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After failing two years ago in a bid to pave the way for Atlantic City casinos and New Jersey racetracks to offer Las Vegas-style sports betting, state officials were back on Tuesday to try again before the U.S. Third Circuit Court of Appeals.
The argument this time in the Philadelphia courtroom was that a second state sports betting law passed last fall is constitutional. Attorneys for the state said the new law was crafted keeping in mind the Third Circuit’s 2013 ruling that upheld a federal ban. The judges had concluded that a 23-year-old federal law, preventing most states from offering the betting, supercedes the state law.
That ruling noted that the state would be free, however, to repeal its sports betting laws “in whole or in part,” as long as it does not license or authorize such betting. Under the new state law, therefore, the tracks and casinos would be responsible for oversight of sports betting at their facilities.
"I want to channel Horton Hears a Who: 'I meant what I said, and I said what I meant: We followed your guidance 100 percent,’" said Michael Griffinger, speaking for state Senate President Stephen Sweeney and Assembly Speaker Vincent Prieto.
Judge Julio Fuentes expressed concerns that under the revised law, the state Casino Control Commission and Division of Gaming Enforcement — whose oversight of Atlantic City's casinos is considered as strict as any state in the country — and other state
agencies would play no role in sports betting.
"Laissez faire, no licensing whatsoever," Fuentes said before adding, "I guess it's not for us to say if that's good or bad."
Attorney Ron Riccio, representing the state's thoroughbred horsemen, argued that real estate, law and other professions already privately regulate themselves — and the tracks also can do so successfully.
"This doesn't mean that Monmouth Park will be the Wild, Wild West of sports betting" if New Jersey prevails in the case, he said.
But Paul Clement, who argued for the NCAA and four professional sports leagues on Tuesday, said that repeated attempts by the state in the last four years to bring sports betting to the tracks and casinos means that — in spite of language to the contrary in the law — the state still is improperly involved in trying to ensure casinos and tracks have sports betting.
Arguing for the state, Ted Olson countered that it would be "Orwellian" to claim that the state's current law constitutes an “authorization” by the state simply because it leaves open a private option for state tracks and casinos.
Judge Maryanne Trump Barry, one of the three appellate panelists, said as the hearing concluded that the judges would “take the matter under advisement” before issuing a final ruling. Sports law attorney Daniel Wallach, who attended the hearing, said he anticipates a ruling sometime in May.
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