Sports Law Blog
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Monday, November 28, 2016
Sizing Up Mississippi as the Next Likely PASPA Challenger

Recent speculation has started to center on Mississippi being the next state that will step up to the plate to challenge the federal ban on state-sponsored sports betting. Over the weekend, the Mississippi Sun Herald published an editorial titled "States should control sports betting," which supported Mississippi Attorney General Jim Hood's decision to sign on to an amicus brief filed by five states (West Virginia, Wisconsin, Louisiana, Arizona, and Mississippi) backing New Jersey's efforts to challenge the constitutionality of the Professional and Amateur Sports Protection Act ("PASPA"). New Jersey is asking the U.S. Supreme Court to review a recent federal appeals court decision blocking New Jersey from implementing a state law that would have permitted sports betting to take place at the State's casinos and racetracks. New Jersey, backed by the amici states and several other groups (including the American Gaming Association), argues that PASPA violates the Tenth Amendment's anti-commandeering principle by requiring states to maintain unwanted state-law  prohibitions against sports betting and by preventing states from repealing their own laws on sports betting (even in part). Mississippi's backing of New Jersey's efforts came several seeks after Mississippi's newly-appointed Commissioner of Revenue, Herb Frierson, introduced a list of tax reform suggestions that were highlighted by his statement that legalized sports betting could bring an additional $100 million into the state's coffers annually. These recent events have served to heighten speculation that Mississippi will be the next state to challenge PASPA in court.

Such speculation is well-founded. But it is far from a recent development. Over the past year, I have frequently touted Mississippi as the state most likely to take the baton from New Jersey. In a recent Deadspin piece titled "How To Legalize Sports Betting," I identified Mississippi as the "state to watch" on the PASPA front. I wrote that a number of states loomed as potential PASPA challengers, but that "Mississippi, in particular, is worth watching. With 28 commercial casinos, but declining gaming revenues, the Magnolia State may represent the perfect storm for a successful PASPA challenge." I highlighted the fact that the Fifth Circuit (which covers Mississippi) is among the most conservative federal appeals courts in the country, and, as such, might be more receptive to a states' rights argument for overturning PASPA. And during my appearances at gaming conferences (including the Southern Gaming Summit in Biloxi, Mississippi), and, of course, on Twitter (see here and here), I have pointed to Mississippi as the state most likely to challenge PASPA next. There are many reasons for my belief. Suffice it to say that Mississippi's path to sports betting legalization has been at least several years in the making. As far back as March 2014, the Mississippi State Legislature commissioned a task force to study the possibility of legalizing online gaming and sports betting. The state task force produced a report in December 2014 which summarized the New Jersey sports betting litigation and posited that if New Jersey were to succeed in court, "Mississippi (and other states) may be able to fall in line and take similar action." However, the task report cautioned that it "would seem prudent to take a wait and see approach at this point." Shortly thereafter, a Mississippi lawmaker, Chuck Espy (a former Democratic member of the state House of Representatives), introduced a bill (HB 806) that would have permitted the state's casinos to offer sports betting as soon as the Mississippi Gaming Commission determined that it became "permissible under federal law." Unfortunately, HB 806 never got out of committee, and has not been re-introduced.

But, perhaps, most importantly, Mississippi's longstanding interest in legalized sports betting is based on urgent financial considerations. In that regard, it shares many characteristics with New Jersey. Like New Jersey, Mississippi's once-thriving gaming industry has suffered a steep and steady decline in gross revenues over the past decade, and, much like New Jersey, it has experienced its share of casino closures too (e.g., Harrah's Tunica Casino). To put it in perspective, in 2008, Mississippi's casino industry generated approximately $2.7 billion in gross gaming revenues. Since 2008, however, Mississippi's casino gross gaming revenues have steadily declined each year, reaching a nadir of approximately $2.068 billion in gross revenues in 2014, a drop-off of more than twenty percent (20%) from just six years earlier (although it should be noted that gaming revenues have inched up slightly over the last two years, but still far off of the 2008-09 levels). The effects of such a decline are far-reaching: the state collects less tax revenues ($250 million in 2015, as contrasted with nearly $312 million in 2009), and Mississippi's tourism industry, which is so heavily dependent on its casino industry, suffers as well. If sports betting were to become legal in Mississippi, this downward trend would obviously be reversed. This more than anything else explains the state's renewed interest in sports betting.

