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BOTC Law ‘Splainer: Supreme Court and Sports Betting

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On Monday, the Supreme Court struck down a federal law that banned sports gambling. What might it mean in Kansas?

Supreme Court Justice Alito Gives Talk At Georgetown Law School Photo by Chip Somodevilla/Getty Images

You may have heard. On Monday, the Supreme Court issued its opinions in Murphy v. NCAA. In doing so, they held unconstitutional a federal law that made sports gambling illegal. Want more information? See below.

What’s going on here?

In 1992, Congress passed the Professional and Amateur Sports Protection Act (PASPA). This law made it illegal for states or individuals to operate sports-betting schemes.* Note that it did not make sports-betting schemes a violation of federal law, and the federal government did not appropriate enforcement funds. Rather, enforcement was left to the Attorney General or private entities filling civil lawsuits against anyone who violated PASPA.

* The law exempted Nevada and three other states where sports betting was already legal. It also gave any states who wanted to follow their lead one year to do so. None did.

I’m with you. So who violated PASPA.

New Jersey (everything is legal in New Jersey!). On its first shot, in 2012, New Jersey’s legislature enacted a law that affirmatively authorized sports betting. The NCAA and three other sports leagues sued New Jersey over the law. They won in district court, the Third Circuit court of appeals affirmed, and the Supreme Court declined to hear the case.

Wait, what?

New Jersey gave it another shot. Instead of affirmatively authorizing sports betting, New Jersey passed a law in 2014 that repealed its prior laws that made sports betting illegal. You’ll never guess what happened next. The NCAA and three other sports leagues sued, and won at the District Court and the Third Circuit. But this time, the Supreme Court agreed to hear the case.

Then what did the Supreme Court say?

We’re going to get a little technical here. The 10th Amendment to the Constitution reserves all powers to the states or the people that are not specifically granted to the federal government. It’s that whole “dual sovereignty” thing you may or may not have learned about in social studies class, depending on how recently you went to school.

Anyway, from this arose the “anticommandeering principle.” The federal government’s law is the supreme law of the land, but only if it’s a valid exercise of the power granted to the federal government. And the federal government may not commandeer the states’ legislatures and require them to do, or not do, something. In this case, sports betting isn’t even a federal crime. The federal government merely required states not to authorize it.

In the majority opinion, there’s a long discussion of what “authorize” means. Ultimately, this doesn’t really mean much. The majority held that whether the law prohibits affirmative authorization or “authorization” by repealing prohibitions, it violates the anticommandeering principle.

Great, so I can start a sports book here in Kansas?

Not so fast, my friend. Sports betting is still prohibited by state law in Kansas. But earlier this year, the Kansas legislature considered House Bill 2752, which would legalize some sports betting in Kansas. The legislature did not pass the bill and is adjourned for the year, so legal sports betting will not be a thing until at least 2019, barring a special session.

Let’s also take a moment to laugh at representative John Barker’s comment that he is shocked — shocked — to find out that there is gambling going on in here!

Can’t wait to place my bets at Bill Snyder Family Stadium and Bramlage Coliseum.

Don’t get your hopes up. The bill considered by the legislature would have limited sports betting to the four casinos operated in Kansas, plus an application for smartphones. I very much doubt we will see betting windows on college campuses anytime soon. And good luck using your smartphone on that robust Wi-Fi in the stadium.

You’re such a buzzkill.

I’m a lawyer, that’s what we do. If it makes you feel any better, Congress is already considering legislation that would make sports betting a federal crime.

Thanks to Jon Morse and wildcat00 for their assistance with this post.