Last-Minute Appellate Ruling Limits Sports Betting in Delaware
Just eight days before Delaware was to roll out an ambitious range of sports betting options, the U.S. Court of Appeals for the Third Circuit granted a victory to four professional sports leagues (Major League Baseball (MLB), the National Basketball Association (NBA), the National Football League (NFL) and the National Collegiate Athletic Association (NCAA). Acting on the leagues' request for a preliminary injunction under the Professional and Amateur Sports Protection Act (PASPA), 28 U.S.C. §§ 3701 et seq„ the court restricted the state's program to parlay bets on multiple NFL games, which are the type of bets that Delaware offered briefly in 1976. The ruling will be explained by a written opinion to be released in the future.Office of Commissioner of Baseball v. Markell, No. 09-3297 (Aug. 24, 2009).
Two aspects of the court's action were noteworthy. First, although decisions on interlocutory appeals like this one ordinarily find merely that one side is "likely" to prevail on the merits, the Third Circuit ruled unequivocally, "as a matter of law," that the Delaware scheme violated PASPA. In so doing, the appellate court removed virtually any basis for the state to oppose a permanent injunction.
The second is that the court's initial order left considerable ambiguity. Even the sports leagues concede that Delaware may offer parlay bets on multiple NFL games, which were legal in the state during the 1976 NFL season, however, the court's order did not explain whether that authority is limited to exactly the three types of parlay bets offered in 1976, or whether the state may offer similar types of parlay bets. Equally unclear was whether Delaware's authority is limited to bets on NFL games. The written opinion likely will shed light on these questions.
Additionally, a federal lawsuit pending in New Jersey seeks a ruling that PASPA allows state governments to offer sports betting. iMEGA v. Holder, No. 09cv01301-GEB-TJB (D.N.J.). The New Jersey lawsuit should not be foreclosed by the decision on Delaware's program. The New Jersey case presents constitutional claims under the federal commerce, equal protection, and due process clauses, while Delaware argued only that PASPA expressly permitted it to conduct a full range of sports betting.