But even going beyond financial reasons and the potential forum advantages of the Fifth Circuit, Mississippi may possess an important strategic advantage in any prospective PASPA lawsuit: it is one of only a handful of states to have legalized fantasy sports. The recent state measures to legalize fantasy sports may provide state challengers with a creative new argument for toppling PASPA. While PASPA is commonly understood to prohibit “state-authorized” betting or wagering schemes on the outcomes of professional and amateur sporting events, it also prohibits state-authorized betting or wagering schemes that are based “on one or more performances of athletes in such games.” This language arguably encompasses state legislation authorizing daily fantasy sports contests, which are tied to the “performances” of athletes. A plausible argument can be made that the sports leagues are “selectively enforcing” PASPA by opposing state efforts to legalize traditional sports betting, as in the case of New Jersey, but taking no action against those states which have authorized fantasy sports contests (which presumably also violates PASPA). Such an argument could serve to undermine the leagues’ assertion in future cases that they would be “irreparably harmed” by expanded legal sports betting when they have neither suffered nor asserted any such harm from other supposed violations of PASPA. Since the leagues would need to demonstrate irreparable harm in order to obtain a preliminary injunction (as that is one of the essential elements that must be proven), the ability of future state challengers to rebut that element through evidence of the leagues’ selective enforcement of PASPA could be the key to avoiding a preliminary injunction in the early stages of a case. This would be a significant development, as it could enable a state challenger to offer sports betting throughout the pendency of a case, including any and all appeals, without having to wait for the final resolution of the lawsuit on the merits. While such an argument is not guaranteed to succeed, it provides another possible tool in a state’s legal arsenal to topple PAPSA.

Each of these factors points to Mississippi being the next state most likely to challenge PASPA in court. In my view, it's a matter of when, not if. 

-- Daniel Wallach

Saturday, November 26, 2016
Nevada's eSports Betting Scheme Not a Gamble Under PASPA

The inevitable partnership between eSports and the U.S. casino industry cleared another major hurdle earlier this month when the Nevada Gaming Control Board—the state agency which oversees the regulation and licensing of Nevada’s gaming industry—approved William Hill's and the Downtown Grand Hotel & Casino's application for a license to accept wagers on eSports tournaments, starting with the League of Legends Tournament at IEM Oakland. This represents the first time that wagering on eSports has been legally offered in the United States, and, given the trajectory of eSports, it certainly won’t be the last (especially in Nevada, where sports betting is legal and unencumbered by the Professional and Amateur Sports Protection Act [“PASPA”], the federal law which prevents states from licensing or authorizing sports wagering schemes).

Nevada is uniquely positioned to become the eSports betting capital of the United States, largely due to PASPA. Although PASPA prohibits States from authorizing or licensing betting or wagering schemes based, directly or indirectly, on one or more “competitive games” in which “amateur or professional athletes” participate, it also contains several exemptions from its application, the most important of which are two “grandfathering” provisions (28 U.S.C. §§ 3704(a)(1)-(2)) which preserve preexisting sports wagering schemes in Nevada, Delaware, Oregon, Montana, and “possibly a few other states.” (Senate Report 102-248, 102nd Cong., 1st Sess. 4, reprinted in 1992 U.S.C.C.A.N. 3553). But of the four states presently known to qualify for either of the exemptions, only Nevada has the ability to expand its sports betting offerings without limitation by virtue of § 3704(a)(2), whereas Delaware, Oregon and Montana can only offer those sports betting schemes that were actually in effect between 1976 and 1990 by virtue of § 3704(a)(1). Thus, even if it is determined that a video gamer is an “amateur or professional athlete” for purposes of triggering PASPA’s application, Nevada would still be entitled to offer eSports wagering by virtue of its unlimited exemption under § 3704(a)(2).

