PBS: How significant is this case?

McCann: It's a very significant case, particularly because it's past the motion-to-dismiss stage. A motion to dismiss is an argument by the defendant that, even if all of the facts are true, there's no viable legal claim. Well, the NCAA lost the motion to dismiss, and it's now going to trial. Normally, cases against the NCAA have not succeeded, either because of motions to dismiss or because they're settled. O'Bannon, though, seems to signal that he isn't going to settle, that he's actually going to go forward with this case, and he's going to try to win it.

And if he wins it, it would mean that retired players, including those who have been retired for a while, should be compensated for their use and image and likeness that the NCAA contracted away.

PBS: Well, you said something called the "right of publicity." What is that?

McCann: The right of publicity is that we have certain proprietary interests in our identity, that if somebody is going to try to make money off our image, our likeness, our name, that we should be compensated for that. Now, there are exceptions to that. There's a newsworthiness exception, for instance. If we're in the public news because of something we did or because we happen to be there, we're not going to be compensated. There's also an exception for parody. In other words, if we went on a television show and somebody parodied our appearance, we wouldn't be compensated for that.

But if somebody is just trying to make money off our image or likeness, we have a legal right, under state laws, to be compensated for that.

PBS: Let me put it a different way. O'Bannon, all the college athletes today, student-athletes, they all sign this form, right? And it's our understanding that this form has a clause in it that says you're signing away all your rights, basically, to the NCAA and to the school that you went to. So what's this litigation all about?

McCann: O'Bannon would argue that the Student-Athlete Statement, which, as you noted, Lowell, is required of students to sign if they want to play college sports -- students who may be 17 or 18 years old know that if they don't sign that statement, they will not be able to play sports. And if they can't play sports, they may not get their scholarship. And if they don't get their scholarship, they may not be able to afford school. So O'Bannon is saying, well, that's not really much of a choice, is it, because you're required to sign this form.

Not only does it seem as if we don't have a choice, but the form itself shouldn't have the meaning that the NCAA seems to perceive. The form means that players give up their proprietary interest while they're in college, so the NCAA can use their likeness and image while they're in college to promote the NCAA and to promote the colleges that the players are associated with.

O'Bannon is saying, even if that's OK, which he doesn't seem to concede, but even if that's OK, it shouldn't continue after I've left school, because the NCAA, as it's argued, is concerned about the exploitation of student-athletes; that if they were to be able to do their own deals while in college, there would be charlatans who exploit players and the like. But O'Bannon is saying: "I'm 39 years old. Why is it that I need to be protected by the NCAA nearly 20 years after I played college basketball? I should have a right to get paid. That form shouldn't take the effect that the NCAA seems to interpret."

* * *

PBS: Yeah. But I mean, the players who make the money, because there's a very small group of players who bring in that revenue, right?

McCann: Sure. I think you could say that the superstar player generates a disproportionate share of the fan's interest of the commercialization of sports. When O.J. Mayo plays one year [of basketball] at the University of Southern California, and he's put on the cover of the brochure, and he's highlighted, he clearly is generating revenue for the University of Southern California. This is somebody who is attracting renewed interest in a program that had not attracted a lot of interest in years prior.

I don't know if the 11th and 12th persons on the bench are generating that same value. They're clearly not. You know, the random offensive linemen on a top college football team, whom we don't know the name of, how much value is that player contributing? Well, in the sense that he's playing on a team that's doing really well, he's contributing value. But independently, how much value is he contributing? I think that's a harder call. And I think that's what is going to make compensating athletes a difficult challenge, certainly not an impossible challenge, but it's figuring out who gets what ... If it were a professional league, then we would know what they get, because there's a market for services.

* * *

PBS: But this is the only country that I know of that has sports teams associated with universities and institutions of higher learning in a billion-dollar industry, and is tied that way. I mean, this is a pretty unusual situation, isn't it?

McCann: It is, and in other countries, for instance in Europe, we don't see the same college sports system. We see a professionalization of youth sports. We see if you're a 13- or 14-year-old star basketball player, you don't have to wait until you're 19 years old and one year removed from high school to play in the NBA. You can sell your services as a teenager and make money at that point, or you can join some other kind of pro league in another part of the world.

