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Friday, September 05, 2014
SLB Contributors Headline ABA Annual Meeting Program on Sports Betting Legalization; Foreshadows NBA Commissioner Adam Silver's Surprising Public Comments

NBA Commissioner Adam Silver sent shock waves throughout the sports and gambling industries when he appeared at the Bloomberg Sports Business Summit yesterday and proclaimed that expanded legal sports betting was "inevitable" and that the league would "ultimately participate in that." This was shocking because the NBA has long been opposed to sports betting (who can forget the Tim Donaghy scandal?) and had recently joined forces with the three other major professional sports leagues and the NCAA in successfully blocking New Jersey's efforts to legalize sports betting. Of course, as some have noted, Commissioner Silver's comments recall his interview earlier this year when he acknowledged that sports betting increases interest in games that might otherwise be blowouts. Nonetheless, it is a quantum leap to go from acknowledging the obvious (but illegal) to embracing the concept of state-regulated sports betting, especially so soon after the recent federal court battle ended at the doorsteps of the Supreme Court. His encouraging comments may open the door to creative legislation (from pro-gaming states such as New Jersey and Delaware) in which single-game sports wagering would become legal and, in exchange, the leagues would be paid a licensing fee and/or share in the revenues derived from sports wagering.

Just three weeks earlier, Sports Law Blog stalwarts Michael McCann and Gabe Feldman spoke on this topic at the ABA Annual Meeting in Boston. They were joined on a panel by former U.S. Solicitor General Theodore B. Olson, Supreme Court litigator Erin Murphy, and West Virginia Solicitor General Elbert Lin (pictured below), the principal players in the NCAA v. Christie litigation. The title of the program was Game-Changer: The States' Big Gamble on Legalized Sports Betting, and, as its name implies, the program examined the controversy (as well as the federal constitutional issues) surrounding the efforts by states to legalize and regulate sports betting. As many of you know, a 1992 federal law (the Professional and Amateur Sports Protection Act a/k/a "PASPA") prohibits state-sponsored sports betting in every state except for those states (such as Nevada) that had conducted a sports wagering scheme at any time between January 1, 1976 and August 31, 1990. New Jersey had challenged the constitutionality of PASPA in the NCAA v. Christie litigation, and persuaded one Third Circuit judge (albeit, in a dissenting opinion) to conclude that PASPA was unconstitutional because it "violated principles of federalism.

Anticipating (wrongly!) that the Supreme Court would grant certiorari, I persuaded the ABA's Tort Trial and Insurance Practice Section (I am the Chair of its Appellate Advocacy Committee) to present a CLE program devoted to this case, touting its "federalism" component that transcended sports law. I then invited the key players in the sports betting legal debate (Mr. Olson, Ms. Murphy and Mr. Lin) and two of the nation's leading sports law experts (Mike and Gabe, of course!) to be panelists. The ABA selected the program to be one of its "Presidential Showcase" events, owing to the nationally-significant subject matter and the quality of our speakers. The program was a resounding success, with some spirited exchanges among the panelists. Ted Olson really seemed to enjoy himself, as did Mike and Gabe. There is no better moderator than Mr. McCann, and Gabe brought some incredible insights to the issue of whether the sports leagues' recent partnering with daily fantasy sports leagues undermines their current opposition to sports betting. Thankfully, the program was videotaped, and we expect to post it soon.

The written program materials are available here.

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