Even Odds: High Court Might Let States Decide on Sports Betting

I passed through the turnstile and onto the mid-level concourse in Carver Arena, the home court for the basketball team of Bradley University, from which I’m happy to hold a bachelor’s degree. I had never before been to a Bradley game. Bradley was and is a school of around 5,000 students, so I’d expected to find maybe a few hundred people in the crowd. It took me some time, as I beheld my cavernous surroundings, to scrape my chin off the floor. Ten thousand strong rose to the rafters, and they produced a din, even before the opening tip, that was deafening.

I hadn’t accounted for this because I hadn’t known about the storied history of Bradley basketball, and also because I hadn’t realized that Bradley’s home — Peoria, Illinois — was a basketball hotbed unlike any other in the United States (“the land of 10,000 coaches,” as one Bradley coach put it). I was hooked, and spent the next few years familiarizing myself with all the lore. I learned names like Chet Walker and Paul Unruh and David Thirdkill, and I was actually there for Hersey Hawkins’s junior and senior seasons. And then there was one name that was still said in a hush around campus, even more than 30 years after his departure: Gene “Squeaky” Melchiorre.

To this day, there is a debate at Bradley about whether to induct Squeaky, one of the greatest college basketball players of his generation (his last season at Bradley ended in 1951), into the Bradley Hall of Fame. That’s because, great as he was, he was implicated in a point-shaving scandal — a scandal involving bribes to Squeaky and some of his teammates in return for which they held down the score against some Bradley opponents.

So the concern about the purity of team sports has been around for a long while (just ask Pete Rose), and for many of us, the scandals around professional and amateur (including college) athletics have hit close to home.

It wasn’t until 1992 that the U.S. Congress took up the matter. That year, Congress enacted the Professional and Amateur Sports Protection Act (PASPA), which prohibited states from enacting their own laws licensing or permitting betting on professional and amateur sports teams (it’s important to distinguish between betting on sports teams and other kinds of gambling, like the kind that goes on at casinos and tracks).

Constitutionally, PASPA is a sloppy law. Congress may not pass laws about whatever it wants to; Article I of the Constitution, which creates and empowers Congress, provides a list of things Congress may do (like raise armies and navies, coin money, lay and collect taxes, etc.). As I tell students in Constitutional Law I, the rule is basically this: if it’s not on the list, it’s not on the list. And if it’s not on the list, then it’s up to states to regulate — unless it’s the kind of personal decision-making that is reserved to the people (per the 10th Amendment).

Two things that are on the list would be 1) regulating interstate commerce and 2) spending. So Congress could theoretically have regulated sports betting if it found that sports betting had a significant impact on interstate commerce; it certainly could have banned the use of interstate cables, lines, or other channels for betting on sports. Under its spending power, Congress also could have bribed states to enact their own legislation banning betting on pro or amateur sports. Believe it or not, the Supreme Court sometimes allows that kind of bribery, as when Congress passed a law in 1984 withholding 5 percent of a state’s federal highway funding if the state didn’t have a law making the drinking age 21. As long as Congress doesn’t go too far in coercing states, it can provide inducements for states to go along with Congress’s preferred policies.

Here’s the problem: instead of regulating betting directly under the Commerce Clause or bribing states under the Spending Clause, PASPA flat-out commands states, through their legislatures, that they may not license or allow betting on professional or amateur sports teams. This is a problem for the same reason that Congress coercing (rather than encouraging) states under the Spending Clause is a problem: states, in our constitutional system, are sovereign.

So the U.S. Congress telling a state legislature what laws to pass (or not to pass) would be like the British Parliament telling the U.S. Congress what laws to pass (or not to pass). If the U.K. and the U.S. are both sovereigns, then that can’t happen. In the same vein, the U.S., a sovereign, may not simply command Florida, or any other sovereign state, to legislate in a certain way.

At least that’s what several states (with New Jersey in the lead) are arguing. We await a Supreme Court decision, which should come soon.

brendan_beeryBlog author, WMU-Cooley Professor Brendan Beery is a summa cum laude graduate of the law school and a frequent legal expert in the media. He teaches Constitutional Law, Criminal Law, and Criminal Procedure at the law school at its Tampa Bay campus.

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