Only in the United States do we have this very extensive and popular system of college sports that has had the effect of reducing the compensation and, in some cases, eliminating compensation for those who are playing the sports. When you couple that with age restrictions in order to enter the NFL and the NBA -- and, of course, in college sports, at least 90 percent of the revenue is generated by football and men's basketball -- then you could see a real injustice.

You have players who can't turn pro because of an age restriction. Then they have to go to college, if you will, to play maybe for a school that they have no interest [in] being a student at. Where do they go? Well, they can go to Europe if they're a basketball player, perhaps, but not many have done so. They're in a difficult situation. I think the ones who are generating so much of the wealth, the star players, are the ones who are so clearly disadvantaged by this system.

PBS: So it's an antitrust case.

McCann: It is an antitrust case, because the current system is set up in a way that boycotts players who would otherwise be commercially viable from being able to use their services. And that, arguably, makes the market less competitive.

Now, the question is, who gets sued there? Do you sue the professional sports leagues and the players' associations that have created barriers to entry? Well, that's been done in the past. The difficulty is that courts say, if the owners and the players get together and negotiate a rule, it's largely immune from federal antitrust law. And of course, you could say, well, that doesn't seem fair, because the players' association is looking out for current players. Why should they create a barrier that prevents prospective players from entering the league, because if they could enter, they're going to take jobs away from the 12th guy on the bench. That doesn't seem like a fair system. But that's how federal labor and antitrust laws are set up. Current employees can negotiate on behalf of prospective employees. It may seem fair in some contexts, but I think in professional sports it really isn't.

* * *

Two long-form segments anchor the program, setting the stage for an extended roundtable panel hosted by Bryant Gumbel and featuring former University of Michigan head football coach Rich Rodriguez, outspoken college basketball commentator Billy Packer and print journalist Jason Whitlock of FoxSports.com. The group will address a host of issues relating to the NCAA and the regulation of its 1,055 member schools.

Segments include:
*The Money Trail. Every year, thousands of talented young student-athletes sign letters of intent and obtain full-ride athletic scholarships (tuition and board) from the biggest, wealthiest programs in America, effectively giving up all rights to revenue generated by their participation, including TV rights fees, merchandising and ticket sales. But with a dramatic increase in revenue from top programs and athletes’ growing awareness of their contribution, many are starting to ask if there should be financial compensation. REAL SPORTS correspondent Bernard Goldberg examines the notion of student-athletes remaining untainted amateurs while generating pro-type revenue for their schools. Are they getting a fair shake?

*Pay to Play. Should athletes at Division I programs be financially compensated? And would that curb the headline-grabbing stories of inappropriate payments and benefits? More and more standout athletes in top programs are seemingly putting their education on the back burner to focus on what’s really important – the money. Those destined for the NBA and NFL face the moral dilemma of dealing with “advisors” and “street agents” who can deliver the funds and material items they desire while in school in exchange for a promise of future reciprocation when they reach the pros. REAL SPORTS correspondent Andrea Kremer delves into the controversial and complex subject of premium college-bound athletes receiving benefits that are prohibited by the NCAA.

Rachel Blumenfeld, Dog baiting abatement: using nuisance abatement to regulate dogfighting, 17 SPORTS LAWYERS JOURNAL 1 (2010)

Victor S. Broccoli, Williams v. NFL: the Eighth Circuit flags the NFL for interference with state drug testing laws, 17 SPORTS LAWYERS JOURNAL 283 (2010)

Bradley R. Bultman, Comment, Drafted player compensation: incorrectly hidden in the afternoon shadow of the nonstatutory labor exemption, 11 FLORDIA COASTAL LAW REVIEW 687 (2010)

Ashlee A. Cassman, Bring it on! Cheerleading vs. Title IX: could cheerleading ever be considered an athletic opportunity under Title IX, and if so, what implications would that have on university compliance?, 17 SPORTS LAWYERS JOURNAL 245 (2010)

Steve E. Cavezza, Can I see some ID? An Antitrust Analysis of NBA and NFL Draft Eligibility Rules, 9 UNIVERSITY OF DENVER SPORTS & ENTERTAINMENT LJ 22 (2011)

