Abstract
It has been my honor to be a colleague and friend of Professor Ryan M. Rodenberg for many years, respecting his work and commentary on gaming law-related issues throughout. Professor Rodenberg had been eyeing New Jersey's efforts to legalize sports betting within the state's borders for a long time and was planning to pounce on the opportunity to provide a brief should the legal battle surrounding New Jersey's attempts ever make its way to the U.S. Supreme Court. As such, there was no surprise in discovering that Professor Rodenberg filed a brief as the case makes it way to the highest court. Perhaps the most interesting wrinkle of the brief is that it was filed in support of neither party.
In his brief, Professor Rodenberg notes that the petitioners have attempted to use the anti-commandeering doctrine (a doctrine that precludes Congress from commanding states to act against their will) to bypass the prohibitions in the Professional and Amateur Sports Protection Act of 1992 (PASPA); however, he comes to the conclusion that the case can be resolved without the Court even engaging in an analysis concerning the same. Instead, Professor Rodenberg suggests that the Court can simply review the text of PASPA, which grandfathered in a select number of states' existing sports betting laws (i.e., Nevada) and thereafter precluded other states from establishing sports betting schemes within their respective borders, to dispose of the case. One question that Professor Rodenberg suggests deserves some thought is whether the various U.S. professional sports leagues and the National Collegiate Athletic Association (NCAA) should legally have the authority to enforce the provisions of the federal Act.
The bold finding by Professor Rodenberg is that there are two parts of PASPA that are unconstitutional, but he notes that the Court can choose to either get rid of PASPA in its entirety or sever those sections that currently cause the Act to come into constitutional question. First, Professor Rodenberg determines that PASPA violates the equal sovereignty doctrine by providing disparate treatment to the states. Second, he answers that the U.S. professional sports leagues and NCAA should not have regulatory power and claims that PASPA is in violation of constitutional limits on the legislative delegation of regulatory power.
While not writing the brief for either side of the dispute, Professor Rodenberg seems to take the position that something needs to be done to correct the inherent issues found within PASPA. It can either be solved by killing the Act completely or removing its damaged parts. It plays to the favor of the petitioners without being overly generous to them.
If Professor Rodenberg's commentary is carefully reviewed by the Court, then it could lead to sweeping change in sports betting laws across the United States, which has the potential to directly or indirectly affect all constituents of the nation.