Expect a packed courtroom Monday morning when the 3rd U.S. Circuit Court of Appeals takes up an emergency injunction request brought by all of the major professional sports leagues -- baseball, football, basketball and hockey -- to challenge Delaware's soon-to-be-launched sports lottery.
At issue in the appeal is whether Delaware's proposed lottery -- currently set to start in three casinos Sept. 10, when football season opens -- violates the federal Professional and Amateur Sports Protection Act, or PASPA, passed in 1992.
The appeal has moved quickly. Filed on Aug. 7, with briefs due the following week, it will be argued Monday before 3rd Circuit Judges Theodore A. McKee, Julio M. Fuentes and Thomas M. Hardiman.
So far, two other courts have already given Delaware a green light.
In an advisory opinion sought by Gov. Jack Markell, the Delaware Supreme Court declared in a unanimous opinion in May that the new sports lottery would not violate the state constitution.
Two months later, the sports leagues filed suit in federal court, but lost their bid for a preliminary injunction when Chief U.S. District Judge Gregory M. Sleet found the leagues had not proven they were likely to succeed in their challenge and that they had not shown "irreparable harm."
Sleet noted that he wasn't writing on a clean slate and that, 32 years ago, U.S. Circuit Judge Walter K. Stapleton, who was then a district judge on the Delaware federal bench, refused to grant an injunction sought by the NFL to stop Delaware from instituting a lottery based on a football pool.
Stapleton's 1977 opinion said the NFL failed to show that gambling on its games "has or will damage its good will or reputation for integrity" unless there was proof that the public would be confused about who was sponsoring it.
"The record shows that extensive gambling on the NFL has existed for many years and that this fact of common public knowledge has not injured plaintiffs, or their reputation," Stapleton wrote.
Sleet noted that 16 years elapsed between Stapleton's decision and Congress' passage of the PASPA, and that another 16 years has elapsed since the law was passed.
"Today, the court sees some irony in ... the reappearance of the NFL, along with other parties plaintiff, before this court making similar claims to being in imminent danger of having their reputations and good will compromised because of yet another attempt by Delaware to engage in gambling activity associated with professional football and other sports," Sleet wrote.
On appeal, lawyers for the leagues -- Major League Baseball, the NFL, the NHL, the NBA and the National Collegiate Athletic Association -- argue that Sleet failed to recognize that the purpose of an injunction is to "preserve the status quo."
Attorney Kenneth J. Nachbar of Morris Nichols Arsht & Tunnell in Wilmington, Del., who will be arguing the appeal for all of the leagues, said in his brief that he was asking only for a "narrow injunction" that would prohibit Delaware from exceeding the "limited exception" for state-sponsored lotteries outlined in the PASPA.
Nachbar said in the brief that the leagues are asking the 3rd Circuit to order an injunction that limits Delaware to implementing a lottery identical to the one begun in 1976 and approved by Stapleton a year later.
But Delaware's lawyers -- Andre G. Bouchard, David J. Margules and Joel Friedlander of Bouchard Margules & Friedlander -- argue that Sleet got it right when he found that the leagues had failed to establish all of the essential elements for winning an injunction.
Sleet has expedited the case for a quick trial, the defense team noted, and there isn't likely to be any real harm from allowing the law to go into effect for a few months.
"Given the increased magnitude of sports betting in the United States -- estimated in the hundreds of billions of dollars each year -- the effect on plaintiffs, if any, from the challenged lottery games at three Delaware venues over the next few months is de minimis," the defense team argued in its brief.