Sonali Chitre, Technology and copyright law—illuminating the NFL’s ‘blackout’ rule in game broadcasting, 33 HASTINGS COMMUNICATION & ENTERTAINMENT LAW JOURNAL 97 (2010)

Reid Coploff, Exploring gender discrimination in coaching, 17 SPORTS LAWYERS JOURNAL 195 (2010)

Chris Deubert, What’s a ‘Clean’ Agent to Do? The Case for a Cause of Action Against a Players Association, 18 VILLANOVA SPORTS AND ENTERTAINMENT LAW JOURNAL 1 (2011)

Marielle Elisabet Dirkx, Comment, Calling an audible: the Equal Protection Clause, cross-over cases, and the need to change Title IX regulations, 80 MISSISSIPPI LAW JOURNAL 411 (2010)

Marc Edelman & David Rosenthal, A sobering conflict: the call for consistency in the message colleges send about alcohol, 20 FORDHAM INTELLECTUAL PROPERTY, MEDIA & ENTERTAINMENT LAW JOURNAL 1389 (2010)

Adam Epstein, Teaching Torts with Sports, 28 JOURNAL OF LEGAL EDUCATION 117 (2011)

Adam Epstein, Religion and Sports in the Undergraduate Classroom: A Surefire Way to Spark Student Interest, 21 SOUTHERN LAW JOURNAL 133 (2011)

Lauren A. Fields, Comment, Who owns dat?, 13 TULANE JOURNAL OF TECHNOLOGY & INTELLECTUAL PROPERTY 251 (2010)

John A. Fortunato & Shannon E. Martin, American Needle v. NFL: Legal and Sponsorship Implications, 9 UNIVERSITY OF DENVER SPORTS & ENTERTAINMENT LAW JOURNAL 73 (2011)

Nathaniel Grow, Defining the “business of baseball”: a proposed framework for determining the scope of professional baseball’s antitrust exemption, 44 UC DAVIS LAW REVIEW 557 (2010)

Benjamin B. Hanson, Comment, Defend the Williams Wall, leave professional sports drug testing policies in shambles: the decision and consequences of Williams v. NFL, 33 HAMLINE LAW REVIEW 327 (2010)

Casinova O. Henderson, How much discretion is too much for the NFL Commissioner to have over the players’ off-the-field conduct?, 17 SPORTS LAWYERS JOURNAL 167 (2010)

Robert S. Jeffrey, Note, Beyond the hype: the legal and practical consequences of American Needle, 11 FLORIDA COASTAL LAW REVIEW 667 (2010)

Brandon Johansson, Note, Pause the game: are video game producers punting away the publicity rights of retired athletes?, 10 NEVADA LAW JOURNAL 784 (2010)

Richard G. Johnson, Submarining due process: how the NCAA uses its restitution rule to deprive college athletes of their right of access to the courts...until Oliver v. NCAA, 11 FLORIDA COASTAL LAW REVIEW 459 (2010)

Michael Kim, Mixed martial arts: the evolution of a combat sport and its laws and regulations, 17 SPORTS LAWYERS JOURNAL 49 (2010)

Camalla M. Kimbrough, Comment, Upon further review: how the NFL’s exclusive licensing agreement with Reebok survives antitrust scrutiny despite the League’s flawed single-entity defense, 13 TULANE JOURNAL OF TECHNOLOGY & INTELLECTUAL PROPERTY 235 (2010)

Jeffrey F. Levine & Bram A. Maravent, Fumbling away the season: will the expiration of the NFL-NFLPA CBA result in the loss of the 2011 season?, 20 FORDHAM INTELLECTUAL PROPERTY MEDIA & ENTERTAINMENT LAW JOURNAL 1419 (2010)

Joseph A. Litman, Note, Tremendous upside potential: how a high-school basketball player might challenge the National Basketball Association’s eligibility requirements, 88 WASHINGTON UNIVERSITY LAW REVIEW 261 (2010)

Robert A. McCormick & Amy Christian McCormick, A trail of tears: the exploitation of the college athlete, 11 FLORIDA COASTAL LAW REVIEW 639 (2010)

Frank P. McQuillan, Minnesota’s miracle...on ice: the transfer-mation of student-athletes into free agents, 17 SPORTS LAWYERS JOURNAL 135 (2010)

