In today’s hyper-polarized world there is at least one thing everyone can agree on — the NCAA is a sham. And all nine United States Supreme Court justices agree.
Today, SCOTUS handed down a rare, unanimous 9-0 decision in NCAA v. Alston, slamming the NCAA’s attempt to escape antitrust scrutiny and limit education-related benefits. Justice Neil Gorsuch’s majority opinion is a great read with potentially far-reaching implications despite the narrow issue before the Court.
Justice Brett Kavanaugh’s concurring opinion, however, burns the NCAA’s house of cards to the crowd in a blistering rebuke of “amateurism” in a multi-billion dollar college sports industry. Here is the conclusion to his opinion in all its glory:
To be sure, the NCAA and its member colleges maintain important traditions that have become part of the fabric of America—game days in Tuscaloosa and South Bend; the packed gyms in Storrs and Durham; the women’s and men’s lacrosse championships on Memorial Day weekend; track and field meets in Eugene; the spring softball and baseball World Series in Oklahoma City and Omaha; the list goes on. But those traditions alone cannot justify the NCAA’s decision to build a massive money-raising enterprise on the backs of student athletes who are not fairly compensated. Nowhere else in America can businesses get away with agreeing not to pay their workers a fair market rate on the theory that their product is defined by not paying their workers a fair market rate. And under ordinary principles of antitrust law, it is not evident why college sports should be any different. The NCAA is not above the law.
As Maine attempts again to legalize sports betting following Gov. Janet Mills’ 2020 veto, Steve has been making the media rounds. Below is a round-up of recent coverage of Maine’s second crack at joining the legal sports betting party.
Maine Restarts Sports Betting Talks With Tethering Debate, Action Network, April 30, 2021
Legislative Committee Shows Support For Allowing Sports Betting In Maine, Maine Public, April 30, 2021
Game on: Maine legislators reintroduce bills that would legalize sports gambling, News Center Maine, May 1, 2021
Maine Sports Betting: To Tether Or Not To Tether Mobile Licenses, Legal Sports Report, May 3, 2021
Maine Lawmakers Aiming To Please Governor Or Create Veto-Proof Sports Betting Bill, Sports Handle, May 3, 2021
Last time around in Maine, the powers that be managed to kill a bill to legalize sports wagering that the legislature sent to Gov. Janet Mills. This time around, while time and a pandemic have changed the landscape, pretty much the same bill to open a competitive marketplace is back on the table.
But while legal sports betting expands nationwide and so do state budget woes, it’s unclear if the same fate awaits the measure. Sports betting will once again be sponsored by Sen. Louis Luchini, who filed ahead of a special session that will convene on April 28.
In June 2019, the only two casino operators in Maine, Penn National Gaming (PNG) and Churchill Downs Inc., determined that having no legal sports betting would be preferable to an open market where casinos did not act as the license gatekeepers. In other words, the companies wanted full control of which sportsbooks got licenses to go online in the state.
Luchini’s LD 553 in 2019 would have allowed casinos, commercial racetracks, certain off-track betting facilities, slot machine facilities, and federally recognized Indian tribes, as well as “qualified gaming entities,” to apply for a license. It sanctioned pretty much all comers fit to run a sportsbook in another state or in general.
“Sen. Luchini’s bill is nearly identical to the one that garnered bipartisan support from two-thirds of the Maine Senate and the majority of the Maine House last session before Gov. Mills vetoed it,” the chairman of the Maine Gambling Control Board, Steve Silver, an attorney in Portland, Maine, told Sports Handle Wednesday. “The bill is a straightforward, free-market approach with a sensible licensing and taxation structure.
“The need for new, online gaming revenue is even more critical during the pandemic. I get the sense that Mainers are frustrated reading daily headlines about state budget woes when next door in New Hampshire they are raking in about $1 million per month in new tax revenue from sports betting.”
To read Brett Smiley’s full story on Sports Handle and hear more of Steve’s thoughts, click here.
Despite years of claiming in federal courts that it would suffer irreparable harm from legalized sports betting and after recently telling Congress amateurism would literally die if sports betting expanded, the NCAA shockingly allowed the University of Colorado to partner with PointsBet Sportsbook. The five-year corporate partnership is the first such agreement between a Power 5 school and a sportsbook.
Brett Smiley of Sports Handle interviewed Steve. You can check out his thoughts here.
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 email@example.com.
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.