Sunday, June 28, 2015

Preview of New Jersey Sports Betting Decision and Likely Aftershocks

As we await the impending decision in the New Jersey sports betting case, no clear consensus has emerged as to which side will win. Those of us who were in attendance for the Third Circuit oral argument on March 17th are divided. While some seasoned observers believe that New Jersey will prevail (and they may be right), others (such as myself) have a hard time wrapping their arms around the prospect of a federal appeals court actually blessing New Jersey's plan to legalize sports betting through a "partial repeal" that primarily benefits state-licensed casinos and racetracks. But my skepticism is not based on the law, but, rather, my sense that the Third Circuit may be reluctant to open the floodgates for nationwide deregulated legal sports betting (the "inevitable" consequence of any New Jersey victory) at casinos and racetracks. Putting my cynicism aside, I believe that New Jersey may hold the upper hand based on what unfolded at the oral argument. In contrast to the district court, which was concerned with the far-reaching implications of other states following New Jersey's blueprint (and thereby potentially weakening PASPA), the Third Circuit signaled strongly that principles of statutory interpretation would dictate the outcome. And this bodes well for New Jersey.

Natural Meaning of the Word "Authorize"

The question asked repeatedly at oral argument was "what does 'authorize' mean"? It was asked no fewer than six times. Why is this one word so critically important? The answer lies in the plain language of the statute. Pursuant to PASPA, states may not "authorize" sports wagering schemes (and also may not sponsor, operate, advertise, promote, or license such activities). The sports leagues take the position that New Jersey's partial repeal law is tantamount to an "authorization" of sports gambling because it allows such activity to take place only at state-licensed and state-regulated casinos and racetracks (and at former racetrack sites). New Jersey, on the other hand, maintains that its new law (which relies upon the Third Circuit's "exact contours" language in Christie I and the U.S. Solicitor General's prior statement that New Jersey is free to repeal its state-law prohibitions "in whole or in part" without violating PASPA) is not an "authorization" of sports gambling because there would be no state involvement in that activity. New Jersey argues that the word "authorize" connotes some type of "affirmative" state sanctioning of the activity, i.e., placing the state's "imprimatur" on sports betting. The Third Circuit zeroed in on this difference, with one panelist pointedly asking whether "authorize" means "to permit" or "to allow" (as the leagues maintain) or whether it must rise to the level of a state sanctioning or approval of the activity (as New Jersey argues).

Principles of statutory interpretation would appear to support New Jersey's interpretation. The statutory term "authorize" is not defined by PASPA. When a statute itself does not define a term, courts will often construe the term in accordance with its ordinary or natural meaning. This exercise is highly favorable to New Jersey. According to Black's Law Dictionary, the word "authorize" means "to give legal authority; to empower; or to formally approve; to sanction." Similarly, according to the American Heritage Dictionary, to "authorize" means "to grant authority or power to. To give permission for; sanction." The American Heritage Dictionary supplements the above definition of "authorize" with the following example of its usage: "city agency that authorizes construction projects." Likewise, Webster's Third New International Dictionary defines "authorize" as meaning "to endorse, empower, or permit by or as if by some recognized or proper authority; to endow with effective legal power."

These definitions suggest that the term "authorize" does not merely mean "to permit" or "to allow," as the leagues contend. Rather, according to the natural meaning of the word "authorize," there must be an affirmative granting of approval to engage in the conduct in question. One of the Third Circuit judges, Marjorie Rendell, appeared to embrace this construction when she remarked that "to authorize" means "to give power of official meaning, that the state is involved in the process." And Judge Julio M. Fuentes (who authored the majority opinion in Christie I) pointedly stated during an exchange with Paul Clement (the sports leagues' attorney) that "[a] repealer is a removal of the restrictions and of all criminal laws, but it doesn't mean that the government is saying go ahead and engage in that activity."

But the panel was also concerned about the "selective" nature of the partial repeal, suggesting that by restricting sports gambling to specific locations (e.g., casinos and racetracks) which are licensed and heavily regulated by the state, New Jersey may be "authorizing" that activity. One panelist found it "curious" that sports betting "is now being allowed only in places that have gambling licenses." And another panelist remarked that New Jersey's partial repeal law does more than just simply remove existing prohibitions: it "affirmatively permits" sports gambling at racetracks, casinos and former racetrack sites.

