HomePublicationsNewsletter ArchiveVolume 19Issue 25Third Circuit Court of Appeals Upholds Ban on New Jersey Sports Wagering

On Tuesday, September 17, 2013, a three judge panel of the United States Court of Appeals for the Third Circuit issued a 128-page Opinion and Judgment affirming the February, 2013 decision of the U.S. District Court (D.N.J.) to issue a permanent injunction prohibiting the State of New Jersey from implementing a recently enacted law which would allow for sports wagering to be held at the Atlantic City Casinos and the state's horse race tracks.   The decision to uphold the ban on the expansion of sports wagering to New Jersey (which was a 2-1 majority decision) effectively finds that the Professional and Amateur Sports Protection Act (“PASPA”), the federal law which prohibits the expansion of sports wagering outside of the licensed Nevada sports books and certain limited lottery games and sports pools previously authorized in Oregon, Delaware, and Montana, is constitutional.  The Court's majority concluded:

"Having examined the difficult legal issues raised by the parties, we hold that nothing in PASPA violates the U.S. Constitution. The law neither exceeds Congress’ enumerated powers nor violates any principle of federalism implicit in the Tenth Amendment or anywhere else in our Constitutional structure...New Jersey and any other state that may wish to legalize gambling on sports within their borders are not left without redress. Just as PASPA once gave New Jersey preferential treatment in the context of gambling on sports, Congress may again choose to do so or, more broadly, may choose to undo PASPA altogether. It is not our place to usurp Congress’ role simply because PASPA may have become an unpopular law. The forty-nine states that do not enjoy PASPA’s solicitude may easily invoke Congress’ authority should they so desire." Opinion at p. 105-106.

Of note, in a 22-page opinion which concurred with the majority in part, but also dissented in part, Judge Thomas Vanaskie stated that he did find PASPA's prohibitions to be unconstitutional:

“…the federal prohibition of state-authorized sports gambling does not emanate from a federal regulatory scheme that expressly or implicitly preempts state regulation that would conflict with federal policy. Instead, PASPA attempts to implement federal policy by telling the states that they may not regulate an otherwise unregulated activity. The Constitution affords Congress no such power.”  Opinion at p. 122.

The Defendants in the case (including New Jersey Governor Chris Christie, the President of the New Jersey Senate, the Speaker of the New Jersey General Assembly and the Director of the New Jersey Division of Gaming Enforcement , among others) may now seek to have the matter reconsidered, either by this three judge panel, or by the entire Third Circuit Court of Appeals sitting en banc.  They may also request a writ of certiorari for review by the United States Supreme Court.  A spokesman for Governor Christie has stated that he will take the matter to the U.S. Supreme Court, if necessary.

For the full opinion, please visit: http://www2.ca3.uscourts.gov/opinarch/131713p.pdf

 

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