeering principle can be implicated even where Congress does not direct the states to take some affirmative action, but simply prohibits the states from acting in an area where there is no underlying federal regulatory or deregulatory scheme to protect.” This final question was the focus of Third Circuit Judge Vanaskie’s 22-page dissent.

Therefore, rather than wait until there is a circuit split, the leagues may prefer to double down and try to ride their current momentum into ending the expansion of sports betting once and for all. The move is not likely, but there is precedent, and their string of recent success may give them the confidence they need to stay in the ring and go for the knockout blow.

Clark Kosene

Clark Kosene is a second year student at Fordham University School of Law and a staff member of the Intellectual Property, Media and Entertainment Law Journal. His interest in IP stems from an unhealthy obsession with Indiana sports (which, thanks to Peyton Manning, is now more than just basketball). He also enjoys going to art museums with the hope that either some culture will rub off on him or, rather, that people will just give him the benefit of the doubt.