What Has California Done, and Why Does It Matter?
By Richard G. Johnson. Mr. Johnson was plaintiff’s counsel in Oliver v. NCAA, which was the first college athlete lawsuit against the NCAA to ever get to trial, the first to win, and the first to get paid. The Oliver case provided the impetus for the O’Bannon case and its ongoing progeny. Mr. Johnson was a primary background source for Taylor Branch’s seminal article, The Shame of College Sports. Joe Nocera, in his book, Indentured, called Mr. Johnson’s Submarining Due Process: How the NCAA Uses its Restitution Rule to Deprive College Athletes of their Right of Access to the Courts … Until Oliver v. NCAA the meanest law review article ever written. As a college athlete rights advocate and commentator, as well as a leading legal authority on the NCAA, Mr. Johnson is a member of the executive board of the College Sports Research Institute. Mr. Johnson holds his J.D., M.B.A., and B.A. from Case Western Reserve University, and he practices law in Cleveland, Ohio. Follow him on Twitter @PiranhaRGJ.
Over the last three weeks, a lot of back-slapping and hoopla has been extended over California supposed sticking it to the NCAA by legislating the “Fair Pay to Play Act,” when there is no such act at all. California Senate Bill 206, signed into law on September 30th, does not bear that title, and it does not mandate paying the players, let alone fairly paying them. Yet almost every media outlet repeated this misinformation, as did the Governor on national television, and now a few states are supposedly going to introduce their own similar legislation. Fuel for the train that is college athlete rights? Not if you actually expect the train to move. It’s like bragging about putting diesel in your high octane sports car.
Right up front, here’s a hint as to how to evaluate any like proposals to benefit college athletes: Any legislator who uses the NCAA propaganda term “student-athlete,” but who claims to be in favor of college athlete rights, simply has no idea what they are talking about. Ditto for any legislator who calls an athletic grant-in-aid a scholarship, when there is no such thing as an athletic scholarship. Word choices say a lot about what these people know or don’t know, and these are two billboards that should catch your attention.
Steve actually took this photo of Portland Headlight
Fully mobile wagering, no integrity fees, no data mandates, and low licensing fees. Is this heaven? No it’s Maine.
After a rapid and at times secretive legislative process, Maine legalized sports betting last week. Not only did the Pine Tree state beat the Massholes to the punch, but Maine also passed a bill that should serve as the post-PASPA model for other states looking to legalize sports betting.
Steve shared his initial reaction to the bill with Brett Smiley at Sports Handle here.
Steve also wrote an op-ed explaining why Maine’s soon-to-be law is both consumer and operator friendly for our friends at Legal Sports Report here.
Read both. Get smarter. And come visit Vacationland!
Last summer the U.S. Supreme Court struck down the federal prohibition of sports betting. This summer, the U.S. District Court for the District of New Hampshire smacked down the Department of Justice’s attempt to expand the Wire Act to all forms of online gaming — lotteries, poker, casinos — not just sports betting.
Although appeals may follow, for now gaming advocates can breathe a sigh of relief from expanded prosecution under the Wire Act after U.S. District Court Judge Paul Barbadoro clearly ruled that the Wire Act “is limited to sports gambling” in response to the New Hampshire State Lottery’s lawsuit against the DOJ. (Original Complaint here).
Following the decision, Steve was busy giving quotes to the media about the decision and its ramifications. You can read up on Steve’s thoughts and what other titans of gaming law had to say at the links below:
June 5, 2019 – Casino.org – “Gaming Lawyers Praise New Hampshire Court Ruling on Wire Act But Identify Decision’s Limitations”
June 4, 2019 – Legal Sports Report – “Why The New Wire Act Decision Might Not Be A Win For Sports Betting”
If you ever need to reach Steve for an interview, please contact firstname.lastname@example.org.
It was only a matter of time before litigation ensued.
There was zero chance that the DOJ could undo decades of law in its sweetheart deal to Sheldon Adelson and not expect to have to defend itself in court. So here we are.
On February 15, the New Hampshire Lottery Commission sued the DOJ seeking declaratory and injunctive relief to effectively stop the DOJ from enforcing its new opinion about the Wire Act against lotteries. You can read the full Complaint here.