Matthew J. Mitten & Hayden Opie, “Sports law”: implications for the development of international, comparative, and national law and global dispute resolution, 85 TULANE LAW REVIEW 269 (2010)

Brandon D. Morgan, Oliver v. NCAA: NCAA’s no agent rule called out, but remains safe, 17 SPORTS LAWYERS JOURNAL 303 (2010)

Anna Peterson, Comment, But she doesn’t run like a girl...: the ethic of fair play and the flexibility of the binary conception of sex, 19 TULANE JOURNAL OF COMPARATIVE & INTERNATIONAL LAW 315 (2010)

Adam Primm, Salary arbitration induced settlement in Major League Baseball: the new trend, 17 SPORTS LAWYERS JOURNAL 73 (2010)

J. Chadwick Schnee, Wrestling with retaliation: pinning down the Burlington “dissuading” standard under Title IX, 17 SPORTS LAWYERS JOURNAL 223 (2010)

Aaron Shepard, Note, Football’s stormy future: forecasting the upcoming National Football League labor negotiations, 33 COLUMBIA JOURNAL OF LAW & ARTS 527 (2010)

Patrick Donohue Sheridan, An Olympic solution to ambush marketing: how the London Olympics show the way to more effective trademark law, 17 SPORTS LAWYERS JOURNAL 27 (2010)

Brett T. Smith, The tax-exempt status of the NCAA: has the IRS fumbled the ball?, 17 SPORTS LAWYERS JOURNAL 117 (2010)

Jeffrey J.R. Sundram, Comment, The downside of success: how increased commercialism could cost the NCAA its biggest antitrust defense, 85 TULANE LAW REVIEW 543 (2010)

Seagull Haiyan Song, How should China respond to online piracy of live sports telecasts? A comparative study of Chinese copyright legislation to US and European Legislation, 9 UNIVERSITY OF DENVER SPORTS & ENTERTAINMENT LAW JOURNAL 1 (2011)

Robert J. Thorpe, Way out in left field: Crespin v. Albuquerque Baseball Club rejects nearly one hundred years of American jurisprudence by declining to adopt the baseball rule in New Mexico, 17 SPORTS LAWYERS JOURNAL 267 (2010)

Glenn M. Wong, Warren Zola and Chris Deubert, Going Pro in Sports: Improving Guidance to Student-Athletes in a Complicated Legal and Regulatory Environment, 28 CARDOZO ARTS & ENTERTAINMENT LAW JOURNAL 553 (2011)

Glenn M. Wong and Chris Deubert, National Basketball Association General Managers: An Analysis of the Responsibilities, Qualifications and Characteristics, 18 VILLANOVA SPORTS & ENTERTAINMENT LAW JOURNAL 213 (2011)

Carlos will speak at noon on Thursday, March 31, 2011 at the Marlyn E. Lugar Courtroom in the WVU Law Center.

Specifically, Dr. Carlos will discuss the national platform athletes are given, as the American public has become more and more enthralled in the commercialized sports industries. He will discuss how and if African American athletes utilize this platform as he and Smith did in 1968. Carlos won the bronze medal in the 200-meter dash behind Smith and Australian Peter Norman. While receiving their medals, Smith and Carlos raised gloved fists as a silent protest of racism and economic depression among oppressed people in America. In response, International Olympic Committee president Avery Brundage banned the two men from the Olympic Village and forced them from the United States Olympic team. Carlos and Smith were embattled for years following their bold and meaningful protest.

The event is free to the public and will be webcast live at http://law.wvu.edu/carlos.

Labels: african american athlete, john carlos

What: Business of Amateur Sports Symposium at Southwestern Law School

When: April 8, 2011 (9:15 a.m. – 7:00 p.m.)

Where: Southwestern Law School (map)

The Business of Amateur Sports is a one-day symposium featuring leading experts exploring some of the most timely and important questions facing collegiate sports today: regulation of agents and discipline of student athletes; the latest medical science on sports-related concussions, and how it may impact safety rules and legal liability; media deals and marketing in college sports, including the use of student-athlete names and likenesses; and the federal antitrust implications of college football’s Bowl Championship Series.

