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Tuesday, October 18, 2016
How a non-infield fly shows the need for the Infield Fly Rule

During Sunday night's Cubs loss (sigh!) to the Dodgers in Game 2 of the NLCS, the Cubs ended the top of the sixth with a double play. With first-and-second/one-out, the batter broke his bat and hit a soft looping line drive towards Cubs second baseman Javier Baez. Rather than charging to catch the ball on the fly, Baez took two steps backwards, allowing the ball to fall at his feet. He then threw to shortstop Addison Russell covering second to get a force-out on the runner on first, then, after some confusion and hesitation by Russell, he tagged the runner on second heading to third following a rundown. (the play went 4-6-5-6, if you're scoring at home). The video is in the above link.

The Infield Fly Rule was not invoked on the play, properly. The rule by its terms does not apply to line drives and umpires only will invoke it if the ball travels in a parabola with sufficient arc and height. This was a "humpback liner" (a cross between a pop-up and a line drive that stays low, then drops straight down); it can sometimes can be tough to judge, although this ball was obvious, given how low it was.* In fact, the ball was hit so low that Baez played it more like a groundball.
[*] I have been surprised by hearing several knowledgeable commentators complimenting the umpires for wise judgment in not calling infield fly on the line drive, ignoring that this is not a judgment call. The ball plainly was a line drive to which the Rule cannot apply.
The Cubs turned an odd double play on it, in part because other infielders seemed confused. Baez threw to Russell, who initially came across the bag and looked like he would throw to first. It is not clear why he did not follow through--whether the batter was too far up the line (unlikely, given how low the ball was, but it is impossible to tell from any video I have seen) or whether the runner on first was standing in the basepath, blocking the throw (and calling to mind a historic World Series controversy). Alternatively, Russell should not have caught the ball on the base, but instead might have tagged the runner on second before stepping on the base to force the runner on first. And a third alternative would have been for Baez to throw to third base to get the lead runner, then the third baseman to throw to second to complete the double play.

A couple thoughts.

First, line drives are excluded because most are hit too hard and straight, so they will not fall as easily at an infielder's feet. But this play shows that by excluding line drives from the Infield Fly Rule and allowing this type of double play, some unexpected and unfair double plays may arise on just these soft liners. The question is where to strike the balance, based on whether there are more hard liners that travel through the infield if not caught compared with balls like this.

Second, although infield fly was properly not invoked, the play shows why we need that Rule. This double play would be both easier and more common if an infielder could do the same thing on a soft pop-up that would fall at his feet, leaving the baserunners similarly hung up. We see how gently the ball falls to the ground and how easily and slickly a good infielder can scoop the ball off the ground and make the necessary short throw. Without the Infield Fly Rule, we would see infielders making this move on most (if not all) soft, high pop-ups.

Tuesday, October 11, 2016
Greenberg and Koufax Sit on Yom Kippur

I have an essay today in Tablet Magazine, When They Were Kings: Greenberg and Koufax Sit on Yom Kippur. The piece compares Sandy Koufax and Hank Greenberg in their respective decisions not to play on Yom Kippur 31 years apart. I argue that Greenberg's decision was especially significant given the different, and more precarious, position of Jews in America and the world in 1934 compared with 1965. The essay elaborates on what I wrote here last Yom Kippur, on the fiftieth anniversary of Koufax sitting out.

Thursday, October 06, 2016
NJ Horsemen Question "Legality" of DFS Laws in SCOTUS Filing in NJ Sports Betting Case

New Jersey's quest to legalize sports betting has officially landed at the United States Supreme Court--for a second time. In an under-the-radar legal filing on Friday (which I exclusively reported on Twitter), the New Jersey Thoroughbred Horsemen's Association ("NJTHA"), which represents the interests of Monmouth Park Racetrack, filed a formal petition with the Supreme Court asking the high court to review the Third Circuit's recent en banc decision in the "Christie II" case. That decision--entered on August 9th--upheld a lower court's ruling preventing New Jersey from partially repealing its state-law ban on sports gambling which had sought to decriminalize sports betting (and remove any and all state law restrictions, including any applicable regulations) at the state's casinos and racetracks.

