Sports Leagues And Horsemen Brace For News From U.S. Supreme Court In May


On Monday, the NCAA, NFL, and three other major pro sports organizations took their final stand in a U.S. Supreme Court filing aimed at getting their feud with New Jersey’s thoroughbred horsemen heard.

A day later, the Supreme Court announced that the case would be added to a list of more than 140 cases at the court’s May 15 conference — with likely only a tiny handful getting the green light to go forward.

A decision by the Supreme Court — which in the negative could be as short as a sentence with the word “denied” in it and no elaboration — could come as soon as a few days after that.

Former U.S. Solicitor General Paul Clement, whose representation of the leagues dates back to the 2012-2018 sports betting battle ultimately won by New Jersey, headed the sports leagues’ team of attorneys who produced a 17-page brief.

The filing was in response to the horsemen’s claims that there was no need for the Supreme Court to hear the case because there isn’t a sufficiently urgent constitutional issue at stake.

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That’s the same argument that the leagues made in vain in 2016, when the Supreme Court took the rare step of agreeing to take the case. And once again, it will take four of the court’s nine justices to agree that this case must be further studied.

The “wrongful” harm to the horsemen

A core issue comes down to whether, in 2014, a U.S. District Court judge “wrongfully enjoined” the horsemen from offering sports betting at Monmouth Park from 2014-18.

The horsemen seek not only a $3.4 million bond posted by the leagues six years ago as they obtained a temporary restraining order, but a total of $150 million because of the four years of delayed revenue from sports betting at Monmouth Park.

On the one hand, there is little dispute that Judge Michael Shipp‘s rejection of the horsemen’s argument was based on his “bosses'” previous decisions at the U.S. Third Circuit Court of Appeals.

On the other hand, the Supreme Court concluded that the federal law that Shipp and the Third Circuit had backed — the Professional and Amateur Sports Protection Act of 1992 — was never constitutional in the first place.

Instead, the court found, PASPA impermissibly “commandeered” the states into doing the federal government’s bidding. Therefore, the horsemen should have been allowed to offer sports betting all along — the lower courts simply got it wrong, repeatedly.

Third Circuit Judge Marjorie Rendell concluded last fall that “a party is wrongfully enjoined when it turns out that that party had a right all along to do what it was enjoined from doing.”

Leagues say Supreme Court must step in

Clement opens his argument, basically, by challenging the definition of “wrongfully enjoined” in this case. He also argues that a contrary ruling about temporary restraining orders in a different Circuit Court requires the Supreme Court to end the potential confusion.

“The split is real; it is mature; and it warrants this Court’s review,” Clement wrote. “This case presents an ideal vehicle to resolve it. … The rules that govern those ubiquitous decisions should not be uncertain or vary from circuit to circuit.”

The fact that the sports leagues only had to put up a modest $3.4 million bond even as the case dragged on for years, wrote Clement, illuminates the fact that bond requirements don’t pertain to “permanent injunctions.”

And since the horsemen, according to Clement, “brazenly” flouted what had been an unchallenged federal law, he said the leagues should not be penalized for enforcing the rights to seek an injunction against New Jersey as clearly permitted by PASPA.

Forcing the leagues, six years later, in such circumstances to pay such a large sum to the horsemen would be “patently inequitable,” Clement added.

Finally, Clement argued that the fact that the U.S. Supreme Court first reviewed the initial sports betting saga, rejected a state motion to have the case heard by the top court, and then ultimately agreed to take the second version of the saga, makes for good reason for the Supreme Court to take this “sequel” as well.

“The happenstance of this Court’s prior involvement is a feature, not a bug, as it gives the Court an intimate familiarity with the procedural history and a keen sense of the inequity,” Clement wrote.

Photo by Brandon Bourdages /

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John Brennan

John Brennan has covered NJ and NY sports business and gaming since 2002 and was a Pulitzer Prize Finalist in 2008, while reporting for The Bergen County Record.

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