Michael Weiner Scholarship for Labor Studies

Major League baseball players are honoring the life of former MLBPA Executive Director Michael Weiner by creating a scholarship program to encourage the pursuit of a graduate-level degree in labor studies.

Beginning January 2015, the Players Trust will annually award up to five $10,000 scholarships to individuals dedicated to a career supporting workers’ rights.

To learn more and apply, please visit www.playerstrust.org or contact Hillary Caffarone at (212) 826-0809.

Applications must be submitted no later than Monday, November 10th 2014.

The Fallacy Behind New Jersey's Sports Betting Strategy

If ever there were a sports law case that had the proverbial "nine lives," it would have to be New Jersey's ongoing quest to legalize sports betting. Following his veto of two bills that would have partially repealed the state-law prohibition against sports betting, which itself was a response to the Supreme Court's refusal to hear New Jersey's constitutional challenge to the Professional and Amateur Sports Protection Act ("PASPA"), New Jersey Governor Chris Christie last week embarked on a bold new legal strategy designed to bring sports betting to the Garden State.

First, the New Jersey Attorney General issued Formal Opinion 1-2014 which concluded that casinos and racetracks would not be committing a criminal offense under New Jersey law if they were to accept wagers on professional and college sporting events (excluding those collegiate games involving New Jersey colleges or taking place in New Jersey). Second, the Attorney General (joined by Governor Christie) filed a motion with U.S. District Judge Michael A. Shipp, the federal judge who permanently enjoined New Jersey from implementing its sports wagering law in February 2013 (that decision was later upheld on appeal by the Third Circuit). The new motion seeks a "clarification" of the injunction to explicitly recognize that New Jersey is not obligated to maintain the criminal prohibitions against sports wagering on its books and, further, that the "surviving portions" of the earlier legislation (which Judge Shipp held was preempted by PASPA) already "effect[ed] a repeal of New Jersey's prohibition of sports wagering in casinos and racetracks" without the need for further action. Alternatively, the motion seeks to "modify" the injunction to reflect the Third Circuit's explicit recognition that a State "may repeal its sports wagering ban" or "keep a complete ban on sports gambling" and "decide what the exact contours of the prohibition will be."

You might be asking yourself the following question: "Didn't New Jersey just lose in federal court?" While New Jersey's efforts to "regulate" sports wagering through a statutory licensing regime were unsuccessful because Judge Shipp and, later, the Third Circuit (by a 2-1 margin), concluded that the statute was preempted by PASPA, New Jersey is zeroing in on language in the Third Circuit opinion which purports to allow it to "repeal" its state-law prohibition against sports betting without violating PASPA. The pertinent language in the Third Circuit opinion reads:

[W]e do not read PASPA to prohibit New Jersey from repealing its ban on sports wagering. . . . [U]nder PASPA, on the one hand, a state may repeal its sports betting ban, a move that will result in the expenditure of no resources or effort by any official. On the other hand, a state may choose to keep a complete ban on sports gambling, but it is left up to each state to decide how much of a law enforcement priority it wants to make of sports gambling, or what the exact contours of the prohibition will be. We agree that these are not easy choices. And it is perhaps true (although there is no textual or other support for the idea) that Congress may have suspected that most states would choose to keep an actual prohibition on sports gambling on the books, rather than permit that activity to go on unregulated. But the fact that Congress gave states a hard or tempting choice does not mean that they were given no choice at all, or that the choices or otherwise unconstitutional.