The "Associated Words Canon"

But other interpretative tools may strengthen New Jersey's hand. The most pivotal moment of the oral argument occurred when Judge Marjorie Rendell invoked the "associated words canon" during her questioning of Paul Clement, the leagues' counsel:
THE COURT: . . . here we have the words "sponsor, operate, advertise, promote, license, authorize," you know there is a canon, associated words canon, and all of these words anticipate something more, something, something affirmative. 
Should we not read "authorize" to mean something more than merely "permit"? Should we read it to say authorized by, you know, empowering, giving the state imprimatur, if you will. I get back to the issue of how do we read "authorize"? And doesn't the context in PASPA make it seem like the state has to do something by law that is a scheme as compared to just saying okay, you can do it at these places?
The "associated words canon" (also known as noscitur a sociis) is a tool of statutory construction which provides that when a string of words are grouped together in a statute, they should bear on one another's meaning. Or, as the Supreme Court has put it, "'[a] word is known by the company it keeps-' a rule that is often wisely applied when a word is capable of many meanings in order to avoid the giving of unintended breadth to the Acts of Congress." Thus, an otherwise ambiguous statutory term may be given a more precise meaning by reference to the neighboring words with which it is associated.

Under this canon, the term "authorize" would be construed in light of the other verbs which accompany it in PASPA--"sponsor," "operate," "advertise," "promote" and "license." Each of these associated words connotes some type of official involvement by the state in sports gambling. Judge Rendell hinted at this during the following exchange with Paul Clement, the former U.S Solicitor General and outside counsel for the sports leagues:
MR. CLEMENT:  . . . I mean I think that in terms of context you obviously can look at the surrounding words. I think you can also look at the legislative history. I think that's still allowed in this country. . . . 
THE COURT: But I don't think we can go beyond the language of the law and really look at that. I mean it's fair to know about it, but unless there's ambiguity in the law, you know there really isn't a need. And again I look at the other words and they require something more than - - - I mean they really require involvement of the state, "promoting, licensing, advertising," you know, putting its seal of approval, if you will. . . .
Echoing this point, renowned appellate lawyer Ted Olson (representing Governor Christie) referred to the earlier Third Circuit opinion which equated the PASPA verbiage (sponsor, operate, advertise, promote, license, and authorize) with a state "scheme":
MR. OLSON:  Well, I think that -- I read your opinion. And I read your opinion to mean that the words, and one of you referred to the fact that it's a stream of words, it has to do with the state providing the approval, a mechanism. It's almost as if you have a license to put in the window saying this is permitted here. You said -- 
THE COURT: We talk about a scheme also, a scheme.
MR. OLSON: You talked about a scheme and a regime, you talked about permit issuing, licensing, state issues license, affirmative authorization, authorization by law, state scheme, state sponsored, state sanctioned.
A look back at Christie I provides some context and insight into the Court's thinking. In Christie I, the Third Circuit stated that "[a]ll that is prohibited [under PASPA] is the issuance of gambling 'license[s]' or the affirmative 'authoriz[ation] by law' of gambling schemes." Within the same paragraph, the Court reiterated that "PASPA speaks only of 'authorizing by law' a sports gambling scheme." The use of the words "only" and "scheme" is notable here. It suggests that a partial repeal of state-law prohibitions against sports gambling would not violate PASPA so long as there is no state scheme or involvement. The interplay of this key language with the interpretative tools discussed above would appear to leave New Jersey holding a strong hand following oral argument.

But Legislative History May Cut the Other Way

Although Judge Rendell downplayed the importance of PASPA's legislative history--saying it only came into play if there was an "ambiguity" in the statutory language--the Third Circuit will likely consult PASPA's background and motivating policies as part of its analysis. If the Court believes that there is a latent ambiguity in the meaning of the term "authorize" (which seemed to be the case at oral argument), then it will undoubtedly avail itself of all pertinent tools of statutory construction, including reviewing the legislative history of PASPA in addition to employing the "associated words canon" and other interpretive aids.

The legislative history of PASPA cuts both ways. While the express legislative purpose behind PASPA was to "stop the spread of state-sponsored sports betting," Congress was also concerned with maintaining the integrity of, and public confidence, in professional and amateur sporting events, which federal officials believed would be threatened by the widespread legalization of sports gambling. But the leagues' attorney, Paul Clement, wisely refrained from playing that card during oral argument, in all likelihood because one of his clients (the National Basketball Association) has evolved in its thinking and now believes that the legalization of sports betting (through the adoption of a federal framework) would actually serve to promote the integrity of sporting events.

