Handicapping the Supreme Court Votes on Sports Betting

It is the first Monday in October, which means the Supreme Court is back in session.

This term will feature several major cases, but for sports fans there is no case more significant than what most are calling the sports betting case. It is really two cases now consolidated as one: Christie v. NCAA and New Jersey Thoroughbred Horsemen’s Association v. NCAA.

At its most basic level, the case is about whether or not PASPA is unconstitutional. So will we have legalized sports betting? I handicapped the nine Supreme Court justice recently on Vice Sports to predict how they might vote on this weighty issue. I think by this time next year we’ll have sports books in at least a dozen states. Go ahead and take my picks to the bank.

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Transforming Into A Sports Law Expert For 104.9 The Horn

Legal Blitz Co-Founder Steve Silver recently joined Trey Elling and Brad Kellner on The Horn 104.9 FM in Austin, Texas to discuss a wild summer of sports law issues including the Supreme Court taking the sports betting case, OJ receiving parole, Hugh Freeze getting caught with his hand in the escort cookie jar, and Chris Spielman’s lawsuit against Ohio State.

Silver recently attempted to handicap how the nine Supreme Court justices will rule as to whether or not to strike down PASPA and pave the way for legal sports betting. It was his last piece for the now shuttered Vice Sports.

You can listen to Silver’s full interview here: Silver Interview on The Horn

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Legal Blitz Founder Named Super Lawyers Rising Star

The Legal Blitz is thrilled to announce that one of its founders, Steve Silver, is now a 2017 Super Lawyers Rising Star. Silver earned Rising Star honors for civil litigation defense in Pennsylvania.

A program of Thomson Reuters, Super Lawyers is a rating service of outstanding lawyers who, through a peer review and independent research process, have been identified as attaining a high degree of peer recognition and professional achievement.

Only the top 5 percent of Pennsylvania’s 50,000 lawyers and the top 2.5 percent of up-and-coming Pennsylvania lawyers are named to the Super Lawyers and Rising Stars lists, respectively.

Candidates are evaluated on 12 indicators of peer recognition and professional achievement, including verdicts and settlements; honors and awards; special licenses and certifications; pro bono and community service efforts; and scholarly lectures and writings. The ultimate objective of Super Lawyers is to create a credible, comprehensive and diverse list of outstanding attorneys that can be used as a resource for other practitioners and consumers searching for legal counsel.

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Maine’s DFS Regulation Bill Stalls In Committee

Thanks to this nation’s incoherent and inconsistent gaming laws at the federal level, the Daily Fantasy Sports industry is working overtime to deal with potentially 50 different state-level regulations.

But don’t feel sorry for DFS operators. Regulation is what the industry wants.

After DFS exploded into the nation’s conscience by purchasing nearly every commercial spot during the 2014 NFL season, states have struggled with how to deal with the online games. Thus far, 12 states have expressly permitted DFS to operate within their borders while five states have banned DFS. There is legislation pending in about 20 other states to license, tax, and regulate DFS — one of which is Maine.

Maine’s neighbor, Massachusetts, was one of the first states to regulate DFS due in large part because it is the home of DraftKings’ headquarters. Pulling DFS out of legal limbo in Vacationland has proven a slow slog so far.

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The Effort to Legalize March Madness Brackets in Pennsylvania Continues

Since “Selection Sunday” is right around the corner, allow this to serve as your regular reminder that those March Madness brackets about to flood your office are still technically not legal.

As I have written about in the past, bracket pools seemingly violate three separate federal laws, not to mention a myriad of state criminal laws.

First, the Interstate Wire Act of 1961 disallows individuals from “engaging in the business of betting or wagering [through the knowing use of] a wire communication for the transmission in interstate or foreign commerce.” Since the Wire Act applies to the Internet, online tournament pools that collect entry fees and pay out prize money would violate the Wire Act.

Second, the Uniform Internet Gambling Enforcement Act of 2006 (UIGEA) makes it illegal for those “engaged in the business of betting or wagering” to “knowingly accept” funds in connection with the participation of another person in unlawful Internet gambling. Although the UIGEA offers a special carve-out provision for “fantasy sports,” this carve-out only applies to games where winning outcomes are not based on the final score of actual game results. Since brackets are based solely on the final outcome of individual games, the fantasy sports carve-out is inapplicable and tournament pools do not comply with the UIGEA.

Finally, the hopefully soon-to-be extinct Professional and Amateur Sports Protection Act (“PASPA”), makes it illegal for any private person to operate a wagering scheme based on a competitive game in which “professional or amateur athletes participate.” PASPA does not include a specific exemption for March Madness pools. So there is an argument to be made that PASPA outlaws brackets.