National Collegiate Athletic Ass'n v. Christie, 730 F.3d 208, 232-33 (3d Cir. 2013)

Seizing upon this language, the New Jersey Senate and State Assembly introduced legislation in June that would have repealed the state-law prohibition against sports wagering, but only for the benefit of casinos and racetracks. Governor Christie vetoed these bills on August 8, 2014, believing them to be a blatant "end-run" around PASPA that would not have survived judicial scrutiny. Governor Christie's motion tries a more creative approach: it argues that the state-law prohibitions against sports wagering have already been repealed by virtue of the 2012 legislation that was found to be preempted by PASPA. You might ask: "How can New Jersey still be relying on a state law that was struck down by the federal courts?" Simple. By arguing that the portion of the law providing that a casino or racetrack "may operate a sports pool" is "severable" from the portion of the law authorizing the state to "license" sports betting (the part found to be in express conflict with PASPA). Pointing to the statute's "severability clause," Governor Christie's motion posits that "the surviving portions of the Sports Wagering Act effect a repeal of New Jersey's prohibition of sports wagering in casinos and racetracks. . . ." (Governor Christie's Motion, at p. 5)

1.   New Jersey's Novel "Repeal" Theory is Unlikely to Succeed

Despite the optimism expressed on many fronts, New Jersey's gambit is unlikely to succeed. To begin with, New Jersey's sports wagering law (N.J.S.A. 5:12A-1 et seq.) did not expressly repeal the criminal prohibition against sports wagering in that state. The 2012 legislation does not even refer to the state-law prohibitions that would presumably cover illegal sports betting -- N.J.S.A. 2C:37-2 ["Promoting Gambling"] and N.J.S.A. 2A:40-1 ["Gaming Transactions Unlawful"]. Similarly, neither of these criminal statutes exempts sports betting at casinos and racetracks nor contains any reference to the 2012 legislation. It would have required only a modicum of effort to amend one or both of these statutes to read: "Nothing in this Chapter shall be construed to prohibit bets or wagers placed upon the outcome of any professional or collegiate sporting event in accordance with the provisions of N.J.S.A. 5:12A-1 et seq." It is likewise telling that the 2012 legislation does not contain the common introductory phrase -- "notwithstanding any law, rule or regulation to the contrary" -- in the allegedly "surviving" portion of the statute that provides that a casino or racetrack "may operate a sports pool." This is further evidence that the legislature did not intend to repeal either of the state-law prohibitions when it enacted the sports wagering law.

While statutes can be repealed "by implication," the New Jersey Supreme Court has cautioned that "there is a strong presumption in the law against [an] implied repealer and every reasonable construction should be applied to avoid such a finding." New Jersey Ass'n of School Adm'rs v. Schundler, 211 N.J. 535, 555-56, 49 A.3d 860, 872 (2012) (citing In re Comm'r of Ins.'rs Issuance of Orders A-92-189 & A-92-212, 137 N.J. 93, 99, 644 A.2d 576, 579 (1994)). To overcome that strong presumption, a high threshold must be vaulted: "'a repeal by implication requires clear and compelling evidence of legislative intent, and such intent must be free from reasonable doubt.'" Id.

New Jersey will not be able to overcome this presumption. Recent actions taken by New Jersey legislative officials are completely antithetical to any notion that an "implied repeal" has occurred. For example, in the Supreme Court petition filed by New Jersey Senate President Stephen Sweeney and New Jersey General Assembly Speaker Vincent Prieto in February 2014, those legislative officials conceded that "the citizens of New Jersey have not expressed support for allowing unregulated sports wagering." This is an acknowledgement by New Jersey's two highest-ranking legislative officers that, as of February 2014, the criminal prohibition against sports wagering had not been repealed. This directly contradicts the present position advanced by Governor Christie and Attorney General Hoffman in their motion. To be sure, at no point in the nearly two years of federal court litigation did New Jersey take the position that the criminal prohibition against sports wagering had been "repealed" by virtue of the 2012 legislation. There are no such statements in any of New Jersey's federal court filings--until now, that is.