The NJTHA petition focuses on two central issues: (1) whether PASPA violates the Tenth Amendment anti-commandeering principle by requiring states to maintain unwanted state-law prohibitions on sports betting; and (2) whether state laws legalizing daily fantasy sports also violate PASPA. As to the first issue, the NJTHA identifies the following "Question Presented" as meriting review by the Supreme Court: "Does a federal statute that prohibits adjustment or repeal of state-law prohibitions on private conduct impermissibly commandeer the regulatory power of States in contravention on New York v. United States, 505 U.S. 144 (1992), and Printz v. United States, 521 U.S. 898 (1997)?" Answering that question in the affirmative, the NJTHA argues that the Third Circuit's decision "flouts" the Supreme Court's anti-commandeering jurisprudence by "requiring the State of New Jersey to keep in place criminal prohibitions that the State has chosen to lift." The NJTHA asserts that principles of "federalism"--which are designed to protect both the States and the People--"have been nullified" by the Third Circuit's decision which results in "the content of New Jersey law [being] dictated by the national government, in derogation of the will of the people of New Jersey and their elected representatives." 

Conflict with Commandeering Decisions on Marijuana Decriminalization Laws

Although no "circuit split" has yet arisen on the issue of PASPA's constitutionality, the NJTHA seeks to elicit Supreme Court review based on a conflict between the Third Circuit's decision and the decisional law of three state supreme courts and one other federal court of appeals on the broader issue of whether a state is free to repeal its own state-law prohibitions without interference from the federal government. On this critical constitutional issue, the NJTHA petition points to case-law from four other jurisdictions (besides New Jersey) upholding state marijuana decriminalization laws:
In conflict with the Third Circuit's decision, the highest courts of several States have recognized that the national government lacks the constitutional authority to require States to freeze in place State law prohibitions. See Reed-Kaliher v. Hogatt, 347 P.2d 136, 141 (Ariz. 2015); Ter Beek v. City of Wyoming, 846 N.W.2d 531, 538 (Mich. 2014); State v. Nelson, 195 P.3d 826, 834 (Mont. 2008). In these decisions, the Supreme Court of Arizona, the Supreme Court of Michigan, and the Supreme Court of Montana each relied on anticommandeering principles to uphold the validity of State laws removing, for qualified patents, prior State law prohibitions of marijuana. See also Conant v. Walters, 309 F.3d 639, 645-46 (9th Cir. 2002) (Kozinski, J., concurring) ("much as the federal government may prefer that California keep medical marijuana illegal, it cannot force the state to do so. . . . If the federal government could make it illegal under federal law to remove a state-law penalty, it could then accomplish what the commandeering doctrine prohibits: The federal government could force the state to criminalize behavior it has chosen to make legal.")
"Under the Third Circuit's interpretation of the United States Constitution," the NJTHA petition declares, "all of these State Court decisions are wrong. Under the Third Circuit's reasoning, Congress has the constitutional power to prohibit States from selectively removing State law prohibitions on private conduct." The NJTHA insists that the Third Circuit, unlike the aforementioned state court decisions, "failed to recognize that while State law cannot create a defense to federal prosecution, a State remains free to prohibit as little private conduct as it chooses under its own law." Continuing on this theme, the NJTHA petition adds that the Third Circuit "failed to see that the Constitution, properly interpreted, leaves the people of New Jersey as free to exercise their liberties and partially remove New Jersey's prior state law prohibiting sports gambling as it leaves the people of Arizona, Michigan, and Montana free to partially remove their prior State law prohibitions on marijuana."

The NJTHA warns of the "truly deplorable" results and "public mischiefs" that would ensue from such a lack of uniformity in the federal constitutional case-law. In urging the Supreme Court to review the Third Circuit's anomalous result, the NJTHA petition stresses that "[o]nly the Court alone can make the Constitution uniform across the nation." Thus, the petition concludes this argument section by urging the Supreme Court to "grant certiorari and make this promise of liberty-enhancing federalism uniform throughout the country."

