New Solicitor General could be key in New Jersey sports betting saga

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Renowned sports law attorney Marc Edelman joined me on a panel at Yeshiva University’s Benjamin N. Cardozo School of Law on Thursday on The Future of Gambling in Sports.

One of the topics was the fact that the U.S. Supreme Court in January asked the U.S. Solicitor General to review the merits of the long-running New Jersey Sports betting case.

Recent research has showed that in 20 consecutive cases – 10 recommendations by the Solicitor General and 10 non-recommendations – the top court followed that lead in every case. Even looking back to a 2009 report, that found SCOTUS following such guidance 80 percent of the time (to take the case, not necessarily overturn it).

That means that a positive nod from the new “10th Justice” could well send this case to the very top.

Noel Francisco will be that man, if Congress confirms him.

So step one is that confirmation – and we know from past experience that personal indiscretions, purported conflicts of interest, and even the legal status of one’s housekeeper can derail such confirmations. Failing that, Francisco would likely ultimately be confirmed – even if along party lines, to a great extent.

Sen. Ted Cruz said on his website that “Noel and I have been close friends for over two decades, and I know him personally to be a brilliant lawyer and a principled conservative.”

That sounds like someone who might question Congress’s 1992 decision to prevent states from spreading the growth of sports betting beyond Nevada (and limited permissions in three other states). Horse racing, jai alai, casinos, the lottery, and all sorts of gambling issues are up to the states. Is it kosher to make an exception for sports betting?

Edelman cautioned the law school students that even if SCOTUS takes the case, they will be looking dispassionately at the details of the law – not endorsing or forbidding sports betting per se.

It’s a good reminder, and I’m not an attorney. But at some point, there’s a real possibility that a certain former Atlantic City casino owner who became President may have selected a Solicitor General who recommends the case - as well as a 9th Supreme Court Justice (likely Neil Gorsuch) who might cast the tiebreaking vote striking down the Professional and Amateur Sports Protection Act of 1992. That vote, remarkably, would bring sports betting to some of the very casinos once owned by Donald Trump.

(Meanwhile, I’d also like to thank attorneys Harris Peskin and Irwin Kishner for joining me as well on what proved to be one of the best panels I can remember being a part of, and especially our moderator, Yahoo! Finance sports business writer Dan Roberts.)

http://www.northjersey.com/story/news/business/meadowlands-matters/2017/03/10/new-solicitor-general-could-key-new-jersey-sports-betting-saga/99020992/