Ironically, New Jersey points to statements made by its adversaries in the federal case to support its novel "implied repeal" argument. In Formal Opinion 1-2014, Attorney General Hoffman maintains that the Third Circuit "accepted" the position of the plaintiffs in the case, which he characterizes as having acknowledged that New Jersey repealed its prohibitions against sports wagering. (AG Opinion, at p. 2 [blending the DOJ's and leagues' briefs to read that "'nothing in [PASPA] requires New Jersey to maintain or enforce its sports wagering prohibitions, and, indeed, that New Jersey's 'repeal of its state-law prohibition on the authorization of sports wagering' itself was 'in compliance with PASPA.'"). But a close reading of the appellate briefs paints a far different picture. In his brief, United States Attorney Paul Fishman actually stated that "nothing in [PASPA] requires to New Jersey to maintain or enforce its sports wagering prohibitions," noting that "the Sports Leagues have not brought suit to enjoin New Jersey from repealing those pre-existing sports-gambling prohibitions," which he describes as a "hypothetical scenario."

Indeed, the Third Circuit opinion itself makes clear that any repeal of New Jersey's state-law prohibition against sports wagering would be prospective in nature. In rejecting New Jersey's argument that PASPA improperly commandeers the States to maintain their criminal prohibitions against sports wagering, the Third Circuit majority stated that "we do not read PASPA to prohibit New Jersey from repealing its ban on sports wagering." National Collegiate Athletic Ass'n v. Christie, 730 F.3d 208, 232 (3d Cir.2013). Note the use of the "future tense" rather than the "past tense". This runs counter to any argument by New Jersey that the repeal had already occurred. Although the New Jersey Attorney General quotes from the federal government's answer brief before the Third Circuit, he overlooks a later Supreme Court filing made by the U.S. Solicitor General which states that PASPA "does not even obligate New Jersey to leave in place the state-law prohibitions against sports gambling that it had chosen to adopt prior to PASPA's enactment. To the contrary, New Jersey is free to repeal those prohibitions in whole or in part."

Likewise, at the June 26, 2013 oral argument before the Third Circuit, Paul Fishman (the United States Attorney for the District of New Jersey) conceded that New Jersey "could" repeal its prohibition against sports betting without violating PASPA, but stated that the reason "it hasn't been done" yet is because "it's a really, really bad idea":

MR. FISHMAN:  Mr. Olson [counsel for Governor Christie] said they can't change the law, they have to enforce the law on the books, they have to keep it illegal. None of that is true. . . . It is up to the State of New Jersey to determine for itself the extent to which it will or will not enforce that law. . . . 

THE COURT:  So New Jersey could repeal its ban on wagering on sporting events?

MR. FISHMAN:  As a matter of law it could. It would be incredibly irresponsible. 

THE COURT:  It would not violate PASPA?   

MR. FISHMAN:  No. But the reason it hasn't been done for 20 years or a hundred years is not because of PASPA. It hasn't been done because it's a really, really, really bad idea. It's irresponsible, it would be bad policy to just allow gambling to go unfettered. . . .

(Transcript, at pp. 66-68)

Moreover, the Attorney General's opinion on this issue cannot be reconciled with the recent New Jersey legislative efforts to partially "repeal" the ban on sports wagering. On June 23, 2014, the New Jersey Senate and State Assembly introduced identical bills (S2250/ A3476) that sought to "decriminalize" sports wagering at casinos and racetracks. Each bill contained a "Statement of Intent" acknowledging that the intent of the proposed legislation was to conform current law to statements made by the U.S. Solicitor General in a filing with the Supreme Court that "PASPA does not even obligate New Jersey to leave in place the state-law prohibitions against sports gambling that it had chosen to adopt prior to PASPA's enactment. To the contrary, New Jersey is free to repeal those prohibitions in whole or in part." And this week brought the announcement by New Jersey State Senator Ray Lesniak (D-Union) that he will soon introduce a bill that would "repeal" all prohibitions concerning sports wagering "at casinos or gambling houses in Atlantic City and at current running and harness horse racetracks in this State." This begs the question: if the prohibition against sports wagering had already been repealed by the 2012 legislation, then why even bother with the new legislation? These recent actions completely belie New Jersey's present position.

