Decision allows states, tribal jurisdictions to develop sports gaming
Q: The Supreme Court recently eliminated the largest federal obstacle to the expansion of sports betting across the nation by finding the federal law banning sports betting unconstitutional. What are the details of the decision?
A: Murphy v. NCAA involved a challenge to the Professional and Amateur Sports Protection Act. The act made it unlawful for any state “to sponsor, operate, advertise, promote, license or authorize by law or compact ...” betting and gambling on competitive sporting events or an athlete’s performance in the same. After New Jersey passed a law repealing a portion of its prior ban on sports gaming, the NCAA and others filed a federal case to challenge the New Jersey law, claiming it violated the Professional and Amateur Sports Protection Act. New Jersey countered with an argument that the act violates the U.S. Constitution by invading the power left to the states by the 10th Amendment. Specifically, New Jersey argued the act violated the “anti-commandeering doctrine” that prevents Congress from requiring state legislatures to enact or enforce a federal regulatory scheme. The case made its way to the Supreme Court, and the court agreed with New Jersey, holding that the portion of the Professional and Amateur Sports Protection Act at issue was unconstitutional. It also found that it couldn’t separate the offending portion of the statute from the remainder. That knocked out the entire statute at once.
Q: What does the decision mean for Oklahoma as well as tribal nations?
A: This decision allows states and tribal jurisdictions to now legalize and develop sports gaming. The court even made a point to tell the states that, unless and until Congress starts regulating sports gaming, “each State is free to act on its own.” Yet, this directive to take action leads to many questions. First and foremost in Oklahoma, where do the rights of tribal nations, also sovereigns with stakes and experience in gaming, fit in this blend of sovereignty? The existing gaming regime in Oklahoma requires engagement with tribal nations. Here, tribes provide the majority of the gaming operations and regulation pursuant to a compact with the State and federal laws such as the Indian Gaming Regulatory Act. The compact grants tribes “substantial exclusivity” to operate certain types of gaming in exchange for certain fees. Those fees remain in place as long as Oklahoma doesn’t change its laws to permit the operation of any additional form of gaming by Oklahoma Horse Racing Commission licensees or any additional form of electronic or machine gaming within Oklahoma. Any development of sports gaming in this jurisdiction needs to consider and work with this framework. Q: What are next steps for developing sports betting here? A: Next steps for both the state and the tribes to some extent coincide. Both need to consider how to address sports betting in state statutes to bring it within the framework of authorized gaming. Aside from addressing state law, tribal governments and their respective gaming entities also need to review tribal law (such as gaming ordinances and regulations) to identify necessary updates to incorporate sports betting. The Murphy decision guarantees we will see more sports betting legislation on the horizon. Tribes need to prepare to weigh in on their preferred type of action if they want to contribute to the development of sports betting within the state.