New Jersey's commandeering argument in this latest round of litigation is arguably more compelling than its prior iteration advanced in the Christie I case. In its previous Supreme Court petition, New Jersey's commandeering argument was directed to PASPA's "negative command" forbidding states from licensing or authorizing sports wagering. That argument was always an uphill battle given the Supreme Court precedent limiting the anti-commandeering doctrine to cases where the federal government requires states to engage in some type of "affirmative activity," such as taking title to radioactive waste (as in the New York case) or performing background checks on prospective handgun purchasers (as in the Printz case). But this time around, New Jersey's commandeering argument addresses the flip-side of PASPA: its "affirmative requirement" compelling states to prohibit sports wagering. This view of PASPA fits more nearly into the Supreme Court's anti-commandeering jurisprudence, and, as such, greatly enhances New Jersey's prospects for Supreme Court review. Nonetheless, this is still a long-shot proposition at best since the Supreme Court typically grants less than two percent of all petitions seeking certiorari review. Still, this one has a better shot than most.

Selective Enforcement of Daily Fantasy Sports Laws

Turning next to the hot-button issue of daily fantasy sports, the NJTHA's petition highlights the fact that the professional sports leagues (the plaintiffs and appellees in the Christie II case) "continue to reap enormous profits on daily fantasy sports--wagering based on the performances of players in the Leagues' sports contests--where the Leagues are actively promoting such betting and/or owning daily fantasy betting platforms that are now authorized by law in numerous states despite the fact that PASPA may prohibit daily fantasy wagering." (The italics are mine to note that the NJTHA would obviously prefer not to jeopardize a prospective future DFS law in New Jersey).

In this scintillating final section of the petition (covering three pages), the NJTHA also urges Supreme Court review based on the "selective enforcement" of PASPA by the professional sports leagues due to their failure to challenge the recent spate of state laws authorizing daily fantasy sports, which the NJTHA suggests are also encompassed by PASPA (as I have long maintained; see here and here). The NJTHA petition asserts that the Third Circuit's decision has "nationwide significance" because "it casts a long shadow over numerous state laws and regulations authorizing daily 'fantasy' sports wagering" (royalty owed here to Joe Asher, the CEO of William Hill US, for originally coining the phrase "daily fantasy sports 'betting'").

Noting that there are currently nine states that have laws authorizing daily fantasy sports "wagering" on athletic performances, the NJTHA petition cautions that the Third Circuit's decision "calls into question the laws and regulations of numerous States that have enacted regimes regulating daily fantasy sports betting." Correctly observing that the provisions of PASPA "apply both to wagering on the outcome of sports games as well as wagering on the performances of the athletes in such games," the NJTHA contends that "all States that are currently licensing or authorizing 'by law' daily fantasy sports (as well as DFS operators in those States) are, under the Third Circuit's decision, at some risk under PASPA." Here, the NJTHA petition stresses that Supreme Court review is necessary to resolve the "uncertainty" as to whether the state laws authorizing daily fantasy sports may also violate PASPA:
The Third Circuit's decision creates uncertainty as to whether the efforts of the numerous States that have licensed or authorized DFS by law may violate PASPA. A determination by this Court as to whether PASPA is constitutional or not eliminates that uncertainty across the nation.
The NJTHA petition also highlights the sports' leagues' economic self-interest in refusing to invoke PASPA to block state DFS laws, while selectively wielding it as billy-club against states like New Jersey that dare attempt to legalize a different form of sports gambling over the leagues' objections. The petition questions the wisdom of allowing the sports leagues (the de facto "gatekeepers" of PASPA) to determine the question of the enforceability and constitutionality of PASPA, instead urging the Supreme Court (and the Supreme Court alone) to resolve that crucial question:
Whether PASPA is a constitutional statute should not be left in the hands of the Leagues. They have already shown that they seek to enforce PASPA only when it suits their economic interests. It is emphatically the province of this Court, not the Leagues, to decide whether PASPA is constitutional or not. . . . Under PASPA, the only entities hat have the authority to commence suit enjoin a violation of PASPA are the United States and the "sports organization whose competitive game is alleged to be the basis of such violation." . . . As evidenced by this action, the United States is not independently seeking to enforce PASPA. And the Leagues have no interest in seeking to enforce PASPA with respect to DFS because the Leagues are significantly involved in DFS--indeed, the Leagues have equity stakes in DFS operators such as FanDuel and DraftKings.
Finally, in an interesting footnote sure to spark some debate among DFS aficionados, the NJTHA petition contends that paid DFS contests are not immune from the same "integrity" concerns that have caused the leagues to historically oppose traditional single-game sports betting. On this score, the NJTHA posits that "if sports betting on the Leagues' games somehow causes irreparable injury to the integrity or the appearance of the integrity of such games[,] then a fortiori[,] daily fantasy games where each individual performance is at issue would [likewise] cause irreparable injury."