2.   Is the New Jersey Sports Wagering Law "Severable"?

I also question whether any portion of the 2012 legislation "survived" the federal court determination that the New Jersey sports wagering law was preempted by PASPA. This is a key hurdle for New Jersey to clear because it cannot claim that an "implied repeal" occurred without first demonstrating that the portion of the 2012 legislation purporting to repeal the prohibition against sports wagering can be "severed" from the portions of the law that were invalidated. Under the doctrine of "severability," a court can excise the invalid portions of a statute while leaving the remainder intact. This issue does not appear to have been addressed by either the district court or Third Circuit. But nothing in the two judicial opinions suggests that only "portions" of the 2012 legislation were invalidated. To the contrary, both opinions suggest that the entire law was stricken. See National Collegiate Athletic Ass'n v. Christie, 926 F. Supp. 2d 551, 577 (D.N.J. 2013) (determining that "New Jersey's Sports Wagering Law is preempted" and stating that "the enactment of the Sports Wagering Law is in violation of the Supremacy Clause."); National Collegiate Athletic Ass'n v. Christie, 730 F.3d 208, 215 (3d Cir. 2013) ("New Jersey's sports wagering law conflicts with PASPA, and, under our Constitution, must yield. We will affirm the district court's judgment.").

For such an important threshold question, New Jersey's motion gives short shrift to the "severability" analysis, relegating it to a footnote. Therefore, I will attempt to explain the legal analysis that Judge Shipp will likely undertake in ascertaining whether the portions of New Jersey sports wagering law providing that a casino or racetrack "may operate a sports pool" (the so-called "implied repeal") can be severed from the "licensing" regime of that law.

When a federal court is called upon to invalidate a state statute, the severability of the constitutional portions of the statute is governed by state law. New Jersey courts employ a "commonsense approach" to severability, holding that an invalid provision is severable if that is in keeping with the legislative intent; legislative intent is ascertained by looking to the broad purpose of the statute, the degree to which the valid and invalid provisions are intertwined with one another, and the extent to which the statute remains comprehensive and logical after the invalid provisions are excised. See New Jersey State Chamber of Commerce v. Hughey, 774 F.2d 587, 597-98 (3d Cir. 1985)

At first glance, each of these factors points decidedly away from severability. The "broad purpose" of the New Jersey sports wagering law was to enact a "licensing regime" that would shift illegal economic activity into legal channels where it could be monitored, regulated, and appropriately taxed. During the public hearings, legislators also expressed a desire "to stanch the sports-related black market flourishing within New Jersey's borders." Christie, 730 F.3d at 217. The provision allowing casinos and racetracks to "operate a sports pool" (the so-called "implied repeal") is inextricably intertwined with the requirement that such activities be licensed and regulated. Indeed, the sentence which states that casinos and racetracks "may operate a sports pool" (contained in N.J.S.A 5:12A-2(a)) also expressly conditions such entitlement "upon the approval" of the New Jersey Division of Gaming Enforcement (for casinos) and the New Jersey Racing Commission (for racetracks) and further requires such activities to be undertaken "in accordance with the provisions of this act and applicable regulations promulgated pursuant to this act." Virtually the entirety of the act addresses issues relating to "licensing" and regulation." The licensing and regulatory aspects of the law are so dominant that once they are excised (since they were held to be in conflict with PASPA), the remainder of the statute would be largely an empty shell devoid of any logical structure.

3.   Assessment and Conclusion

Given these highly inconvenient facts, New Jersey faces an uphill battle to convince Judge Shipp to clarify the existing injunction to align with the Attorney General's view that the state-law prohibition against sports wagering was repealed by the 2012 legislation and that the "surviving" portions of the 2012 legislation exempt casinos and racetracks from civil or criminal liability. The best that New Jersey can realistically hope for is that the injunction will be "modified" to incorporate the Third Circuit's explicit recognition that a State "may repeal its sports wagering ban" or "keep a complete ban on sports gambling" and "decide what the exact contours of the prohibition will be."