There is considerable confusion about the parameters of PASPA’s grandfathering provisions. A review of the statutory language and legislative history should clear that up. Paragraph (1) of subsection 3704(a) expressly provides that PASPA does not apply to any lottery, sweepstakes, or other betting, gambling, or wagering scheme in operation in a State or other governmental entity “to the extent” that such scheme was actually conducted by that State or other governmental entity” between January 1, 1976 and August 31, 1990. (28 U.S.C. § 3704(a)(1)). This “grandfathering” clause was intended to permit states like Delaware, Oregon and Montana to continue the limited “sports lotteries” that they had previously conducted (National Collegiate Athletic Ass’n, Inc. v. Christie, 730 F.3d 208, 216 (3d Cir. 2013)). The § 3704(a)(1) exemption, however, is limited to those sports wagering schemes that were in existence between January 1, 1976 and August 31, 1990, but only “to the extent” that they were actually conducted during that timeframe. This is the principal reason why Delaware, Oregon and Montana—while recognized as being “grandfathered” under PASPA—are nonetheless prohibited from authorizing single-game sports betting. Delaware and Oregon operated only “sports lotteries” (involving multi-game parlay bets) prior to August 31, 1990, whereas Montana operated a sports betting pool (known as “Montana Sports Action”) where the winner was determined by the performance of individual football players in games or professional stock car drivers in races. The exemption under § 3704(a)(1) preserved these sports lotteries and sports pools, but did not allow for any expansion beyond that. (Senate Report, at 10 [“paragraph (1)[a] does not intend to allow for the expansion of sports lotteries into head-to-head betting.”]).

The State of Delaware tested the limits of this exemption in 2009 when it attempted to expand its sports lottery (which had been limited to multi-game parlay bets on NFL teams) to include point-spread bets and “over/under” bets on major professional and college sporting events. In Office of the Commissioner of Baseball v. Markell, 579 F.3d 293 (3d Cir. 2009), the United States Court of Appeals for the Third Circuit held that Delaware’s proposed lottery expansion violated PASPA, as the exemption provided under § 3704(a)(1) for preexisting sports wagering schemes only applied “to the extent” that such schemes were actually conducted between January 1, 1976 and August 31, 1990. (Id. at 304). The Third Circuit explained that, “whatever the breadth of the lottery authorized by Delaware state law in 1976, PASPA requires us to determine ‘the extent’– or degree – to which such lottery was conducted.” (Id. at 309) (italics in original). The Third Circuit found that the only form of legal sports wagering “conducted” by Delaware between 1976 and 1990 involved multi-game parlay bets on NFL teams. Accordingly, the Court held that Delaware was barred from offering single-game sports betting since it had not conducted such wagering during § 3704(a)(1)'s relevant statutory timeframe. As a result of the Markell decision, Delaware’s version of legal sports betting remains limited to multi-game parlays involving only NFL teams.

The second relevant “grandfathering” exemption—paragraph (2) of subsection 3704(a)—provides that the PASPA prohibition does not apply to a lottery, sweepstakes, or other betting, gambling, or wagering scheme in operation in a state or other governmental entity where both (A) such scheme was authorized by a statute in effect as of October 2, 1991, and (B) such scheme actually was conducted in that state or other governmental entity during the period beginning September 1, 1989 and ending August 31, 1990, pursuant to the law of that state or other governmental entity. This “grandfathering” provision was intended to release Nevada from PASPA’s clutches. (See Christie I, 730 F.3d at 216). Under subparagraph (2), single-game wagering on sporting events was permitted to continue in Nevada because it was actually conducted in Nevada between September 1, 1989 and August 31, 1990 pursuant to Nevada state law. (Senate Report, at 10). PASPA’s legislative history reveals that the reason for the unique treatment of Nevada was to protect Nevada’s economy, although political considerations were also a factor. (138 Cong. Rec. S7274 & 7278 (daily ed. June 2, 1992) (statement of Sen. Hatch) (Congress had “no choice” but to grandfather in the four states in order to “resolve the problems surrounding getting an important bill like this through. . . . Compromise is frequently necessary around here, of course, in order to enact legislation.”). The Senate Judiciary Committee explained that it had no “desire to threaten the economy of Nevada, which over many decades has come to depend on legalized private gambling, including sports gambling, as an essential industry, or to prohibit lawful sports gambling schemes in other States that were in operation when the legislation was introduced.” (Id. at 8).