Instead, Mr. Clement pointed to language in Senate Report 102-48 expressing concern about the prospect of sports gambling "spreading" to racetracks and casinos, and specifically mentioning Florida as one of the states that was contemplating approving some form of sports gambling for its racetracks as part of legislation "reauthorizing" Florida's pari-mutuel wagering statute (when it was originally set to expire in the early 1990's):
MR. CLEMENT: [I]f you look at the Senate report, there are three things that it's crystal clear Congress is concerned about. They're concerned about states having state lotteries that involve sports gambling. They are concerned with racetracks that already have venues for state authorized gambling having sports gambling. If you look at the Senate Report it's very specific. 
At the time Florida is going through the process of renewing the licenses of its racetracks. And Congress is worried that they're going to get involved in sports gambling as a way -- this is 20 years ago, or 20 plus years ago, but the horse tracks were already in a little bit of financial trouble, and there was concern that they're going to try to add sports gambling as the next solution. And Congress was very concerned about that.
[Congress was also] concerned about . . . what they called in the Senate report "casino style" sports gambling, and they were specifically focused on the New Jersey situation. . . . Now, I think what that shows you is that Congress was particularly concerned with the idea that sports gambling would take place in the venues that states had selected as the being the venues for state authorized gambling.
But there are several flaws with Mr. Clement's decision to highlight only select portions of the Senate Report. For one, it makes no mention of the primary legislative intent behind PASPA: to stop the spread of state-sponsored sports betting and to maintain the integrity of sporting events. If the Third Circuit is going to consider PASPA's legislative history, then it must consider the entire Senate Report, and not just select portions thereof. Second, whatever concern that Congress may have had about casinos and racetracks offering sports gambling was solely in the context of state-sponsored gambling "schemes." Along those lines, the Senate Report noted that "[i]n the broader sports gambling area, States are considering a wide variety of State-sponsored gambling schemes," specifically mentioning both the Florida racetrack situation and "casino-style" sports gambling. But New Jersey's partial repeal law (which would entail no state oversight of sports gambling) would not seem to fit the rubric of a state-sponsored "scheme." Thus, the legislative history would not appear to be as one-sided as Mr. Clement suggests.

The "Rule of Lenity"

Although not raised during oral argument or in the parties' written submissions, there is yet another canon of statutory interpretation that could tip the scales in favor of New Jersey--the "rule of lenity." The rule of lenity holds that "where there is ambiguity in a criminal statute, doubts are resolved in favor of the defendant." This is the judicial equivalent of the baseball maxim "the tie goes to the runner." Courts will apply the rule of lenity when, after all the tools of interpretation have been applied, a reasonable doubt as to statutory interpretation persists. The rule of lenity is premised on two ideas. First, a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is crossed. A second goal of the rule of lenity is to minimize the risk of selective or arbitrary enforcement, and to maintain the proper balance between Congress, prosecutors, and the courts. Or, as the Supreme Court put it, "legislatures and not courts should define criminal activity."

But the rule of lenity is not automatically applied merely because there is some ambiguity in the statute under review. In order for the rule to apply, there must be a “grievous ambiguity or uncertainty in the language and structure of the statute." Lenity is reserved for those situations in which reasonable doubt persists about a statute's intended scope "even after resort to the language, structure, legislative history, and motivating policies of the statute in question." It will be invoked only if, after seizing everything from which aid can be derived, the court can make no more than a "guess" as to what Congress intended. In other words, the rule of lenity is an interpretive tool of "last resort."

The "rule of lenity" could come into play here as the Third Circuit wrestles with the critical question of just how far a repeal must go in order to not violate PASPA. There are no clear answers. And oral argument only added to the confusion, with the leagues retreating from their earlier position and conceding that something less than a "complete repeal" might be allowed under PASPA. But both the leagues and the DOJ struggled to pinpoint the line of demarcation. When asked by Judge Fuentes how far a repeal must go, Mr. Clement vaguely answered "pretty far," suggesting that "the dividing line is maybe around 50 percent." Determining whether a partial repeal of a criminal law constitutes an "authorization" of the activity and then pinpointing the dividing line is no easy task, even after employing canons of statutory construction and reviewing the legislative history of the statute. The Third Circuit may well conclude that this is an area of "grievous ambiguity or uncertainty," and invoke the rule of lenity in favor of New Jersey. I do not expect this to happen, particularly since it was not raised by the parties or by the Court. But it remains a possibility.