Schedule

9:15 - 10:00 a.m.: Check-in/Coffee

10:00 - 11:30 a.m.: Pre-Professional Athletes in an Amateur World: NCAA Rules, State Laws, Agents and Extra Benefits

• Bob Myers, NBA Agent, Wasserman Media Group
• Warren K. Zola, Assistant Dean for Graduate Programs, Boston College’s Carroll School of Management
• Marc Isenberg, Principal, INsight Sports Business and Author, Money Players: A Guide to Success in Sports, Business & Life for Current and Future Pro Athletes and Go Pro Like A Pro
• Moderator: Darren Heitner, CEO, Dynasty Athlete Representation and Associate, Koch Parafinczuk & Wolf

11:30 - 11:45 a.m.: Break

11:45 a.m. - 12:45 p.m.: Concussions, Law and Amateur Sports: Implications of Emerging Medical Science for the Regulation of Student Athlete Safety

• Dr. Jason P. Mihalik, Assistant Professor, Department of Exercise and Sport Science, University of North Carolina at Chapel Hill
• Daniel E. Lazaroff, Director, Loyola Law Sports Institute, Professor of Law and Leonard Cohen Chair in Law and Economics, Loyola Law School
• Moderator: David Fagundes, Associate Professor of Law, Southwestern Law School

1:00 - 2:30 p.m.: Lunch and Special Guest Conversation

• Jim Harrick, Former NCAA Basketball Head Coach and Broadcaster, in conversation with Jeff Fellenzer, Adjunct Professor, USC’s Annenberg School for Communication & Journalism

2:45 - 4:15 p.m.: Big Brands and Bigger Budgets: Marketing, Merchandising and Media Rights in College Sports

• Alonzo (“Al”) Wickers, IV, Partner, Davis Wright Tremaine
• Stuart M. Paynter, The Paynter Law Firm
• Jeremy Langer, Vice President Collegiate Sports and Rights Acquisitions, Fox Sports
• Moderator: Debbie Spander, Vice President, Business Affairs, MTV Entertainment and Director, Sports Lawyers Association

4:15 - 4:30 p.m.: Break

4:30 - 5:30 p.m.: The BCS and Competition: An Antitrust Analysis of College Football’s Bowl Championship Series

• Gary R. Roberts, Dean and Gerald L. Bepko Professor of Law, Indiana University School of Law – Indianapolis
• Alan G. Fishel, Partner, Arent Fox
• William (“Tripp”) L. Monts, III, Partner, Hogan Lovells
• Moderator: Vered Yakovee, Law Offices of Vered N. Yakovee and Adjunct Associate Professor of Law, Southwestern Law School

5:30 - 7:00 p.m.: Cocktail Reception

Cost: $85 (General admission), $25 (Students). Register here. 6 CLE credits offered.

Join us for an evening with a distinguished group of sports law industry professionals.

Monday, March 28th, 7pm - 9pm
Rutgers School of Law Camden
Rutgers Camden Campus Center – Multi Purpose Room
326 Penn Street, Camden NJ

Prior to the panel, all guests are invited to attend a reception and dedication of the Clark Commons at 5:30 pm on the law school Bridge (the Clark Commons).

Panelists include:

George Atallah
NFL Players Association Assistant Executive Director of External Affairs

Domonique Foxworth
Baltimore Ravens, NFL Players Association Executive Committee Member

James Ivler
Registered NFL Agent, Sportstars, Inc.

Adam Taliaferro
Associate at Duane Morris, former Penn State football player

Please RSVP to Terry Moffett (tmoffett@camden.rutgers.edu or 856.225.6430).

Sponsored by the Rutgers School of Law Camden Sports & Entertainment Law Society, Rutgers Camden Law Recent Graduate Council, the Rutgers School of Law Camden Office of Career Planning and the Entertainment, Arts & Sports Law Section of the New Jersey State Bar Association.

According to the official police report, Bryant and three friends were stopped by the uniformed, off-duty officers working security shortly before 8 p.m. at the popular shopping center after they were observed "wearing their pants halfway down their hips exposing their underwear."

The police asked the men to pull their pants up.

"Mr. Bryant’s response to the request was profanity laced and [NorthPark] center representatives felt the outburst merited a request for Mr. Bryant to leave the premises," according to a Dallas police statement issued Tuesday evening.