A key distinction between the two “grandfathering” provisions is that § 3704(a)(2) does not “freeze in time” the sports betting schemes that qualify for that exemption. This is in marked contrast to the paragraph (1) exemption, which, by virtue of the “to the extent” limiting language, prevents qualifying states from expanding their sports betting offerings beyond those actually conducted between 1976 and 1990. This is underscored by the Senate Report’s express acknowledgement that Nevada will be able to expand its sports betting options under the paragraph (2) exemption. The Senate Report clarifies that “[p]aragraph (2) is not intended to prevent Nevada from expanding its sports betting schemes into other sports so long as it was authorized by state law prior to the enactment of [PASPA].” (Id.). It also makes clear that “sports gambling covered by paragraph (2) can be conducted in any part of the state in any facility in that state, whether such facility is currently in existence.” (Id.). This explains why Nevada has been able to more than double the number of licensed sports books in the state since the 1992 enactment of PASPA. More importantly, it also explains why Nevada can offer eSports wagering, whereas Delaware, Montana Oregon and other states may not (barring, of course, a successful argument that PASPA does not apply to eSports competitions). Because it is the only state that is presently known to qualify for the § 3704(a)(2) exemption, Nevada will likely be able to monopolize the growing eSports wagering market until such time as PASPA is amended or repealed.

-- Daniel Wallach

Sunday, November 20, 2016
Doctor Doctor: Mr. M.D.

Bioethics issues have played and will continue to play an increasing role in Sports Law. And they have become front and center with the case of Chris Bosh of the Miami Heat.

For the last two seasons, Bosh has missed considerable playing time as a result of his susceptibility to blood clots in his legs. In one instance, a clot traveled to his lungs causing a pulmonary embolism, a blockage in one of the lung’s arteries, a dangerous and sometimes fatal condition. Bosh ended up in the hospital for nine days, losing 30 pounds and missing the last 30 games of the 2014-15 season

Patients susceptible to blood clots are treated with blood thinning medications such as Xarelto, an anticoagulant. In fact, Bosh appeared in a commercial for the drug touting its ability to help his condition. In the ad, which opens with the ten-time all-star nailing a 3-pointer, Bosh says: “When I was sidelined with blood clots in my lungs, it was serious. Fortunately, my doctor had a game plan.” That doctor, of course, is not one employed by the Miami Heat, but his personal physician in whom he has placed his trust to not just keep him alive but to keep him on the court so he can earn the remaining $76,000,000 on his contract.

Drugs such as Xarelto don’t actually thin the blood. Instead, they slow the chemical process the body uses to clot the blood in the event of an injury like a cut or bruise. For that reason, the main risk of such products is excessive bleeding in the event of such an injury, particularly internal bleeding which can cause heart attacks and strokes. The package insert for Xarelto actually advises the user to “avoid activities that may increase your risk of bleeding or injury.” Obviously, professional basketball would be included in just such an activity.

Therein lies the rub for the Miami Heat who have advised Bosh that he has failed the team physical according to the team’s doctors. Bosh and his doctors claim he is fit to suit up. They say athletes in other sports have had similar clotting problems and have managed the condition, principally by flushing the system of anticoagulants before competing. Professional basketball, however, is sometimes a three game a week affair and anticoagulants are usually prescribed for daily use not an on-again-off-again routine.

What is the right course from a bioethics standpoint? Team doctors certainly have conflicting loyalties. Do they look out for the best interests of the team—which is petrified of any player dying on the court traumatizing the fans—or the interests of the player?

Let’s leave aside the team’s obligations under the Americans with Disabilities Act, which prohibits employment discrimination on the basis of a medical condition like Bosh’s.

The best approach, it seems to me, is to allow the player to make his own medical decisions along with his personal physicians. Teams have the right to consult with those physicians to ensure they are competent and justified in their opinions and treatment decisions, but they should defer to those whose only interest is in the player’s well-being.

