Beyond Sports Betting in Murphy v. NCAA
$7.61 billion. That amount roughly encompasses how much money people bet on the Super Bowl in 2022.1 For states like Nevada, often referred to as the gambling capital of the United States, gambling and sports betting have been practiced for decades, with millions of tourists experiencing the thrills and anxiety that come with high-stakes wagers. But this dangerous luxury was not permitted in most of the U.S. until 2018, when the Supreme Court decided Murphy v. National Collegiate Athletic Association and struck down the federal ban on state authorization of sports betting. This decision overturned the Professional and Amateur Sports Protection Act of 1992, or PAPSA, which prohibited states from authorizing sports betting, except for the four states which had already passed laws explicitly permitting sports betting, including Nevada.2
In June 2018, in a direct violation of PAPSA, New Jersey governor Phil Murphy signed an act allowing sports betting at New Jersey’s casinos and racetracks.3 This action sparked the question of whether sports betting is a federal or state issue. Professional sports leagues argued that federal law is supreme, consistent with their precedent of opposing sports gambling, even dating back to 1992 congressional hearings.4 On the other hand, New Jersey claimed PAPSA was incompatible with the anti-commandeering rule, which states that the federal government cannot require states to enforce federal law.5 Thus, New Jersey argued that the federal government cannot compel states to follow its decisions about sports betting.6 While the expansion of sports betting allowed in Murphy v. NCAA arguably has a minimal direct, positive impact, the decision opens the door to impactful, long-overdue changes — like decriminalizing marijuana — by clarifying states’ decision-making autonomy.
The immediate discussion that Murphy sparks centers on sports betting, which comes with its own mixed reactions. With the possibility of sports betting becoming increasingly common, the negative stigma around it may start to fade, providing new sources of revenue for sports leagues and states. Increased tax revenues can help expedite school improvements and investment in youth recreation, while a legal avenue for sports gambling could create new jobs in the industry.7 However, the decision also leaves many questions unanswered: how should consumer accessibility be addressed? Will mobile sports betting be allowed? Will the NCAA change its rules that prevent states with legal sports gambling from hosting certain events?8 While sportsbooks have notoriously thin margins (only 4.6% of the total money wagered in Las Vegas ends up as revenue), between $150 and $400 billion is bet on sports each year, leaving significant profits at stake.9 Whether that money goes to education, infrastructure, or something else is entirely up to the states — a newfound freedom as a result of the Murphy decision.10
Murphy v. NCAA also impacts discussions around federalism — the U.S. system of government in which power is divided between the federal and state government. As the Supreme Court reaffirmed the anti-commandeering rule, the federal government can no longer claim to be regulating authorization, and find a loophole to continue prohibiting sports betting.11 With a new precedent for the relationship between state and federal law, related cases may be decided differently, such as the challenges to Section 1373, a federal immigration law. Under this statute, states cannot enact policies that limit communication with Immigration and Customs Enforcement or the Customs and Border Patrol about any individual’s citizenship status.12 According to the Murphy decision, this restriction would be viewed as another attempt to force states into doing as the federal government wishes — a violation of the anti-commandeering rule. This finding is especially relevant when it comes to sanctuary cities, areas that limit cooperation with the federal government to protect members of immigrant communities.13 Under Section 1373, these cities are at risk, but Murphy’s clarity that the federal government cannot tell the states to “dance to its tune” protects the communities that rely on that guarantee of safety.14 Both Section 1373 and PAPSA strive to subvert state control, but Murphy v. NCAA crucially preserves state sovereignty and marks a continued challenge to federal power in areas of disagreement.
An indirect, but still relevant impact of the Murphy ruling is marijuana legalization: as the Supreme Court has repealed federal bans on activities like sports betting, states can now legalize marijuana free of constraints from the federal government. While some may argue that the industry will continue being dominated by wealthy corporations, the increased level of freedom for states to regulate the possession, manufacturing, and distribution of marijuana can lead to an increase in tax revenues and funding for a host of state initiatives.15 The Supreme Court also did not acknowledge any constitutional distinction between licensing and authorizing sports betting, eliminating the issue of state licensing laws, extending the conversation to other areas like marijuana.16 States can now license sports betting operations just the same as private marijuana suppliers; for those that have already legalized recreational or medicinal use, they can rest assured that no federal mandate will roll back those rights.17 An important caveat is that Murphy v. NCAA should not be read “as an invitation to challenge federal drug laws” and that the Controlled Substances Act still categorizes marijuana as a schedule I substance.18 Thus, the federal government can still regulate and criminalize drugs like marijuana, but Murphy v. NCAA indicates that prohibitions are unlikely to be forced onto states. After all, Murphy ensures “federal jurisdiction over marijuana use can only extend as far as the federal resources allotted to enforce it,” making it unlikely that the federal government will try to preempt state’s legalization initiatives.19 At the same time, the potential for change does not mitigate the impact of the War on Drugs on people of color; decriminalization of marijuana is a separate, and important, conversation.20
Admittedly, facilitating greater state autonomy on certain matters may lead to harmful outcomes, evidenced by concerns of accountability or inequality between states. Don Kettl, a former Policy Professor at the Lyndon B. Johnson School of Public Affairs, argues that there is little evidence that states are more effective administrators than the federal government. Federal organizations ranging from the Social Security Administration to the Internal Revenue Service have low error rates and better outputs than other nations or the states.21 On the other hand, initiatives which are primarily run by states, like the Temporary Assistance for Needy Families program, have diminished in quality, with only 23% of families covered with benefits, partially due to states using the money for other purposes because of the high flexibility allowed.22 While these worries are valid, Congress is not thrown out of the question entirely — it can still dispense policy decisions, but, by not adopting a one-size-fits-all approach to regulation, each state can pursue the most appropriate path for its social, financial, and political needs.
