Sports Gambling Regulation and Your Grandfather (Clause)

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