The NJTHA petition is the first of three certiorari petitions that are expected by the appellees in the Christie II case. The other petitions--one from New Jersey Governor Chris Christie and the other from the President of the New Jersey Senate and Speaker of the New Jersey Assembly--are expected to be filed later this week.

Wednesday, October 05, 2016
O’Bannon Case Reaches End of Road

The Supreme Court recently refused to hear Ed O’Bannon’s case challenging NCAA limits on payment from the use of players’ names, images, and likenesses (NILs) in videogames and game footage. This non-decision offers something for both sides, but raises questions for antitrust fans. 

First, it offers a win for the NCAA, which gets to keep its Ninth Circuit ruling that rejected a deferred NIL payment of up to $5,000. That court concluded that the district court had erred in upholding such a payment since “paying students cash compensation” would not “promote amateurism as effectively as not paying them.” The Court’s refusal to hear the case means that (at least in the 9 states and 2 Pacific Island jurisdictions that make up the Ninth Circuit), Division I men’s basketball and football players will not be paid for the use of their names, images, and likenesses.

Second, it offers a win for the players in the undermining of the NCAA’s prized amateurism defense. For decades, the NCAA has claimed that all sorts of anticompetitive restrictions are justified because of amateurism. Now it will not be so easy. 

In a full trial consisting of 24 witnesses, 15 days, and thousands of pages of testimony, the district court considered the amateurism defense more thoroughly than any previous court. And the more it looked under the hood, the worse amateurism appeared: football players “accept[ing] Pell grants in excess of their cost of attendance”; tennis recruits earning “$10,000 per year in prize money”; and shifting definitions of the term, with “significant and contradictory” revisions of “malleable” compensation rules. 

In addition to amateurism skepticism, the plaintiffs won because they get to keep “cost of attendance” awards, which are higher than “grant in aid” stipends since they include nonrequired books and supplies, transportation, and other expenses. Almost certainly because of the case, schools including the Power 5 conferences have adopted a similar rule. 

Third, though perhaps less exciting, it offers a loss for antitrust fans. For most business arrangements, courts apply a test known as the “Rule of Reason.” Under this analysis, courts consider the pros and cons (in antitrust parlance, the procompetitive and anticompetitive effects) of the conduct. 

Unfortunately, the Ninth Circuit forgot this, punishing O’Bannon for not offering a “less restrictive alternative” to the $5,000 NIL payment. As I have explained elsewhere, if the court insisted on rejecting this alternative, it should have proceeded to balancing, on which O’Bannon was likely to emerge victorious given the strong anticompetitive effects of a “price-fixing agreement” that “value[d] the athletes’ NILs at zero” and weakened amateurism justifications. Adding insult to injury, the Ninth Circuit substituted its version of amateurism (one in which student-athletes could not be paid any cash at all) for the one adopted by the district court (in which NIL payments were acceptable since they did not affect demand for college sports). 

My antitrust disappointment aside, on balance the plaintiffs came out ahead in the O’Bannon case. While the NIL payment was struck down, the skeptical treatment of amateurism will have effects for years to come. For example, the ongoing Jenkins case, which takes even more direct aim at the college model by striking down all limits on payment, can now point to the bloodied amateurism defense not as an automatic savior but rather as a hobbled justification. If Jenkins or another case topples the NCAA’s system, the O’Bannon case will have played a crucial role.


