COLLEGE SPORTS BETTING
Introduction The striking down of the Professional and Amateur Sports Protection Act (“PASPA”) 1 in 2018 may feel like ancient history, but it is worth noting that the NCAA was one of the main protagonists in this landmark decision. When the United States Supreme Court ruled against them in Murphy v. NCAA , 2 it fired the starting gun on the explosion in sports betting that we have witnessed in the subsequent years. PASPA was a federal law, passed in 1991 that made it unlawful for a state to “sponsor, operate, advertise, promote, license, or authorize by law or compact” a “lottery, sweepstakes, or other betting, gambling, or wagering scheme based, directly or indirectly (through the use of geographical references or otherwise), on one or more competitive games in which amateur or professional athletes participate.” The prohibition applied to all but four US states: Nevada, Oregon, Delaware, and Montana. New Jersey was also on the list of states permitted to legalize sports betting, but it failed to pass legislation in time. Several years later in 2010, New Jersey was successful in winning senate approval for a referendum and its electorate voted to legalize sports betting. The legislature enacted, and its Governor signed a law permitting sports gambling. PASPA allowed the U.S. Attorney General or a professional or amateur team to sue and enforce a sports betting ban 3 and, in the years from 2010 to the verdict of the Supreme Court in 2018, five sports leagues banded together and sued to enforce a ban under PASPA. By the time the case got to the Supreme Court, the question was one of federalism—who decides whether sports betting is legal, the federal government or the individual states? The Court held that PASPA violated the anti-commandeering principle established in the U.S. Constitution, meaning the federal government had co-opted state legislatures to carry 1 28 U.S.C. § 3702 2 584 U.S. 453, 458 (2018). 3 28 USC § 3703. 4 Murphy , 584 U.S. at 458. 5 https://www.americangaming.org/research/state-gaming-map/
out the federal government’s agenda. Therefore, the decision on whether to permit or prohibit sports betting post-2018 was left to the discretion of each individual state legislature. As the Court in Murphy observed, “Americans have never been of one mind about gambling, and attitudes have swung back and forth.” 4 In the subsequent years, legislatures have tried, succeeded, and failed to legalize sports betting subject to myriad requirements. Currently, 38 states and the District of Columbia, have opted to legalize sports betting including betting on college sports. Depending on the location, the precise contours of the sports betting enterprise are varied and particularized. 5 This article focuses on a niche application of sports betting regulations: the intersection of college sports and prop betting. College versus professional sports. College sports invoke a host of paternalistic considerations absent from professional sports. At bottom, college athletes are students under the care and supervision of their schools. In addition to sports, they attend classes, sometimes live in dorms, and answer to a student code of conduct. While schools do not always live up to these expectations of the student experience, 6 college sports remain a separate and distinct enterprise that is focused on educating students in addition to athletic performance. Up until June 2021, college athletes could not earn any financial compensation for their participation in school athletics. This is despite the fact that college sport garners US$ billions in TV rights, gate receipts and other commercial income. In NCAA v. Alston , the United States Supreme Court acknowledged “American colleges and universities have had a complicated relationship with sports and money.” 7 In Alston, current and former college level athletes sued the NCAA for violations of
6 See generally Jacob Abrahamian, The Forgotten “Student” in “Student–Athlete”: Why a New Cause of Action Is Needed To Remind Universities that Education Comes First, Ariz. State L.J. (2021), available at https://arizonastatelawjournal.org/wp-content/uploads/2021/02/05-Abrahamian. pdf 7 Nat’l Collegiate Athletic Ass’n v. Alston , 594 U.S. 69, 74 (2021).
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IMGL MAGAZINE | SEPTEMBER 2024
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