Theodore Olson of Gibson, Dunn & Crutcher has been on an impressive hot steak of late. But the former U.S. solicitor general was dealt a major loss on Tuesday in his bid to help New Jersey Governor Chris Christie legalize sports betting in the state.
As our affiliate New Jersey Law Journal reports, the U.S. Court of Appeals for the Third Circuit struck down a New Jersey law attempting to legalize sports betting. The ruling, which the governor has already vowed to appeal to the U.S. Supreme Court, is a win for the National Football League, the National Collegiate Athletic Association, and other professional and amateur sports leagues. The decision is also a big victory for Olson's successor as solicitor general, Paul Clement of Bancroft, and for Clement's co-counsel at Skadden, Arps, Slate, Meagher & Flom.
The appeals court affirmed an earlier ruling that the New Jersey law that legalized sports wagering conflicted with—and was therefore superseded by—the Professional and Amateur Sports Protection Act, a 1992 federal statute banning sports betting in all states except Nevada. The court also held that PASPA was a constitutional exercise of Congress' power, siding with PASPA defenders like the NFL and NCAA.
"A state law contrary to a federal regulatory or deregulatory scheme is void under the Supremacy Clause," Circuit Judge Julio Fuentes wrote for the panel. "New Jersey's sports wager law conflicts with PASPA and, under our Constitution, must yield."
Tuesday's ruling did offer a glimmer of hope to the governor's office, thanks to a partial dissent written by Judge Thomas Vanaskie. He concluded that PASPA is unconstitutional because it violates principles of federalism.
"PASPA is no ordinary federal statute that directly regulates interstate commerce or activities substantially affecting such commerce, " he wrote. "Instead, PASPA prohibits states from authorizing sports gambling and thereby directs how states must treat such activity."
Olson represented the New Jersey governor's office along with Gibson Dunn partner Matthew McGill. Christie is also represented by attorneys at the New Jersey Attorney General's Office.
In their August 2012 complaint, the leagues claimed the spread of legalized sports betting "would irreparably harm amateur and professional sports by fostering suspicion that individual plays and final scores of games have may have been influenced by factors other than honest athletic competition."
Clement argued for the sports leagues at the Third Circuit in June. The leagues also represented by Jeffrey Mishkin of Skadden and William O'Shaughnessy of McCarter & English.
