Supreme Court Paves the Way to Sports Wagering

May 14, 2018

In a victory for states’ rights and sports fans looking to cash in on their insight, the Supreme Court ruled today in favor of allowing states to determine whether to legalize sports wagering in Murphy v. NCAA.

Writing for the majority, Justice Alito ruled that the Professional and Amateur Sports Protection Act’s (“PASPA”) prohibition of state authorization of sports wagering violated the Tenth Amendment’s anti-commandeering doctrine, saying that the provision “unequivocally dictates what a state legislature may and may not do… A more direct affront to state sovereignty is not easy to imagine.”  Justice Alito then refuted the respondents’ preemption arguments on the grounds that the Constitution “confers upon Congress the power to regulate individuals, not States,” and PASPA’s prohibition on state authorization can, in no way, be understood as a prohibition on individuals.  Finally, the Court determined that offending portion of PASPA is not severable from the rest of PASPA and, therefore, the entire statute is struck down.

Justice Thomas concurred with the opinion but expressed his concern regarding the Court’s method in determining the severability of offending sections of a statute.  Justice Ginsburg wrote a dissenting opinion that Congress was within its authority to prohibit sports wagering since the activity substantially affects interstate commerce, and even if the prohibition is unconstitutional, it is severable from the law and PASPA should still stand.  Justice Breyer concurred in part with the majority decision that PASPA’s prohibition of state authorization of sports wagering was unconstitutional, but he agreed with Justice Ginsburg in that the provision is severable from the rest of the statute.

Does this mean you can start wagering on MLB games and the NHL playoffs?  Since the Court reversed the Third Circuit's decision regarding the State's 2014 sports wagering law, casinos and racetrack may engage in sports wagering, and each individual venue is left to craft their own regulation.  However, the casinos and racetracks are now waiting for the State Legislature to create a regulatory framework.  Legislation was introduced recently that will do just that (Assembly Bill No. 3911 was introduced on May 7, and Senate Bill No. 2602 was introduced today).  Senate President Stephen Sweeney said that the Senate intends to move quickly on sports wagering and anticipates passage by early June.

For more information about the potential impacts of this ruling or what steps you can take to effectively leverage same, please contact Nicholas R. Amato, Esq., Chair of the firm’s Casino & Gaming Law Practice Group, at or 973-533-0777.

Tags: Supreme CourtGenova BurnsGenova Burns LLCNew JerseyPaul RozenbergNicholas AmatoCasinoGamingSports WageringPASPA