Despite losing every decision winding its way through the federal courts, the New Jersey lawsuit challenging the Professional and Amateur Sports Protection Act (PASPA) that bans sports betting in all but four states achieved a victory of sorts last week.
When a three-judge panel of the Third Circuit Court of Appeals turned down the suit by a 2-1 margin in 2014 (following a similar ruling a year earlier), New Jersey attorneys filed a request for the court for an “en banc” or full court hearing, which was granted. These appeals are usually declined quickly without any response from the winning side—in this case the leagues—required. To be granted the “en banc” hearing, a majority of the judges have to agree there is a reason to hear more arguments, so the result is encouraging to those who seek to legalize sports betting in the Garden State. In addition, two appeals court judges have recused themselves from the case, meaning that New Jersey only has to convince six out of 10 judges, instead of seven out of 12.
Two New Jersey Congressmen, Rep. Frank LoBiondo and Rep. Frank Pallone, applauded the move.
“Not only do the citizens of New Jersey overwhelmingly support legalized sports betting and the revenue that would come to the state with it, but existing federal law picks winners and losers, and is unconstitutional and arbitrary,” they wrote in a release. “Several states can already operate sports betting, but New Jersey has been shut out despite the will of our citizens. We remain committed to seeing sports betting become legal in New Jersey, and this reconsideration is a positive and important development.”
New Jersey is attempting to circumvent a federal ban on sports betting by instituting a self-regulated industry that could operate at the state’s casinos and racetracks. The state is arguing that the current federal ban is on state regulated sports betting.
The Appeals Court panel originally ruled that the state was still regulating sport’s betting by limiting it to casinos and racetracks, applying age restrictions and other rules.
Legal experts characterized the decision as a victory for Christie.
“It’s anybody’s ballgame, but I believe New Jersey has the better of the arguments,” said Daniel Wallach, a sports and gambling attorney at Becker & Poliakoff PA in Fort Lauderdale, Florida, who’s been watching the case. “Granting a rehearing is a huge step.”
The decision to hear the argument en banc is good news for the state’s case, says Wallach.
“It’s just a question of where does the majority lie,” he said. “All signs are pointing to the majority siding with New Jersey.”
State Senator Ray Lesniak, who started the case on his own, was excited.
“It’s huge,” Lesniak said. “Chances are, they wouldn’t have vacated the ruling if they were only going to later on confirm it.”
However, there are many inconsistencies with this case, starting with the fact that the one judge who has presided over both Third Circuit decisions wrote the majority opinion in the first and was the dissenter in the second.
“The court is very concerned about the consistency of its published opinions and is likely looking to resolve any conflicts between the two,” Christopher Soriano, an attorney for Duane Morris, told ESPN.
“En banc petitions are rarely granted,” said Dan Etna, a Manhattan-based sports law attorney. “The high profile of case, the fact that a Third Circuit judge ruled against N.J. the first time and then dissented the second time, and the lawsuit involving issues of statutory interpretation and application were sufficient to yield a recipe for rehearing. The Third Circuit may also be interested in having its house in order in case the lawsuit works its way up to the U.S. Supreme Court.”