But that might be a pyrrhic victory at best. Let's assume that the injunction is modified to incorporate the "wiggle room" afforded by the Third Circuit majority opinion. What would a future "repeal" actually look like? If it's anything like the June legislative measure (which released only casinos and racetracks from the law's clutches), it might not be worth the effort. The selective exclusion of casinos and racetracks might still run afoul of PASPA, which provides in Section 3702(1) that a governmental entity may not authorize or promote a sports-based wagering scheme even "indirectly." The recent proposed legislation -- removing only racetracks and casinos from the criminal prohibition -- certainly appears to be an "indirect" authorization of sports betting, and will likely be challenged by the leagues and the DOJ if and when it is signed into law. The problem with such a partial repeal is that it does not seek to repeal the prohibition against sports betting in toto; rather it releases only New Jersey's casinos and racetracks from the law's clutches (and subjects everyone else to the prohibition). Such a repeal too closely mimics the prior law.

And that is precisely why Governor Christie vetoed the proposed repeal. In his August 1st letter to the New Jersey Senate, Governor Christie disparaged the June legislative measure as "a novel attempt to circumvent the Third Circuit's ruling" and "an attempt to sidestep federal law." "Ignoring federal law, rather than working to reform federal standards," the Governor added, "is counter to our democratic traditions and inconsistent with the Constitutional values I have sworn to defend and protect." Clearly, Governor Christie was troubled by the "carve out" of casinos and racetracks in the recent legislative measure and believed (wisely) that it would not pass muster with the federal courts. The June measure -- releasing only New Jersey's casinos and racetracks from the criminal prohibition against sports wagering -- struck many observers, including me, as a "back-door" authorization of sports betting.

Previewing last week's court filing, the closing paragraph of the Governor's letter reassures state legislators that he "remain[s] open to legally sound ways to let the State's casinos and racetracks offer sports wagering." It is debatable whether the Governor's latest gambit is "legally sound." Just as the June legislative measure was likely headed for defeat in the federal courts (if it had been signed into law), so too is the Governor's novel but risky legal strategy. Both avenues seek to exempt only casinos and racetracks from the criminal prohibition, a carve-out that may be viewed as an "indirect" authorization of sports betting. Is such a gambit really worth the time, knowing the likely result? Perhaps a more legally sustainable repeal strategy would be to exclude only certain geographic areas (e.g., Atlantic County) from the prohibition. The optics of such a maneuver would certainly be superior to an exemption that specifically and exclusively benefits only two classes -- casinos and racetracks. Perhaps that is elevating form over substance. But without a more reasoned approach to the "repeal" issue (and one that remains faithful to the Third Circuit opinion), we may be a long way from placing that Super Bowl bet in New Jersey.

Dark Days in the NFL

The Adrian Peterson situation, aside from coming at the worst possible moment for the NFL, raises two difficult ethical questions.

In the Sports Law context, the question is what is the right thing for the NFL and the team to do when one of its players commits a despicable act off the field. As the NFL belatedly learned in the Ray Rice affair, a wrong answer will be a public relations nightmare. Rice is certainly not the first professional athlete to be guilty of spousal abuse, though no one else ever left such a visual record. And if anything is considered an equal or greater wrong than beating your wife, it is child abuse. The facts are still out on whether Peterson is guilty of the charges leveled against him. Obviously, there is no tape. Still, it is worth the inquiry.

The answer to the ethical question, however, should not depend on the existence of a videotape or even a media or public outcry. The answer should be a function of whether the team and the league believe the player’s offense reflects such a failure of character as to be inconsistent with how each organization sees itself and its mission. It is worth discussing whether the fact that the perpetrator is a professional athlete as opposed to an associate attorney or corporate CEO should make a difference. Certainly, when an employee is the public face of an organization, termination is an appropriate response to an immoral or heinous act. The NFL’s current problems stem from its flipping from too weak a response to feigned outrage over information it had all along. Doing the right thing misses the point when it is done the wrong way.

Must the offending act also be illegal? Suppose the player cheats on his dying spouse, squanders the nest egg of his elderly parents, or refuses to donate perfectly matching bone marrow to his brother. Should the team cut its ties with such a lowlife? Any employer should have the right not to be associated with individuals it deems morally bankrupt, so long as such decisions do not depend largely on how good the player is on the field.