"What the [expletive] are you stopping me, like I stole something," Bryant was quoted as saying by a News 8 source. "I'm not leaving until my attorney and my representative get here."

Police said Bryant continued cursing as the off-duty officers escorted him to his vehicle.

"Mr. Bryant entered his vehicle but parked in a fire lane still refusing to leave, necessitating a request for on-duty officers to respond to the location," the Dallas police statement said.

Valley News: Overall, how much leverage do you feel like the players have?

Michael McCann: I think they have a lot of leverage until they start missing game checks. When the fall comes, if they're not getting paid their normal salaries like they would during the season, it will be interesting to see how unified they are. Right now, they're unified in the offseason, but when the game checks are missed, the players will be relying on $60,000 lockout insurance from the Players Association. For us, that sounds good, but if you're making $1.9 million, which is the average salary in the NFL, I don’t know how that’s gong to play out. Will players have enough savings?

They've been encouraged to save, particularly during the last several years with the future of the CBA unclear, but I think a lot of players live lifestyles that are very expensive and don't lend themselves to going a long stretch of time without getting paid.

Owners generally have the leverage there, because they have more wealth, their pockets are deeper and they have other businesses that generate income for them. Some of the owners would suffer, yes, especially the ones who need to pay off debt for their stadiums, but the owners generally are more equipped to withstand a long period of no football than the players.

Will 2011 Be the Year That Jack Johnson Scores His Final Knockout?

Arizona Senator John McCain and New York Representative Peter King announced recently that they plan to reintroduce a Congressional resolution urging a pardon of former heavyweight champion Jack Johnson, who was convicted in 1913 of violating the Mann Act for allegedly transporting a woman across state lines for immoral purposes by an all-white jury. A racially polarizing case for generations and blot on the history of the American jury system, here’s hoping the resolution finally passes after several previous efforts and President Barack Obama, the first African-American president, takes the opportunity to pardon Johnson, the first African-American to win world heavyweight championship.

Congratulations to the all of the participants in the 2011 Tulane Law School Moot Court Mardi Gras Invitational Sports Law Competition. All of the judges were impressed with the quality of the teams from the first round through the finals. I hope you enjoyed the competition and were able to find some time to take advantage of all that New Orleans has to offer (well, maybe not all of it) during Mardi Gras. Special thanks to Mary Jones and the Tulane Moot Court and Diana Taylor and the members of the Sports Lawyers Journal for the help in putting together the competition. Thanks also to Stan Kasten for serving as our celebrity guest judge in the finals.

Yale Law School

Yale Entertainment and Sports Law Association hosts a Panel Discussion on Sports and the Law: Current Issues

April 4 2011 6:00 to 8:00 p.m.
Room 120

Moderator:

MICHAEL MCCANN (Vermont Law School Professor of Law/Director of Sports Law Institute & Sports Illustrated Legal Analyst)


Panelists:

ALAN MILSTEIN (Sherman Silverstein Co-Managing Shareholder; has represented Carmelo Anthony, Allen Iverson, Eddy Curry, Maurice Clarett, and many other star athletes in litigation and other matters)

ERIC NYQUIST (NASCAR Vice President of Strategic Development)

CHRIS PARK (Vice President, Labor Economics and Deputy General Counsel, Labor for the Office of the Commissioner of Baseball, Major League Baseball)

JAY REISINGER (Farrell & Reisinger partner; manages firm's sports law practice; has represented Josh Hamilton, Alex Rodriguez, K-Rod, Andy Pettite, Sammy Sosa and many other star players, either before Congress, the media, or in arbitration)

BRAD RUSKIN (Proskauer partner; head of the litigation section of firm's Sports Law Group; represented ATP in Deutscher Tennis Bund, et al vs. ATP World Tour)

MIKE ZARREN, Boston Celtics Assistant General Manager and Associate Counsel (plays key role in talent evaluation and salary cap management for the team, including in the famed deal for Kevin Garnett)