Sunday, November 13, 2016
ULL suspends four players for caring about the election

I have written a few posts recently about the open questions surrounding the free-speech rights of college athletes. But these cases have generally arisen at private universities (Harvard soccer, Columbia wrestling) that may abide by First Amendment norms as a matter of courtesy, but not law. And those cases involved pretty disgusting instances of racist and misogynist speech that, one could argue  has no value or runs afoul of other considerations (such as Title IX). I disagree with that conclusion, but it at least confounds the analysis.

But the constitutional issue has been teed up directly by the decision of University of Louisiana-Lafayette to suspend four football players after they recorded themselves in the locker room singing and dancing to a song that says "Fuck Donald Trump." Football coach Mark Hudspeth and the university expressed disappointment in the players' "immature behaviors" and the use of lewd language towards one of the candidates. Hudspeth also pointed out that none of the players voted, which has nothing to do with anything. Interestingly, he initially offered a partial defense of his players against those who have "vilified a few 19-year-olds making some immature decisions, and then they were the same ones that voted for someone that has done much worse by grabbing a female in the private areas for the office of the [president of the] United States of America." He backed off that on Friday, saying he regretted offending Trump voters. The school has not identified the four players.

If we are looking for a situation in which punishment triggers a genuine First Amendment claim, this is it. ULL is a public school, so the First Amendment is in play. The players were engaged in core political speech and it is unquestionable that the use of the word fuck and associated gestures as part of a political message is also constitutionally protected. The attempt to frame this as a problem with profane lyrics and gestures, apart from the political message, is unavailing. According to this piece, Hudspeth has made rap music part of the team culture, celebrating a 2011 bowl victory with music blaring in the locker room and having music playing over speakers during practice. And that includes rap songs containing profanity.  So profane rap music is ok, as long as it does not offend a political candidate? It seems to me the First Amendment, if anything, demands precisely the opposite conclusion.

We now are left with the question of whether student-athletes are different than ordinary students because they play for, and represent, the school, making them more like employees. The university statement got at this in its statement when praising Hudspeth for "continu[ing] to educate the team on how their actions are a reflection of the name on the front of their jerseys." This is twisted in two respects. First, a university should be educating players less about the name on the front of their jerseys and more about their opportunities and obligations to be politically engaged citizens. You complain about young people and athletes not being engaged, they you punish them when they are. Second, even if student-athletes are analogous to employees, even public employees enjoy some protection when speaking as citizens on matters of public concern--this would seem to qualify.

This is moot, of course, since it is unlikely the players will challenge their suspensions. Which is too bad, because this looks like a situation in which the school has overstepped, both its role as an athletic institution and as an institution supposedly committed to educating the next generation of citizens.

Saturday, November 12, 2016
A post-election thought on athlete speech

This has been a significant year for athlete speech--Colin Kaepernick (joined by several other players) and national-anthem protests, the opening speech by four NBA stars (LeBron, Carmelo, Wade, and Chris Paul) at the ESPY Awards, protests against police violence by several WNBA teams, and everyone taking sides in the presidential election. It is ironic that this occurs in the year Muhammad Ali, one of the most significant activist athletes, passed away.

But reactions to the election results highlight an important qualifier to discussion of speech within sports--different sports feature and express very different political attitudes and ideas. When we think of athlete speech, we must parse it by sport and even role within the sport.

Consider recent comments by coaches in different sports about the election. Two NFL coaches--Bill Belichick of the Patriots and Rex Ryan of the Bills--were high-profile Trump supporters; Trump read a letter of support from Belichick at one of his final rallies on Monday. Meanwhile, three NBA coaches--Stan Van Gundy of the Pistons, Steve Kerr of the Warriors, and Gregg Popovich of the Spurs--reacted angrily to Trump's election. Kerr spoke about the difficulty of talking to his daughters and facing his players in the wake of the misogyny and racism of the campaign. Popovich, a thoughtful and well-read guy, went with empathy--"I'm a rich white guy, and I'm sick to my stomach thinking about it. I can't imagine being a Muslim right now, or a woman, or an African American, a Hispanic, a handicapped person"--and history, stating he feared we have become Rome.

