Supporters of New Jersey sports betting walked into a special rehearing by a federal appeals court on Wednesday with some optimism, but they left the Philadelphia courtroom feeling less confident in their chances.
“I think it’s going to be a squeaker,” said state Sen. Raymond Lesniak (D-Union), a longtime supporter of sports betting in the state.
Lesniak said that, while he still feels New Jersey will win, he imagines the leagues will cry foul and will immediately look to Congress to re-engage on the issue.
Lesniak spoke after a special en banc rehearing at the U.S. Court of Appeals for the Third Circuit, where the state of New Jersey had a rare opportunity to restate its case for legalized sports betting in Garden State casinos and racetracks.
Last October, the court granted New Jersey’s motion request for an en banc rehearing, effectively vacating its previous 2-to-1 decision against the state and in favor of the four major American professional sports leagues and the National Collegiate Athletic Association.
New Jersey has attempted to circumvent the Professional and Amateur Sports Protection Act, a 24-year old federal law limiting sports wagering to just four states, by repealing all prohibitions against sports betting and deregulating it. The leagues contend, however, that by limiting the activity to already-licensed casinos and racetracks, the state would indeed be regulating it and thus, be violating PASPA.
Daniel Wallach, a Florida-based sports and gaming attorney with Becker & Poliakoff, said New Jersey’s chances of winning went from as high as 50 percent coming into the day to about 20 to 30 percent by the end of the hearing.
Wallach said that as far as he could tell, state attorney Theodore Olson’s argument “didn’t resonate” with several of the judges. That said, body language can only go so far in predicting which way a judge will sway.
“This is not science,” Wallach said.
If the state doesn’t come out on top, Lesniak says this is probably New Jersey’s last stand. A full deregulation of sports betting that does not include any provisions limiting the activity to licensed casinos and racetracks, which some have suggested might actually satisfy PASPA, is “not a practical solution,” according to Lesniak.
“This is the final hurrah,” Lesniak added.
While Lesniak may feel this is the end of the line for the state’s sports betting hopes, Wallach said he wouldn’t be surprised to see the court rule against New Jersey once again, but also offer a “framework” for how it might retry the case.
“New Jersey will take as much daylight as they’re given,” Wallach said.
A decision could take as long as three to five months to come down.