Immediately, many commentators started declaring victory to New Hampshire because of “binding precedent” in the First Circuit limiting the Wire Act to sports. This is simply not true. As Steve explained to Legal Sports Report, there is some dicta in the First Circuit pertaining to the Wire Act, but this matter is anything but a slam dunk. You can read Steve’s comments on this issue in Prof. John Holden’s excellent article here.
Last year, Donald Trump’s administration did everything it could to uphold the federal prohibition of sports betting. It obviously didn’t go so well.
This year, however, Trump’s bizarre anti-gambling stance is back with a vengeance. Last week, the DOJ dropped a bomb on the online gaming industry when it suddenly reversed its prior 2011 opinion that the Wire Act only applied to sports betting and now argues that the Wire Act encompasses all forms of wagering. In other words, online lotteries, interstate poker compacts, and interstate online gaming are likely over.
The new memo not only reverses the DOJ’s own 2011 opinion, but it contradicts the legislative history of the Wire Act and clashes with cases in the Fifth and First Circuits.
The Wall Street Journal reported that the DOJ’s reversal came at the request of casino magnate and Republican mega-donor Sheldon Adelson, which presents a whole host of other problems beyond wrecking the online gaming industry.
Steve breaks down the chaotic ramifications of the DOJ’s opinion on Above the Law, which you can read here.
Apologies for the long hiatus, but it has been a wild post-PASPA summer.
In the aftermath of Murphy v. NCAA, Steve has tried to keep pace with the rapid developments in the sports betting world with New Jersey, Delaware, Mississippi, and West Virginia launching sports books in time for football season. You can catch Steve’s appearance on “Closer Look with Rose Scott” on WABE here. Steve also recently published a blog about how employers can handle sports betting in the workplace here. And last but not least, Steve was the first guest on Temple Law Review’s Parliament Podcast where he discussed the future of sports betting.
But the major news to announce is that Steve is going back to school AS A PROFESSOR teaching a class on sports betting and daily fantasy sports. Just an adjunct and it is pass/fail. But still, how many of you wished you had this class when you were in school? If you are interested in the syllabus or the course materials, feel free to contact us. Many thanks to the University of Maine Law School for having the foresight, trust, and vision to make this a reality.
After the U.S. Supreme Court dropped a bomb on the sports world on May 14 by declaring the Professional and Amateur Sports Protection Act (PASPA) unconstitutional, Legal Blitz co-founder Steve Silver went into overdrive to lend his analysis to several media outlets.
Bloomberg Law interviewed Steve for a piece on how the decision will impact blockchain technologies here. Then Steve wrote a quick look at the major takeaways of the Court’s ruling for Vice Sports here. He finished the week by taking a deep dive into the legal weeds for Above the Law here.
This is only the beginning of the new post-PASPA world and we will post updates on Steve’s media appearances as they occur.
The anxiously-awaited SCOTUS sports betting decision could arrive as early as March 19, but likely no later than June. If my prior predictions are correct, PASPA is dead and states will be free to join Nevada in offering legal sports betting.
Apparently the professional sports leagues, MLB and NBA in particular, are not feeling so hot about their chances. Sensing a loss at the Supreme Court, the leagues are now going around state to state trying to lobby for “integrity fees” aka a cut of the action. It is a transparent money grab.
But as I recently analyzed for Above the Law, cutting the leagues in via integrity fees will actually harm the integrity of the games that the leagues claim they are protecting by keeping business offshore. You can read my full take here.
For all the East Coast sports law enthusiasts out there, you can check out Legal Blitz Co-Founder Steve Silver in New York City next month at the Sixth Annual Cardozo Sports Law Symposium on March 16, 2018. Silver will appear on a panel called “Sports, Free Speech and the First Amendment” with Scooby Axson, Writer at Sports Illustrated & US Army Veteran; Mark Conrad, Director of the Sports Business Program at Fordham & Sports Author; and Elie Mystal, Executive Editor for Above the Law.
There are 4.5 CLE credits available with other panels on “The Complex Relationship between the NCAA and NBA” and “The Future of Sports in the Age of Virtual Reality.” You can register here.
If you can make it, be sure to say hello.