Adrian Peterson, of course, is not just any football player. He is one of the real superstars of the game. And he is the face of the Minnesota Vikings.

His case also raises an ethical quandary outside the sports context. When does society have the right to interfere in the parent child relationship? Parents across cultural and geographical divides have had different concepts of what kind of discipline is appropriate. We have all heard tales of kids in days gone by getting “whoopings” by a switch behind the barn. We live in a different time, if there ever really was a time when such beatings were appropriate. When such discipline results in broken bones, or cuts and bruises, or deep emotional scars, parents may have crossed the line of what is acceptable. A Texas jury will decide. So must the NFL and the Vikings.

Spot the differences, if you possibly can

Atlanta Hawks GM Danny Ferry used racist stereotypes in evaluating and describing player Luol Deng. The comments were unquestionably tasteless and offensive; they might form the basis for an employment-discrimination action, although Deng did not suffer any harm (he signed with another team and there is no indication he was dying to sign with the Hawks) and courts are often quick to dismiss remarks like these as "stray comments" that cannot form the basis for liability (as my colleague Kerri Stone has written) The remarks were audio-recorded and written in a report. Ferry has been placed on indefinite leave of absence, basically meaning he's on his way to being fired (likely as part of an ownership change). The league is holding off on punishment, probably because the team took the matter off its hands.

Isiah Thomas engaged in a pattern of sex- and gender-based harassment of a Knicks executive named Anucha Browne Sanders, for which he was found personally liable by a jury (the case settled, following a jury verdict awarding more than $ 10 million in punitive damages). He never lost his job and suffered no team- or league-imposed penalties. The league explained that it does not get involved with "civil matters," not even civil matters directly affecting the team or reflecting wrongdoing in running the team.

A former executive with the New York Mets has sued the team and the COO (the principal owner's son) for harassing and then firing her over becoming pregnant and having a child without being married and complaining about the harassment. So far, silence from MLB and the Mets, other than bland insistence that they have policies against harassment and discrimination.

So can we find anything remotely resembling consistent and appropriate responses to possibly improper or unlawful employment practices? Or are there distinctions that actually matter?

One answer is accusations are insufficient, a position I could endorse; but then the non-action by the Knicks and action by the Hawks (especially for the latter, since it is not clear the Hawks could be liable for the comments) both were inappropriate. Worse, the Hawks incident may be the least likely of the three to result in liability under federal anti-discrimination law. A more cynical answer is teams/leagues will jump to act when it comes to players and race, but do not care about sex-based discrimination against non-players. An intermediate explanation is Ferry was captured on audio and the Mets COO wasn't, which just brings us back to the issue that audio and video are overtaking our ability to judge evidence and proof. That, in turn, says some troubling things about our ability or willingness to rely on litigation to resolves disputes and determine legal rights and wrongs.

Donald Sterling Draws Ironic Judicial Assignment in Federal Lawsuit Against NBA

Long before Donald Sterling became known for making vitriolic racist comments and odd relationship choices, he had, to put it mildly, a less-than-sterling (couldn't resist that!) reputation as a landlord. As has been reported elsewhere, Sterling and his rental companies (including the Sterling Family Trust -- yes, that one!) were accused in a 2006 federal lawsuit of engaging in housing discrimination by refusing to rent properties to African-Americans, Hispanics, and families with children. Sterling and his companies settled that case in 2009 by agreeing to pay nearly $2.75 million. He also was accused in an earlier lawsuit of making discriminatory and disparaging statements about minority tenants and engaging in discriminatory housing practices, such as by refusing to accept rent from African-American tenants and then later attempting to use the tenants' supposed failure to pay rent as a basis for eviction. Court records show that Sterling settled that suit by agreeing to pay nearly $5 million in attorneys' fees to the plaintiffs.