Although Murphy emerged as a conversation about sports betting, the effects of the Court’s decision extend to many domains. With a renewed emphasis on the federal government taking a more “hands-off” stance, states can entertain discussions about immigration or marijuana on their own terms, prioritizing the well-being of individuals that have been historically marginalized or overlooked. The debate on federalism may rage on, but if the Supreme Court has placed this emphasis on state autonomy, one can hope it will engender positive change and inclusive practices. The chapter on sports betting has closed; now, it is time to expand to conversations that might be less comfortable, but much more impactful.
References
1 “How Much Money Do Americans Bet On Sports,” LegalSportsBetting.Com (blog), accessed April 14, 2022, https://www.legalsportsbetting.com/how-much-money-do-americans-bet-on-sports/.
2 “PASPA Supreme Court Decision: All You Need to Know,” accessed April 14, 2022, https://www.wsn.com/sports-betting-usa/paspa/.
3“Murphy v. National Collegiate Athletic Association,” Oyez, accessed March 24, 2022, https://www.oyez.org/cases/2017/16-476.
4 “Betting On Gambling: How Professional Sports Leagues Could Increase Revenues Following Murphy v. NCAA,” n.d.
5 “Symposium: It’s Time to Abandon Anti-Commandeering (but Don’t Count on This Supreme Court to Do It),” SCOTUSblog (blog), August 17, 2017, https://www.scotusblog.com/2017/08/symposium-time-abandon-anti-commandeering-dont-count-supreme-court/.
6 Ibid.
7 Michael Baumann, “The Downsides of Legalized Sports Gambling,” The Ringer, May 15, 2018, https://www.theringer.com/sports/2018/5/15/17355544/downsides-sports-gambling-legalization-ncaa-marijuana.
8 “August 2018: The Implications of the United States Supreme Court’s Murphy v. NCAA Decision on Legalized Sports Betting,” JD Supra, accessed March 24, 2022, https://www.jdsupra.com/legalnews/august-2018-the-implications-of-the-19446/.
9 Danny Heifetz, “If Sports Gambling Is Legal, Where Does the Money Go?,” The Ringer, May 24, 2018, https://www.theringer.com/2018/5/24/17386952/sports-gambling-money.
10 Ibid.
11 The Regulatory Review, “Federalism Comes Out as the Winner in Murphy v. NCAA | The Regulatory Review,” July 10, 2018, https://www.theregreview.org/2018/07/10/somin-federalism-comes-out-winner-murphy-v-ncaa/.
12 “8 U.S. Code § 1373 - Communication between Government Agencies and the Immigration and Naturalization Service,” LII / Legal Information Institute, accessed April 14, 2022, https://www.law.cornell.edu/uscode/text/8/1373.
13 “What Is a Sanctuary City Anyway?,” Learning for Justice, May 22, 2017, https://www.learningforjustice.org/classroom-resources/texts/what-is-a-sanctuary-city-anyway.
14 Garrett Epps, “The Supreme Court Says Congress Can’t Make States Dance to Its Tune,” The Atlantic, May 14, 2018, https://www.theatlantic.com/ideas/archive/2018/05/paspa-sanctuary-cities/560369/.
15 Michael Baumann, “The Downsides of Legalized Sports Gambling,” The Ringer, May 15, 2018, https://www.theringer.com/sports/2018/5/15/17355544/downsides-sports-gambling-legalization-ncaa-marijuana.
16 “The Implications of Murphy v. NCAA for State Marijuana Reforms,” Vanderbilt University, accessed March 24, 2022, https://my.vanderbilt.edu/marijuanalaw/2018/05/the-implications-of-murphy-v-ncaa-for-state-marijuana-reforms/.
17 “U.S. Supreme Court Defends State Sovereignty via Anti-Commandeering Doctrine,” The National Law Review, accessed March 24, 2022, https://www.natlawreview.com/article/us-supreme-court-defends-state-sovereignty-anti-commandeering-doctrine.
18 Ibid.
19 Jonathan O Ballard Jr, “Murphy v. NCAA: The Supreme Court’s Latest Advance in Chemerinsky’s ‘Federalism Revolution,’” LOYOLA OF LOS ANGELES LAW REVIEW 52 (n.d.).
20 Michael Baumann, “The Downsides of Legalized Sports Gambling,” The Ringer, May 15, 2018, https://www.theringer.com/sports/2018/5/15/17355544/downsides-sports-gambling-legalization-ncaa-marijuana.
21 Annie Lowrey, “Are States Really More Efficient Than the Federal Government?,” The Atlantic, October 2, 2017, https://www.theatlantic.com/business/archive/2017/10/graham-cassidy-states-federal-efficiency/541599/.
22 Ibid.