The prospect of Vegas-style sports gambling in New Jersey took a hit on March 7, 2011 when Chief Judge Garrett E. Brown of the United States District Court of New Jersey dismissed a long-percolating federal lawsuit challenging the constitutionality of the Professional & Amateur Sports Protection Act (“PASPA”). The 19 page opinion has yet to be posted on the court’s website, but the decision is available via PACER. Passed in 1992, PASPA prohibits sports betting in all states except for Nevada, Delaware, Montana, and Oregon. New Jersey State Senator Raymond J. Lesniak and Stephen M. Sweeney, along with a number of pro-gambling trade associations, sought to invalidate PASPA on constitutional grounds, thereby allowing New Jersey (and, presumably, other states) to offer state-regulated sports wagering. New Jersey Governor Chris Christie declined the opportunity to intervene in the lawsuit as an additional plaintiff. The lawsuit suit was filed in 2009. U.S. Attorney General Eric H. Holder, the U.S. Attorney for the District of New Jersey, and unnamed sports organizations were listed as defendants.

The plaintiffs put forth a multi-pronged argument based on the U.S. Constitution. Specifically, they claimed that PASPA violates the following constitutional provisions: (i) the Commerce Clause; (ii) the First Amendment’s protection of expression and assembly; (iii) the Tenth Amendment; (iv) the Eleventh Amendment; (v) the Due Process Clause; and (vi) the Equal Protection Clause. Instead of contesting the lawsuit on substantive grounds, the U.S. government moved to dismiss the lawsuit procedurally for lack of standing and failure to state a claim.

Citing Supreme Court cases familiar to every first year law student, Chief Judge Brown addressed the standing issue. The judge cited Lujan v. Defenders of Wildlife for Article III’s requirement that federal judicial review be limited to actual cases and controversies. Likewise, Chief Judge Brown quoted FW/PBS, Inc. v. City of Dallas for the proposition that the plaintiff must “clearly…allege facts demonstrating that [it] is a proper party to invoke judicial resolution of the dispute” (p. 6). The plaintiff trade associations were found to have no standing on this basis.

In connection with New Jersey Senators Lesniak and Sweeney, the judge provided additional reasoning and specifically addressed the fact that the New Jersey legislature recently passed Senate Concurrent Resolution No. 132 (“SCR 132”). If approved by popular vote in November 2011, SCR 132 would amend the New Jersey constitution “to permit the legislature to authorize sports wagering at Atlantic City casinos and certain horse racetracks, so long as the gambling did not extend to sporting events taking place in New Jersey or involving New Jersey collegiate teams” (p. 4). The judge posited that the Senators’ SCR 132-related argument for standing “puts the cart before the horse” given that SCR 132 has yet to be voted on, let alone approved. Accordingly, Chief Judge Brown found Senators Lesniak and Sweeney to lack standing to challenge PASPA’s constitutionality. Under New Jersey law, “the proper party to bring such a claim would be New Jersey’s attorney general, but the governor and attorney general have not intervened in this lawsuit” (p. 18).

It isn’t particularly surprising that certain New Jersey lawmakers are looking to sports-based gambling as a way to increase state revenue. According to a recent Pew Research report, 33% of American men gamble of sporting events. In 2009, $2.57 billion was wagered legally in Nevada, although the amount of action in Nevada-based sports books probably only represents 1% of all sports bets made nationwide. The illicit nature of some gambling, coupled with the availability of the Internet, has caused the popularity of off-shore sports wagering to explode during the past fifteen years. The passage of the federal Unlawful Internet Gambling Enforcement Act in 2006 has done little to diminish online/offshore sports gambling. As a result, internet sports wagering is largely unregulated, potentially depriving certain states and municipalities of tax revenue. A 2011 Contemporary Economic Policy by Douglas M. Walker and John D. Jackson article investigated whether state-sponsored gambling increases revenue. The authors found that lotteries and horse racing did contribute to the bottom line, but casinos and greyhound racing did not.

The future viability of sports betting in New Jersey now seemingly rests with the state’s voters. If SCR 132 is approved, it is possible (probable?) that Governor Christie and the New Jersey Attorney General will feel compelled to re-institute the lawsuit. Given that Chief Judge Brown decided the case on procedural, not substantive, grounds, such a reincarnation would not have the hurdle of any adverse precedent, as the constitutional claims promulgated by the plaintiffs in the just-dismissed case were not at issue.