The future of daily fantasy sports in New York may soon be in a state of flux, if not outright jeopardy. In a stunning, but not altogether surprising development (since I’ve highlighted this issue previously), a quartet of New York residents has filed a lawsuit in Albany County Supreme Court to block the implementation of the recently-enacted New York fantasy sports law. (A copy of the complaint can be found here). Specifically, the lawsuit—coordinated by the anti-gambling group Stop Predatory Gambling—seeks a declaratory judgment declaring that New York’s “Interactive Fantasy Sports” Law (Chapter 237 of the Laws of the State of New York) is “unconstitutional” because it impermissibly expands commercial gambling in New York in contravention of Article I, Section 9 of the New York State Constitution. On this point, the lawsuit contends that the New York Legislature was without authority to legalize DFS in New York absent a constitutional amendment, a time-consuming process which requires two successive sessions of legislative approval, separated by a general election, and then followed by a statewide voter referendum. At minimum, this process can take two years or more.

The complaint accuses the state legislature of circumventing this mandatory process. As the lawsuit explains, “the Legislature may not amend the Constitution under the guise of legislating. It cannot unilaterally define ‘gambling’ to deviate from its ordinary and well-understood meaning as used in the Constitution by excluding therefrom interactive fantasy sports contests, and, in particular, DFS. It cannot usurp the right of the people as any such redefinition is the exclusive prerogative of the People via a Constitutional amendment approved in a statewide referendum. See New York Constitution, Article XIX. That process was not followed here. Chapter 237 should therefore be declared unconstitutional and the Defendant State officials and agencies should be permanently enjoined from implementing it.”

Predictably, the lawsuit highlights the fact that New York’s chief law enforcement officer, Attorney General Eric Schneiderman, “has already declared in court filings that DFS violates Article I, § 9 of the [New York] Constitution and successfully obtained an injunction to prevent such activity prior to the adoption of Chapter 237.” Calling DFS “a new business model for online gambling,” the 44-page complaint also attacks the well-worn argument of industry supporters that the predominantly “skill-based” nature of DFS precludes it from being characterized as “gambling.” Referring to this premise as both a “non-sequitur” and “fallacy,” the plaintiffs characterize the “skill vs. chance” distinction as “a false dichotomy conjured up in an obvious effort both to circumvent a clear and unequivocal constitutional prohibition and to prevent the people from exercising their exclusive right to decide whether the Constitution should be amended to exclude DFS from the constitutional ban on gambling.” As the lawsuit explains in greater detail, “[s]kill and chance are not mutually exclusive, and just as betting on a horse can involve skill, the outcome remains uncertain and a bet that one horse will win is still a gamble. Guessing on how an athlete will actually perform in a subsequent real life game always involves chance.” That includes an ‘educated’ guess.”

Interestingly, the lawsuit also alleges that the New York DFS law violates the Professional and Amateur Sports Protection Act (“PASPA”), a 1992 federal law which prohibits states from “authorizing” or “licensing’ sports betting.

More troublingly (for industry operators and players alike), the 44-page lawsuit  seeks to shut down daily fantasy sports in New York. The one-count complaint, which names New York Governor Andrew Cuomo and the New York State Gaming Commission as the sole defendants, seeks a permanent injunction preventing New York State officials from “implementing” Chapter 237 or “expending taxpayer dollars” to implement any of its provisions. While the new law has already been “implemented” so to speak—as a number of companies (including FanDuel and DraftKings, among others) have obtained temporary permits and have been operating in New York since August—this lawsuit has the potential to unwind all of these efforts. No word yet on whether the plaintiffs are seeking a more immediate preliminary injunction—which could jeopardize fantasy sports in New York during the current NFL season (depending on how quickly such a motion could be heard)—or will be pursuing only a permanent injunction following a trial (or as part of a summary judgment motion). While this lawsuit has not yet been served, I would expect it to heat up pretty quickly, with both FanDuel and DraftKings likely “intervening” in the case to protect their interests, and motions for a preliminary injunction and/or summary judgment being filed before the end of the year.

