On September 29, the NCAA and the professional sports leagues filed their opposition to New Jersey's effort to clarify the sports betting injunction in place. New Jersey has argued that the sports wagering law operated as a repeal on New Jersey's criminal prohibitions against sports betting and that PASPA only prohibits the state from regulating sports betting, not from allowing it to occur in an unregulated environment.
The Leagues argue that the plain language of the Sports Wagering Law authorizes casinos and racetracks to offer sports betting and cannot be characterized as a mere repeal of prohibitions on sports betting. The Leagues argue that the language in the statute is unambiguous in that it says that a casino or racetrack "may operate," and this language cannot be construed as a repealer but rather must be construed as an express authorization prohibited by PASPA. Moreover, the Leagues argue that the state has repeatedly argued that the Sports Wagering Law sought to authorize sports gambling - not repeal a prohibition on it.
The Leagues also argue that even if this language is a repealer of the prohibitions on sports betting, it cannot be severed from the rest of the statute because the purpose of the Sports Wagering Law was to authorize regulated sports betting and that severing the statute would amount to a complete rewrite of the statute rather than mere severing.
Finally, the Leagues argue that virtually every detail of the operation of casinos and racetracks is heavily regulated by the state. The Leagues argue that the fact that the state so heavily regulates these entities means that sports betting conducted in those entities would be regulated in violation of PASPA. The Leagues also note that both Monmouth Park and the Meadowlands are state-owned and that sports betting there would be "directly" sponsored by the state, thus violating PASPA in any case.
Interestingly, the Leagues' brief notes that the Leagues planned to seek a temporary restraining order, but received assurances from every Atlantic City casino and New Jersey racetrack that they would wait 45 days before implementing sports betting.
The State's reply is due on Friday, October 10. It remains to be seen whether the DOJ will file opposition papers today as well.