Monday morning the Supreme Court of the United States (SCOTUS, to its close friends) will hear Christie v. NCAA, the most important gaming industry case in three decades. Not since California v. Cabazon Band of Mission Indians could a SCOTUS ruling so affect the day-to-day activities of hundreds of American casinos, not to mention the millions of gaming customers who want to legitimately engage in a favorite pastime but currently gamble illegally.
We all know what the case is about: New Jersey seeks to have the Professional and Amateur Sports Protection Act (PASPA) overturned, allowing state-sponsored sports betting. In 2013 New Jersey voters passed a constitutional amendment approving sports betting, but the state has been stopped in the lower courts by a combination of the federal government and the sports leagues, especially the NFL and NCAA, who feel that increased access to sports betting will hurt the integrity of amateur and professional sports.
But tomorrow’s climax does not result from New Jersey’s court filings as much as it does from the efforts of the American Gaming Association and its Chief Executive Officer Geoff Freeman. This statement is not made lightly – it is simply the truth as I see it.
December 4, 2017 is the second of three big days, the first of which was June 27, 2017, when SCOTUS surprised the gaming world (and everybody else) by agreeing to hear Christie v. NCAA – and it is that day when AGA efforts and strategies proved their worth.
According to statistics I have read, SCOTUS gets about 1,700 petitions every year and hears about 65 cases – so getting heard by the court is as much of the battle as what happens in front of the bench and, later, behind closed doors. In fact, for less-publicized or less-politicized cases, getting heard probably is the battle. The Supreme Court bases its decision to hear cases on several factors, which can be summarized as (1) whether a case resolves a conflict of law created by lower courts rulings; (2) whether the case is considered important to society, or speaks to the interests of the justices; and (3) whether a lower court ruling disregards a past Supreme Court decision.
For Christie vs NCAA, we can rule out factor (1), since every lower court in this case and other closely-related cases has gone with the federal government and the leagues that support PASPA (not to mention that the Department of Justice is in favor of the status quo). And lower court rulings on Christie vs NCAA do not disregard any past Supreme Court decisions, so (3) is also not applicable.
So this case is before the Supreme Court because of factor (2), that the justices decided that it was important, or of personal interest. And the organization steadily and brilliantly building the case for importance, over the last three years, has been the American Gaming Association.
Everyone agrees that the AGA’s anti-PASPA campaign has been steady; in fact, I’m sure the words “overkill” and “broken record” have frequently appeared in the same sentence as “Freeman” and “AGA”, when discussing that campaign. But brilliant? Yes. Throughout the AGA’s steady efforts, the central message was not that PASPA was unfair to casinos, or unfair to states, or unfair to players, but that the existence of PAPSA creates a scenario that lead normally honest people to engage in an illegal activity – an activity which is totally unregulated, usually run by criminals, guarantees no consumer protections, and where the proceeds support an assortment of questionable activities, including terrorism.
About the same time as the AGA was getting its sports betting efforts together, they launched a separate anti-illegal gambling campaign (at least it appeared separate at the time). As part of that, they asked CDC Gaming Reports to consider running more illegal gambling-related articles on our site and in our reports, something we generally avoided. In truth I thought it was a rather simple-minded, positive-publicity effort (and maybe it was at first), but it became the basis for Freeman’s knock-out-PASPA punches: the annual Super Bowl and March Madness crusades by the AGA, publicizing how the amount of illegal gambling dwarfs legal gaming for each of these events.
More truth be told: I always questioned the methodology of these annual “studies.” They are extrapolated using decades-old data, and may include office/friends/party pools where there is no illegal house take. I even questioned running the same “updated study” every year. Thankfully I was a voice in the wilderness that was ignored. These AGA “illegal sports gambling” projections were cited every year, including this year, by dozens, if not hundreds of major media outlets. They became to the Super Bowl and March Madness what celebrity predictions are to the Oscars. It was spin of the finest kind – simple and engaging. And it thoroughly sold the anti-PASPA argument.
These efforts were not initially created by the AGA to impress SCOTUS, but Congress. As with most successful efforts, political, military, or otherwise, it’s often the case that little of what happens matches what was projected in advance. As my father would say about successful sales campaigns, “You may get what you want but not the way you planned. This is not a lucky coincidence – the hard work did pay off.” Did AGA-generated publicity and other efforts lead to SCOTUS taking the case? We may never know for sure, but Washington D.C. lawyers, law clerks, and Supreme Court justices follow sports, listen to the TV, and read newspapers, website blogs, and even, occasionally, an amicus brief, and almost certainly were aware of the AGA message: Christie v. NCAA is important above and beyond legal gaming or even states’ rights, because it’s about a law that creates and supports illegal activities.
After tomorrow’s events, the next thing is to wait for the third important day, when the decision comes out, expected sometime in the spring of 2018. Most legal experts believe the court will throw out PASPA; if so, then the AGA will begin a state-by-state effort for sports betting legalization, implementation and regulation. Alternatively, the court might side with the NCAA, as the lower courts have, and essentially send the issue back to Congress. That would be an anti-regulation Congress looking for ways to help states increase revenues without using federal dollars or raising taxes (the latter being the classic reason for expanding gambling). Either way, the American Gaming Association will have to formulate new plans, but wherever the journey will lead them, they are well prepared.
Tomorrow, December 4, 2017, is a special day for the entire American gaming industry, but especially for Geoff Freeman and his AGA team. It would not have happened without them.
Jeffrey Compton is the publisher of CDC Gaming Reports