The difference is explicable. The NBA is a "player's league" and is overwhelmingly African-American, so it makes sense that coaches would be more sympathetic to the targets of Trump's rhetorical ire. Meanwhile, football coaches all fancy themselves as George Patton, so their affinity for the authoritarian Trump is understandable.

Along the same lines, there was discussion earlier this fall about the absence of anthem protests in Major League Baseball. Adam Jones of the Orioles explained that baseball is a white sport, with fewer African-American players (8.3 % of players) who are easily replaceable and thus less willing to put themselves in position to get kicked out of the game by taking unpopular stands, especially within the game.

Friday, November 11, 2016
Could Donald Trump Expand Sports Betting Nationally Through His AG Appointment?

In the aftermath of Donald Trump's shocking election night victory, many gaming analysts are assessing what, if any, impact a Trump presidency might have on the U.S. gaming industry. Some point to his past experience as a casino owner/operator as a positive harbinger of things to come. But others astutely note that his backing by Sheldon Adelson (a staunch opponent of online gaming), coupled with the Republican Party regaining full control of Congress, could have a negative overall impact, particularly in the online sector. The possibility exists that a Republican-controlled Congress could enact legislation banning online gambling, and thereby roll back the clock for those states (e.g., New Jersey, Delaware and Nevada) that have already entered the online poker space. Whether or not that scenario actually comes to pass is unknown at this early juncture, but a number of leading analysts view the Republican control of all three branches of government as a potentially troubling development for online gambling.

But one area where a Trump presidency could benefit the gaming industry is in the sports betting sector. As many might recall (especially with the help of YouTube), President-Elect Trump was a vocal supporter of legalized sports betting when he owned several New Jersey casinos. During the early 1990's, when New Jersey was given a "one-year" window under PASPA to legalize sports betting, then-casino magnate Trump pushed hard for New Jersey to enact sports betting legislation, calling it "vital to keeping taxes low and putting the bookies out of business." While New Jersey failed to beat the PASPA clock in 1993 and have been unsuccessful (to date) in overcoming the federal ban in court, the Garden State's sports betting hopes could receive a significant boost with Mr. Trump in the White House and New Jersey Governor Chris Christie in an influential advisory or cabinet role (perhaps as Attorney General).

Specifically, President-elect Trump could influence sports betting policy through his appointment of a new Attorney General. Under PASPA, the Attorney General is empowered to seek an injunction against any violation of PASPA in federal district court. (28 U.S.C. § 3703). By contrast, "professional sports organizations" and "amateur sports organizations" (the only other entities with standing to sue under PASPA) can seek injunctive relief for violations of PASPA only when their own "game[s] are alleged to be the basis such violation." (Id.). Thus, a sports organization would only have standing to sue under PASPA to protect its own games, but not those associated with another sports organization (despite Judge Michael Shipp's ruling to the contrary in the Christie II case). For example, while the National Basketball Association could seek a court injunction against any State or federally-recognized Indian Tribe that has legalized sports betting on NBA games (since it meets PASPA's definition of a "professional sports organization" with respect to its own games), it would lack standing under PASPA to seek injunctive relief to block the wagering on the competitive games of other sports organizations, such as those sponsored by Major League Soccer or the PGA Tour.

This standing limitation could provide states with an unconventional avenue for legalizing sports betting on soccer, golf, tennis, boxing, mixed martial arts, arena football, and NASCAR (as well as a number of other "non-major" sports), since the governing organizations of those sports might not object to such wagering schemes, and, indeed, might tacitly (or even explicitly) support it to increase interest in their sport. And the five major U.S. sports leagues (NBA, NFL, MLB, NHL, and NCAA) would be powerless to block it in court, so long as the legislation at issue expressly excluded those organizations' athletic contests from any new sports wagering regime. Of course, this strategy would only work if the U.S. Attorney General (who is empowered to seek injunctive relief against any violation of PASPA, irrespective of the sport) opted not to pursue litigation against states that have authorized this limited form of sports gambling. But as we have seen with the recent spate of state legislation approving fantasy sports wagering (which arguably falls within PASPA's broad scope), the Attorney General has not exactly been a vanguard of PASPA enforcement. In the nearly 25-year history of PASPA, the Attorney General has never initiated a lawsuit against a state for violating PASPA, opting instead for the more subservient role of an "intervener" or "interested party" in the two PASPA lawsuits brought by the major sports leagues against the State of New Jersey. Although a number of states have explicitly legalized fantasy sports through legislative enactments, the Attorney General has not involved PASPA to block any of those new laws, and probably never will.