So who are these plaintiffs? According to the complaint, the plaintiffs (Jennifer White, Katherine West, Charlotte Wellins, and Anne Remington) “are citizens who are residents and taxpayers of New York who either have gambling disorders or are relatives and family members of such persons.” The complaint explains that “[t]heir heartbreaking stories include a litany of suffering marked by child neglect, bankruptcy, divorce, loss of homes, and the agony of rehabilitation and relapse, all directly caused and threatened to continue to be caused by DFS gambling.” The complaint describes the various ways that each plaintiff has personally been harmed by gambling, an important point for purposes of establishing “standing” to sue. However, New York law recognizes liberalized taxpayer standing to challenge legislative enactments as contrary to the state constitution. Thus, these four plaintiffs should be able to withstand any legal challenges to their standing and legal capacity to bring this lawsuit, although that will not stop the State, (and eventually DraftKings and FanDuel) from trying to dismiss the lawsuit on that basis.

The lawsuit was filed by O’Connell and Aronowitz, the Albany-based law firm known for having previously challenged the New York Legislature’s approval of video lottery terminals more than a decade ago. So this type of lawsuit is definitely in their wheelhouse. And the complaint is painstakingly detailed and compelling. I’ve always believed that with the right plaintiffs and the right law firm—and both categories appear to be satisfied in spades here—a lawsuit challenging the New York DFS law on constitutional grounds always stood an excellent chance of success. This one definitely has a chance, and, as such, the future of DFS in New York may be in serious jeopardy.

Tuesday, October 04, 2016
New Jersey Sports Betting, The Supreme Court, and a Nuclear Option (with a Twist)

For those of you who have been closely following New Jersey’s five-year quest to legalize sports gambling, it should come as no surprise that the Garden State is not quite ready to throw in the towel following its latest federal court setback. Earlier today, New Jersey State Senator Ray Lesniak told ESPN’s David Purdum that New Jersey would be filing a petition with the United States Supreme Court by the end of this week. While the news is not surprising—after all, New Jersey appealed its Third Circuit loss in 2013 to the Supreme Court, so why wouldn’t it do so again, following another divided Third Circuit opinion (with two dissenting opinions and an en banc rehearing). But the deadline for filing a petition for writ of certiorari is November 7th, which is more than one month away. Why the rush, especially with only eight justices? Wouldn’t it make more sense to file in November with the potential recess appointment of Justice Merrick Garland looming (if Hillary Clinton becomes the President-Elect), thereby enhancing the possibility of certiorari being granted with one more judge being able to vote. In all likelihood, Senator Lesniak was referring to his own chamber’s petition—the anticipated Supreme Court filing by the New Jersey State Senate and New Jersey State Assembly, who are represented in this case by Stephen Sweeney (the Senate President) and Vincent Prieto (the Assembly Speaker). There are, however, two other “New Jersey” parties: the New Jersey Thoroughbred Racing Association and New Jersey Governor Chris Christie. They are the principal New Jersey parties in this case, and their expected petitions will likely be filed much closer to the November 7th deadline.

Whenever these petitions are actually filed, we can expect the key arguments to again focus on the anti-commandeering doctrine, a principle of constitutional law that prevents the federal government from dictating how a state regulates its own citizens. New Jersey would presumably highlight the dissenting opinions in Christie II, particularly Judge Thomas Vanaskie’s criticism of the “shifting line approach” employed by the majority, which had opened the door to the possibility of a partial repeal in Christie I before essentially sealing it shut in Christie II. Judge Vanaskie observed that after Christie I, a state like New Jersey “at least [had] the choice of either: (1) repealing, in whole or in part, existing bans on gambling on sporting events,” or (2) “keep[ing] a complete ban on sports gambling.” Such a choice, he explained, was essential to upholding PASPA’s constitutionality in Christie I. By contrast, he wrote, the majority’s decision in Christie II “does not leave a state ‘much room’ at all. Following Christie II, states “must maintain an anti-sports wagering scheme” by “leav[ing] sports gambling prohibitions on the books to regulate their citizens.” Judge Vanaskie opined that this really “leaves the States with no choice,” adding that “[t]he anti-commandeering doctrine, essential to protect State sovereignty, prohibits Congress from compelling States to prohibit such private activity.” Judge Vanaskie was unpersuaded by the majority’s assertion that some partial repeal options “may pass muster” (such as the example involving small wagers between friends and family), noting that the majority “does not explain why all partial repeals are not created equal or explain what distinguishes the 2014 Law from those partial repeals that pass muster.” As Judge Vanaskie explained, “[t]he bedrock principle of federalism that Congress may not compel the States to require or prohibit certain activities cannot be evaded by the false assertion that PASPA affords the States some undefined options when it comes to sports wagering.” Contending that the majority opinion “excised” the distinction between a “repeal” and an “authorization,” Judge Vanaskie declared that it is “clear” that no repeal of any kind will evade PASPA’s command that no State “shall . . . authorize by law sports gambling.” Such commands, Judge Vanaskie concluded, “are fundamentally incompatible with our constitutional system of dual sovereignty.”

