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Sports Gambling Regulation and Your Grandfather (Clause)

8 Pages Posted: 14 Aug 2014  

John T. Holden

Florida State University

Anastasios Kaburakis

Saint Louis University - John Cook School of Business

Ryan M. Rodenberg

Florida State University - College of Education; Florida State University - College of Law

Date Written: August 6, 2014

Abstract

The Professional and Amateur Sports Protection Act ("PASPA") was a piece of federal legislation passed in 1992. The statute granted Major League Baseball, the National Football League, the National Basketball Association, the National Hockey League, and the National Collegiate Athletic Association the ability to enforce the statute alongside the Department of Justice ("DOJ"). PASPA deputized these sports leagues and the DOJ to file for injunctive relief to stop the spread of state-sponsored sports gambling in states not offering a comparable scheme at the time of PASPA's enactment.

PASPA’s grandfathering clause (by which Nevada, primarily, and three other states are allowed to regulate gambling on sports) is an oddity. There are at least three scenarios that may render PASPA’s perpetual grandfathering clause invalid. First, by granting the favored states a de facto intellectual property right to continue their sports gambling schemes indefinitely, PASPA runs afoul of the Intellectual Property Clause’s "limited Times" provision. Second, PASPA is suspect because its grandfathering clause is derived from unclear legislative intent and purpose. In stark contrast to the Third Circuit’s decision in NCAA v. Governor of N.J., 730 F.3d 208 (3d Cir. 2013), Justice Stevens, in Greater New Orleans Broadcasting Assn., Inc. v. United States, 527 U.S. 173 (1999), noted PASPA’s congressional purposes are obscured. But the Third Circuit ignored Justice Stevens. Finally, the statutory exemptions for the favored states may be impermissible because there is no recognizable legislative precedent for perpetually allowing purportedly undesirable behavior in certain jurisdictions, but not others.

Keywords: Constitutional Law, Intellectual Property, Grandfathering, Policy, Injunction, Enforcement, Legislative Intent, Purpose, Containment, Scope of Regulatory Framework, Sports Law, Gambling, Sport Betting, Wagering, PASPA

JEL Classification: K00, K10, K19, K20, K23, K29, K30, K39, K40, K49, L50, L59, L80, L83, L89

Suggested Citation

Holden, John T. and Kaburakis, Anastasios and Rodenberg, Ryan M., Sports Gambling Regulation and Your Grandfather (Clause) (August 6, 2014). Stanford Law & Policy Review, Vol. 26, No. 1, 2014. Available at SSRN: https://ssrn.com/abstract=2477365

John T. Holden (Contact Author)

Florida State University ( email )

Tallahasse, FL 32306
United States

Anastasios Kaburakis

Saint Louis University - John Cook School of Business ( email )

3674 Lindell Blvd 407
St. Louis, MO 63108-3397
United States

Ryan M. Rodenberg

Florida State University - College of Education ( email )

Tully Gym 1002
1114 W. Call Street
Tallahassee, FL 32306-4450
United States
850-645-9535 (Phone)
850-644-0974 (Fax)

HOME PAGE: http://education.fsu.edu/faculty-and-staff/dr-ryan-rodenberg

Florida State University - College of Law ( email )

425 W. Jefferson Street
Tallahassee, FL 32306
United States
850-645-9535 (Phone)
850-644-0974 (Fax)

HOME PAGE: http://education.fsu.edu/faculty-and-staff/dr-ryan-rodenberg

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