Without diving into the abyss of federalism and 11th Amendment issues, at least one state is trying to let its citizens have a little fun this time of year. At the end of January, Pennsylvania State Senator Lisa Boscola introduced a bill to specifically legalize small office pools. It is currently awaiting considering in the Senate Judiciary Committee.

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Steve Silver Talks SCOTUS and Sports on The Horn 104.9 FM

Legal Blitz Co-Founder Steve Silver recently joined Trey Elling and Brad Kellner on The Horn 104.9 FM in Austin, Texas to explain how President Donald Trump’s Supreme Court nominee, Neil Gorsuch, could impact the future of sports.

Silver recently authored an in-depth analysis of how Gorsuch could cast deciding votes on sports betting, paying college athletes, and the enforcement of arbitration provisions for Vice Sports.

You can listen to Silver’s full interview here: Silver Interview on The Horn

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US Soccer and MLS Remain Silent On Trump’s Travel Ban

Sticking to sports is no longer an option.

Now that President Trump has temporarily banned entry into the United States of all persons from seven predominantly Muslim countries – court orders be damned — the sports world must deal with a divisive political move that has very real effects on international athletes.

Some top athletes like Olympic Gold Medalist Mo Farah have already condemned Trump’s controversial Executive Order. At least one American league, the NBA, has asked the U.S. Department of State for help in understanding Trump’s Order out of concern for Sudan-born players Thon Maker and Luol Deng.

Yet noticeably and shockingly silent on Trump’s move is the U.S. soccer community and the top professional soccer league in North America, Major League Soccer.

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New Wage Law Makes Free Agency in Philadelphia Awkward

Philadelphia rang in 2017 by becoming the largest American city to allow its government to dictate what is and isn’t healthy for its citizens to drink. The maligned “soda tax” went into effect January 1st tacking on a 1.5 cents per ounce tax on any beverage with sugar in it. Philadelphians are now penalized for consuming soda, sports drinks, juices, teas, and even almond milk. What a time to be alive.

Buried under the soda tax news was another major law passed by City Council that impacts all employers in Philadelphia — including sports teams. On December 8, 2016, City Council unanimously passed Philadelphia Bill No. 160840, which prohibits any employer in the city — both public and private — from inquiring into applicants’ wage histories. Mayor Jim Kenny is expected to sign the bill any day now, which will then take effect 120 days after signing.

Philadelphia is now the first U.S. city to ban employers from asking job applicants about salary histories. Prohibiting employers from asking about salary history is supposed to narrow the wage gap for women and minorities. Obviously, time will tell if this law solves that problem.

But how exactly are Philadelphia’s professional sports teams supposed to approach free agency under this new law while attempting to sign athletes, attract coaches, and recruit front office personnel?

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Steve Silver Exposes How The NCAA Masterfully Blocks Athletes From The Civil Justice System in Vice Sports Feature

Legal Blitz Co-Founder Steve Silver returned to his muckraking days to pen a special feature on a little known NCAA rule that effectively prevents athletes from successfully suing it — particularly when seeking an injunction to stop an erroneous suspension.

In his Vice Sports debut, Silver interviewed former skiing and football legend Jeremy Bloom, Drexel Sports Management Professor Ellen Staurowsky, and a litigator that has gone toe to toe with the NCAA for several high-profile clients, Richard Johnson.

In his piece titled, “How A Little-Known NCAA Rule Shuts Athletes Out of the Legal System,” Silver explores the history and masterful use of the NCAA bylaw known as the Restitution Rule. It is a rule that should concern anyone who believes in open access to the judicial system, impartial judges, and due process for athletes. Read the feature here.

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Colorado Defies PASPA With New Daily Fantasy Pari-Mutuel Offerings

Anyone who has ever read this blog or my pieces for Above the Law know that I fully support gaming in all forms.

In particular, I routinely advocate for nationally legalized sports gambling through the repeal of the problematic and incoherent Professional and Amateur Sports Protection Act (“PASPA”). Absent Congress completely repealing PASPA, or a Supreme Court reversal via New Jersey’s Hail Mary, we are now left with a system in which Nevada solely enjoys the revenue generated by sports betting, Delaware can offer select parlays, and the rest of the states can ponder why we have such inconsistent gambling laws as they stare at empty coffers.

Americans wager about $150 billion per year on sports betting, and only 3 percent of that is bet in Nevada. What this means is that the rest of the country is missing out on significant revenue that is instead going un-taxed to bookies and offshore websites thanks to a federal law enacted before internet wagering was so prevalent.

This is where creative states like Colorado come in.

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