Judge Vanaskie’s commandeering analysis—and his thesis that PASPA requires states to maintain and enforce existing state-law gambling prohibitions—will likely be the centerpiece of New Jersey’s petition to the Supreme Court. In his Christie II dissent, Judge Vanaskie described PASPA as “seek[ing] to control and influence the manner in which States regulate private parties” by effectively commanding the states to maintain and enforce existing gambling prohibitions. By issuing this directive, Judge Vanaskie wrote, “Congress has set an impermissible ‘mandatory agenda to be considered in all events by state legislative or administrative decisionmakers.’” “The logical extension of the majority,” he continued, “is that PASPA prevents States from passing any laws to repeal existing gambling laws.” (italics in original). By “effectively command[ing] the States to maintain and enforce existing gambling prohibitions,” Vanaskie concluded, “PASPA . . . dictat[es] the manner in which States must enforce a federal law,” adding that the Supreme Court “has never considered Congress’ legislative power to be so expansive.”

Although New Jersey unsuccessfully sought certiorari review following the Christie I decision, its commandeering argument this time around is arguably more compelling. In its previous Supreme Court petition, New Jersey’s commandeering argument in Christie I was directed to PASPA’s “negative command” forbidding states from licensing or authorizing sports wagering. That was always an uphill battle given the Supreme Court precedent limiting the anti-commandeering doctrine to cases where the federal government requires states to engage in some type of “affirmative activity,” such as taking title to radioactive waste (as in the New York case) or performing background checks on prospective handgun purchasers (as in the Printz case). But this time around, New Jersey’s commandeering argument will address the flip-side of PASPA: its “affirmative requirement” compelling states to prohibit sports wagering. This view of PASPA fits more neatly into the Supreme Court’s commandeering jurisprudence, and, as such, New Jersey’s prospects for Supreme Court review are arguably enhanced. Nonetheless, this is still a long-shot proposition at best since the Supreme Court typically grants less than one percent of all petitions seeking certiorari review. New Jersey’s chances for Supreme Court review are also hampered by the absence of any “circuit split” on the issue of PASPA’s constitutionality. Most cases accepted for review by the Supreme Court involve conflicting decisions among the lower federal courts on a particular legal issue. Since the Christie line of cases are only the federal court decisions addressing the constitutionality of PASPA, the all-important “circuit split” is lacking here. (Note: New Jersey could potentially focus the “circuit split’ on the broader commandeering issue by pointing to the Ninth Circuit’s decision in Conant v. Walters, 309 F.3d 629 (9th Cir. 2002), where Judge Kozinski reasoned in a concurring opinion that “preventing [a] state from repealing an existing law is no different from forcing it to pass a new one,” and, therefore, “runs afoul of the commandeering doctrine.” That language is arguably at odds with Christie II).