With the Attorney General possessing so much discretionary power (especially when the major sports leagues are not incentivized--or, in some cases, not even allowed--to sue), Mr. Trump's election could lead to the expansion of traditional sports betting without requiring any Congressional action. By way of illustration, a new Presidential administration could decide that blocking state-authorized sports betting is not a high enough priority (especially when it is supported by the affected sports organizations) and thus direct the new Attorney General not to pursue any legal challenges when the sports betting at issue is legal under state law and is undertaken with the approval or acquiescence of the affected sports organizations. This could provide an opportunity for a state like New Jersey to enact a true sports gambling regime--with regulatory oversight--albeit one that is somewhat limited in nature (involving only those sports organizations that support wagering on their games). Perhaps Major League Soccer or mixed-martial arts could whet the sports betting appetite for now. After all, having some sports betting is better than having none. A measure like this could provide some temporary relief to New Jersey's struggling casinos and racetracks until a more comprehensive federal regime is enacted. This is one potentially intriguing approach for expanding legal sports betting without repealing or amending PASPA.

Friday, November 04, 2016
Locker room talk

One disappointing thing about the outcome of the Donald Trump/Billy Bush recording is that the Trump/GOP excuse of "it was locker room talk" stuck. I spent a lot of time in locker rooms, including for high-level college basketball, in the '80s and '90s (a considerably less-enlightened time), but never heard anything remotely like that. There certainly was discussion, often graphic and crude, of women and sex and the attractiveness of various women. I never heard anything close to someone bragging about doing anything without consent or getting away with doing anything without consent.

All of which is a precursor for saying I am troubled by Harvard's decision to cancel the remainder of its men's soccer season (with the team leading the Ivy League and in line for an NCAA bid) over the team-created "scouting reports" of members of the women's soccer team. According to reports, 1) the original document that surfaced was from 2012 (talking about that year's freshmen, who have since graduated and spoken out about what the players did and said), 2) the current players said they were not doing this anymore and that the first one was an isolated incident, but 3) it turned out this is an ongoing team tradition, including by the current team. So it is not clear whether the decision to suspend the team is because of the report or because they were not forthcoming with the administration (although that might not matter).

Here is the thing: This is what "locker room talk" sounds like. Which is not to defend what they did. It is obnoxious and crude and disrespectful. And (although 21-year-old me probably would not have recognized this in 1989) it contributes to a culture and attitude of inequality between men and women. But such speech is not unlawful and does not (as far as the excerpts I have read) describe doing (or even wanting to do anything) unlawful. It also was not created for wide public consumption, although it was easily publicly discoverable and made available. In other words, the scouting report is, without question, constitutionally protected speech, not the kind of thing that would (or at least should) get regular students in trouble.* And in the absence of wrongdoing beyond general obnoxiousness and the utterance of misogynist ideas, canceling the season seems an extraordinary measure.
[*] Insert usual disclaimer about Harvard being a private institution not bound by the First Amendment and about Harvard possibly having greater latitude over speech by its employees/representatives.
Harvard's response triggers unfortunate comparisons to Duke lacrosse. Duke canceled the 2006 lacrosse season three weeks after the infamous party, although eleven days before any players were charged. Many people believe to this day that Duke was correct in that move. But given that it is beyond dispute that no sexual assault occurred, those who defend the suspension must believe that it was propr was based on nothing more than obnoxious, but entirely lawful, behavior by the players: Hiring an exotic dancer, shouting racial slurs in a verbal altercation (although this was disputed), and one player sending a violently misogynistic story around to his teams via email. In other words, no different than what Harvard has done here.

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.