'Whose' Game Is It? Sports-Wagering and Intellectual Property

Abstract

In 1992, Congress passed the Professional and Amateur Sports Protection Act (PASPA), a statute designed to prevent the further spread of state-sponsored sports-wagering. The statute’s language has the effect of granting a property right to sports leagues, implicating the Constitution’s Intellectual Property Clause. The Intellectual Property Clause grants Congress the authority: “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

In 2012, Major League Baseball (MLB), the National Football League (NFL), the National Basketball Association (NBA), the National Hockey League (NHL), and the National Collegiate Athletic Association (NCAA) (collectively “Sports Leagues”) brought suit against New Jersey Governor Chris Christie seeking an injunction under PASPA to prevent the state from offering regulated sports-wagering. The Department of Justice (DOJ) eventually joined the Sports Leagues as an intervenor. The matter was eventually appealed to the Third Circuit where a divided court ruled 2-1 in favor of the Sports Leagues.

PASPA’s section 3703 — labeled “Injunctions” — includes the word “whose,” which confers the ownership rights of “competitive game[s]” to the Sports Leagues for enforcement purposes under the statute. This semantic choice, with the determinant word “whose,” confers ownership rights of “competitive game[s]” to the Sports Leagues, as well as other professional or amateur sports organizations, deputizing them to enforce the law in the same manner as the DOJ.

PASPA violates the Intellectual Property Clause for two distinct reasons. First, the express grant of perpetual ownership rights with characteristics mimicking both patents and copyrights runs counter to various prongs of the Intellectual Property Clause, including the “limited Times,” “Authors and Inventors,” and “Writings and Discoveries” requirements. Second, conferring perpetual property rights to states exempted under PASPA’s grandfathering provision violates the Intellectual Property Clause’s “limited Times” requirement. The focus of this paper is on the former.

Keywords: Constitutional Law, Intellectual Property, Copyright, Patent, Policy, Injunction, Enforcement, Legislative Intent, Preemption, Sports Law, Gambling, Sport Betting, Wagering, PASPA, MLB, NBA, NCAA, NFL, NHL

JEL Classification: K00, K10, K11, K19, K20, K23, K29, K30, K39, K40, K49, L50, L59, L80, L83, L89, O34