Proving the old adage that "everything you do will come back to you" (G-rated version of "Karma can be a *****"), Donald Sterling can be none too pleased over the judicial assignment in his federal lawsuit against the NBA. In a deliciously-ironic twist, the judge assigned to that case is well-steeped in housing discrimination -- from the plaintiff's side. Sterling's federal judge is Fernando Olguin, who was appointed by President Obama in 2012. A significant portion of Judge Olguin's pre-judicial career was spent fighting housing discrimination. For six years, Judge Olguin was a name partner in the Pasadena-based law firm of Traber, Vorhees & Olguin, where he primarily represented plaintiffs in civil rights and labor cases. The law firm's website describes the firm as a "plaintiff-side" law firm that has "successfully litigated groundbreaking employment and housing discrimination cases, as well as other cases involving sexual harassment, unfair or unlawful business practices, claims of wage and overtime law violations, intentional human rights consumer rights, constitutional violations and educational rights." The firm's website adds that "[i]n fighting for and extending the right of people everywhere to be free from discrimination, we have brought cases against individuals, companies and public entities and sought to protect people from discrimination and harassment based on race, ethnicity, national original, sexual orientation, gender, familial status, disability and age." Earlier in his career, Judge Olguin served as a trial attorney in the Civil Rights Division of the United States Department of Justice from 1991 to 1994, enforcing the Fair Housing Act and the Public Accommodations Act.

To some, this may seem like poetic justice. To others, it's just the roll of the judicial dice. Predicting how a judge will rule based on his or her past experience in private practice is futile (but fun!). And, to be clear, there is no indication that Judge Olguin or the Traber & Vorhees law firm ever represented clients in litigation against Donald Sterling and/or any of his companies. That would be clear grounds for recusal. But, nonetheless, I find this particular judicial assignment to be especially ironic --and amusing-- in view of Donald Sterling's past business practices. I'm pretty certain that Donald Sterling's legal team would have preferred litigating his case in front of a judge who did not spend the vast majority of his legal career representing victims of housing discrimination. No word yet on whether Judge Olguin is also a Los Angeles Clippers season ticket holder or a team sponsor! But Judge Olguin did make news recently when Above The Law reported that he was offering a "no-pay" judicial clerkship for recent law school graduates -- one of only a few federal judges across the country who engage in this practice. All things considered, this has not been a very good year for Donald Sterling. And his luck does not appear to be improving.

NCAA Relies on O'Bannon Ruling to Support its Motion to Dismiss the Jenkins Lawsuit

Last week, 32 lawyers from 11 law firms signed a motion to dismiss the Jenkins class action.  In support of their motion, which the defendants would like to have heard before Judge Claudia Wilken, the defendants are using Judge Wilken's ruling in O'Bannon against the class in the Jenkins case.  The defendants suggest that a ruling in favor of the Jenkins class would directly conflict with Judge Wilken's decision and injunction in O'Bannon.  On page 1 of the motion, the defendants argue:

In [the O'Bannon case], this Court held that appropriate limits on the amount of compensation that student-athletes may receive while in school are lawful under Section 1 because they serve the procompetitive goals of (i) maximizing consumer demand for amateur student-athlete intercollegiate sports and (ii) integrating student-athletes into the academic communities of their schools, which in turn improves the education the schools offer.  Accordingly, this Court determined that the NCAA and its members may—consistently with federal antitrust law—agree to limit the compensation that student-athletes in Division I (“D-I”) men’s basketball and Football Bowl Subdivision (“FBS”) football may receive each year for their participation in intercollegiate athletics, provided that those limits are not less than (i) the full cost of attendance, as defined in 20 U.S.C. § 1087ll, and (ii) $5,000 per student-athlete, distributed on a deferred basis.

But in a footnote to that second sentence, the defendants say:

Nevertheless, the NCAA and its member conferences and schools respectfully disagree with the Court’s ruling in O’Bannon, including its determination that the challenged rules constituted an unreasonable restraint of trade, as well as with the Court’s determinations of (a) the appropriate cap on student-athlete compensation, (b) who—as between the Court and the NCAA—should be permitted to set that cap, and (c) the legal significance of the Supreme Court’s statements in NCAA v. Board of Regents of the University of Oklahoma, 468 U.S. 85, 101- 02 (1984), that the NCAA’s eligibility and compensation rules are procompetitive because they differentiate collegiate sports from professional sports and thus give consumers a product that might otherwise be unavailable. 