Even if New Jersey’s pitch to the Supreme Court fails (and we will likely not know until the Spring of 2017), it still possesses other options—legislatively—to legalize sports betting. One option would be to enact another partial repeal law, though perhaps one not nearly as targeted or selective as the 2014 Law (which decriminalized sports gambling only for casinos, racetracks and former racetrack sites). While the Christie II decision did not provide specific examples of a partial repeal law that would “pass muster”—other than the commercially meaningless “friends and family” exception—it did allow that states had “sufficient room” under PASPA to “craft their own policies.” The precise contours of this policy-making room for state lawmakers were not spelled out in Christie II, but, clearly, New Jersey would be permitted to partially repeal its state-law prohibitions on sports gambling so long as it did not cross the line into an “authorization” of that activity (which would be prohibited by PASPA). So, what kind of partial repeal would “pass muster” with the Third Circuit? Perhaps a partial repeal based on geographic boundaries, such as a law repealing sports gambling prohibitions at any commercial establishment within Atlantic County (where all of New Jersey’s casinos are located) and Monmouth County (the home to Monmouth Park Racetrack). While such a law could likewise be viewed as benefitting casinos and racetracks, it would not be nearly as selective or targeted as the 2014 Law: it would decriminalize sports betting within the entirety of both counties (and not just at state-licensed casinos and racetracks). A repealer like this would stand a far better chance of passing legal muster, though it would likely lead to more litigation with the sports leagues, which would invariably point to language in the Christie II opinion stating that a state law which “channels wagering activity to particular locations . . . is in essence, an ‘authorization’ under PASPA.” Ironically, this could the tee up the next round of litigation—anyone ready for a “Christie III”?—over the meaning, breadth and scope of the word “locations,” such as whether it refers only to specific venues or encompasses any “geographic-based” repealer (such as a law decriminalizing the activity throughout an entire county or municipality).

A second option—and one completely within New Jersey’s control to pull off—is the so-called “nuclear option,” e.g., a complete decriminalization of sports betting statewide. Under a complete repeal, any and all state-law prohibitions against sports betting would be removed so that anybody (literally anybody) could offer, accept, or place sports wagers without criminal or civil repercussions (or any form of regulation). This “Wild West” scenario would decriminalize sports betting not only for casinos and racetracks, but also for the corner bookie, retail stores, and, most stunningly, for organized criminal enterprises. One New Jersey State Senator—Ray Lesniak (who has long championed sports betting in New Jersey)—announced that he intends to introduce such legislation in the near future. While such a measure would face long odds in the New Jersey Senate and New Jersey Assembly due to its controversial premise (e.g., having no laws on the books prohibiting sports betting), its true goal is more forward-thinking: to force the major sports leagues and Congress to address the issue of expanded legal sports betting sooner rather than later. The leagues’ worst fears—widespread unregulated and unmonitored sports gambling (with no oversight)—would be realized if New Jersey were to enact such a law. Thus, the thinking here is that a complete repeal, if enacted, would dramatically shorten the timeline for expanded legal sports betting by forcing the sports leagues and Congress to act more expeditiously in legalizing sports betting nationally. While this “nuclear” option may not be taken seriously by some observers—who see it as nothing more than a “bluff” or a publicity stunt—it is the only one of the three remaining options that would guarantee sports betting in New Jersey on day one.

Finally, New Jersey may wish to consider what I call the “nuclear option with a twist”: completely repealing its state-law prohibitions on sports betting and then, over time, adding restrictions to arrive at essentially the same place as the 2014 Law: legal sports betting at casinos and racetracks. Judge Fuentes alluded to this very possibility in his Christie II dissent when he reasoned that “no conceivable reading of PASPA” would preclude a state from “repeal[ing] completely its sports betting prohibitions” and then adding “later enacted limiting restrictions regarding age requirements and places where wagering could occur.” Such a multi-stage legislative approach—which could be spread out over a period of several years—could allow New Jersey to accomplish over time what it could not achieve in a single legislative act—legal sports betting confined to specific locations of the State’s choosing. Of course, such a maneuver would surely be challenged by the sports leagues, which would argue that New Jersey was trying to accomplish indirectly what it was prohibited by Christie II from doing directly. But this option offers certain advantages: at the outset, it would guarantee legal sports betting in New Jersey, while potentially providing the State with an opportunity to make appropriate down-the-road adjustments to the law free from the clutches of PASPA. This could be the pragmatic solution for those lawmakers hesitant to completely decriminalize sports gambling.