PASPA is Unconstitutional

The Professional and Amateur Sports Protection Act of 1992 (PASPA) is no more.  By a 7-2 vote, the US Supreme Court declared the act unconstitutional; it is no more.  I am not going to pretend to be able to give you a learned interpretation of the court’s decision here, but I will say that I am heartily in favor of getting PASPA off the books.

This legislation was a bad idea when it first appeared in the mind of whomever thought to make it the law of the land.  The fundamental concept had two major flaws:

1. One premise is that gambling is bad news for sporting events bringing a corps of shady ne’er-do-wells into close contact with athletes whose focus needs to be striving for victory and excellence.  That sounds awfully good, but it does not stand the test of logic.  The fact of the matter is that the sportsbooks – the guys who enable gamblers to “get down on games” are the ones who have alerted the authorities in most of the cases where there was real or attempted skullduggery.  The reason is simple; the sportsbooks do not like to be on the losing side of things and they are highly motivated to point out betting patterns that might indicate foul play.
2. That first premise leads ever so obviously to the conclusion that minimizing gambling opportunities will minimize gamblers getting close to athletes and possibly encouraging the athletes to shave points or throw games.  This second premise is galactic naivete.  If PASPA were effective, there would be no sports betting in any of 46 States because PASPA only allowed 4 States to do sports betting for the last 26 years. No one with two neurons close enough to play tennis with one another can possibly believe that is the case.

PASPA was flawed at the core and then proceeded to be completely ineffective on top of that.  I don’t think that is the sort of legislative exacta that the Congress would like to trumpet as one of its successes.

The NCAA and the four major sports leagues all opposed the action taken by the State of New Jersey that led to the overturning of PASPA – – until it began to look as if PASPA was a sinking ship and then the four pro leagues scrambled to figure out how to share in the revenue bonanza that could come from widespread sports wagering.  The latest twist here is that the unions representing players in the various pro sports have signaled that they want in on the cavalcade of cash.  Putting this in terms you might recall from The Godfather, everyone wants to dip his beak in the pool here and the open questions are how big a dip will each beak want or get.

In the opinion of the court, it begins by saying:

“Americans have never been of one mind about gambling, and attitudes have swung back and forth.”

I believe that Americans have never been of one mind about lots and lots of different social issues and behaviors.  There was a time when it was illegal to sell alcohol in the US; that worked about as effectively as PASPA has worked.  There was a time when it was legally acceptable to own other human beings as slaves; the country fought a Civil War in the process of adjusting that social issue.  Wavering opinions – even wavering majority opinions – on social issues is not something that should be part of a Constitutional determination.  Even if 80% of the populace thinks that the protections of the First Amendment are outdated, that should not be part of a Supreme Court decision on such matters.  [Aside:  In such a situation, that vast majority of opinion might embolden the Congress to pass and send to the States a new amendment to the Constitution limiting something in the First Amendment.  If ratified, then such limitations would be properly used and enforced by the Supreme Court, but wavering public opinion is not germane to Constitutional decisions.]

Those States that want to benefit from this ruling in the short term will need to get their act together in time for the start of the college football/NFL season.  Sportsbooks take action on baseball and golf and the like, but the big money handles are for football games and then for March Madness.  It will be interesting to see how the major players in this new regulatory environment come together – or fail to come together.  These times call for these folks to reach accommodations one with the others:

• State Legislatures
• State Regulators
• Hotel and casino execs
• Law enforcement officials
• Various professional sports leagues
• The NCAA – and perhaps the football conferences independently

One other thought…  PASPA may not have passed Constitutional muster here, but that does not mean that Congress may take another shot at regulating sports wagering.  The Supreme Court left that door wide open saying that Congress had the authority to regulate gambling but in the absence of doing so, it did not have the right to tell each of the individual States what they had to do.  My guess is a Congressional push to repackage much of PASPA’s misguided intent; I hope it fails.

Finally, speaking about linkages between bad guys and organized crime and the sports world, consider this comment from Scott Ostler in the SF Chronicle:

“The IOC is threatening to remove boxing from the 2020 Olympics due to corruption and links with organized crime. Doesn’t the IOC understand? That’s what boxing is. Take away that fun stuff and all you have left is two guys punching each other’s ass in the face.”

But don’t get me wrong, I love sports………