If your head is spinning right now, you're not alone.

So my first question is, does the NCAA agree with the O'Bannon ruling or not?

If the NCAA disagrees with the ruling, why is it using such ruling to support its motion to dismiss the Jenkins case?

My final question relates to how the motion to dismiss should impact an appeal of the O'Bannon ruling by the NCAA.  If the NCAA is using the O'Bannon ruling as the basis for having the Jenkins case dismissed, should the NCAA be estopped from arguing that the O'Bannon ruling is incorrect?    

BREAKING: New Jersey Seeks Modification of Sports Betting Injunction; Could Lead to Legal Sports Betting in New Jersey's Casinos and Racetracks

Earlier this morning, New Jersey officials took two actions designed to fast-track "legal" sports betting in New Jersey. First, the New Jersey Attorney General issued a Formal Opinion concluding that "sports [betting] pools operated by casinos or racetracks continue to be exempted from criminal liability under New Jersey so long as no wagering occurs on a college sport or athletic event that takes place in New Jersey or in which any New Jersey college team participates regardless of where the event takes place." As part of that Formal Opinion, the New Jersey Attorney General also issued a directive to all New Jersey Law enforcement personnel, including local prosecutors, police, and sheriffs, that prohibitions against sports wagering in casinos and racetracks would no longer be enforced. While acknowledging that New Jersey was enjoined by a federal court from "implementing" its Sports Wagering Law, the  the Attorney General reasoned that by virtue of the "severability" provision contained in that law and the Third Circuit's recognition that PASPA does not prohibit states from repealing their criminal prohibitions against sports betting, "the central provisions of the [Sports Wagering Law] that establish that casinos and racetracks may operate sports pools remain in effect and exempt such activity from criminal and civil liability."

At the same time, New Jersey also filed a motion with U.S. District Judge Michael A. Shipp, the federal judge who entered the injunction against New Jersey in February 2013. The motion seeks a "clarification" of the injunction to explicitly recognize that New Jersey is not obligated to maintain the criminal prohibitions against sports wagering on its books and that the Attorney General's opinion "permissibly recognizes" that the "surviving" portions of New Jersey's Sports Wagering Law "exempt certain sports wagering activities in casinos and racetracks from civil or criminal liability." The motion also seeks to "modify" the injunction by including new language stating that the injunction "does not prohibit, and shall not be construed to prohibit, [New Jersey public officials] from recognizing or giving effect to a provision of state law that repeals prohibitions or restrictions on sports wagering activity."

A decision on New Jersey's latest motion is expected sometime in October. The Court has already indicated that the motion is "set for 10/6/14 before Judge Michael A. Shipp" and "will be decided on the papers." New Jersey had requested oral argument in its motion, but its request was denied by the district court. Not a good sign. This should lead to a relatively quick decision. As first reported by Christopher Soriano, a gaming attorney with Duane Morris, the leagues' and DOJ's response to the motion is due on September 22, 2014, with New Jersey's reply brief due on September 29, 2014. Based on this expedited briefing schedule (which is standard for New Jersey federal practice), I would expect to see a ruling by mid-October. Of course, this does not take into account the possibility of an appeal. For example, if Judge Shipp denies New Jersey's motion, look for New Jersey to appeal that decision to the Third Circuit. Likewise, if he modifies the injunction in the manner requested by New Jersey, the NBA and the other pro sports leagues will undoubtedly appeal that order, no matter what Adam Silver may have said on Friday.

My analysis of New Jersey's latest gambit appears in Law360 (subscription required) and Meadowlands Matters, and I will update this post later today or tomorrow to provide a more complete legal analysis, including an assessment of New Jersey's chances for success before the district court (and the Third Circuit).