Absence of Word "Regulate" from PASPA May Help New Jersey's Chances

During last month's oral argument, Judge Fuentes (the author of the Third Circuit's majority opinion in Christie I) expressed concern that New Jersey's partial repeal law would have the effect of allowing completely unregulated sports betting to take place at state gambling venues. He suggested that this would be anathema to PASPA's goal of preserving the integrity of sporting events. Judge Fuentes' concerns go to the very heart of why I believe New Jersey may be on the losing side (yet again) despite having what I consider to be the better of the legal arguments under a pure statutory interpretation analysis. The following exchange between Judge Fuentes and Mr. Olson demonstrates this tension:
THE COURT: I'm really impressed in how this whole thing is going to unfold, because I was very impressed, in reading your brief, with the number of regulations that the state is repealing, including oversight by the state and Casino Control Commission, the Division of Gaming Enforcement. They will all, according to the state, have no role whatsoever in sports betting.
MR. OLSON:  Correct. And that's -- 
THE COURT:  Well, I'm a little concerned about that, because the function of those [regulatory bodies] is to preserve integrity in the process and now the state is saying they're out of this. So this is essentially a laissez-faire. Sports betting is going to take place in the casino with no oversight whatsoever.
MR. OLSON: That's right. As I said, like a ping-pong table game or a debate tournament.
THE COURT: I guess it's not for us to say that's good or bad. . . If it were, I would have a response to that.
But then Judge Rendell (who was not part of the Christie I panel) weighed in and suggested that it might still be possible to read PASPA as not prohibiting the states from "regulating" sports betting. She noted that PASPA is "so specific" and that there are six verbs contained within PASPA identifying the activities states may not engage in (e.g., sponsor, operate, advertise, promote, license, or authorize), and noting that "regulate" is not one of them. She then posited that "some modicum" of state regulation could be "appropriate." Consider the following exchange:
THE COURT: Do you read PASPA as saying that, assuming the law were repealed in toto and operations came up all across the state, of sports gambling, do you read PASPA to prohibit the state from regulating, imposing any kind of regulations on the sports gaming?
MR. OLSON: Well, that's what our opponents are essentially saying now.
THE COURT: But I'm asking you, is that how you read it? . . .
MR. OLSON: . . . If the state is engaged, to address your exact question, in regulating the activity, that might involve the imprimatur of . . . regulation and control.
THE COURT: But which verb under PASPA would regulation fall under? It's not sponsoring, it's not operating, its not advertising; promoting; licensing; or authorizing. It's regulating. Would that be permissible? . . . 
MR. OLSON: Well, I think it is a different question . . . 
THE COURT: PASPA is so specific. There are six specific activities that you cannot engage in, but regulating is not part of that.
MR. OLSON: That's right.
THE COURT: So I'm just wondering, maybe thinking out loud, that maybe some modicum of regulation is appropriate if you were right in the first instance.
This could be a real "game-changer" for New Jersey. If, as Judge Rendell suggested, states could repeal sports betting prohibitions but still be allowed to "regulate" the activity (so long as they do not sponsor, operate, advertise, promote, license, or authorize it), this might be the type of compromise that avoids the "wild-west" scenario feared by Judge Fuentes. It would allow the Third Circuit to interpret PASPA in a manner that is favorable to New Jersey (and in accordance with the above-described canons of statutory construction) without having to worry about the negative consequences associated with unregulated sports betting. At the very least, this reveals Judge Rendell to be an "outside the box" thinker. As noted earlier, Judge Rendell was also the panelist who invoked the "associated words canon" during oral argument. Her comments from the bench strongly suggest that she might be inclined to rule in favor of New Jersey (or is at least looking for a reason to do so). But she will need at least one more judge to join her (there are three judges on the panel), and her statement concerning the ability of states to "regulate" sports gambling without violating PASPA may be just the vehicle to accomplish that.

The Long-Range Implications of the Third Circuit's Decision

The Third Circuit's decision--regardless of the result--will have far-reaching consequences for the U.S. sports industry (and New Jersey's gaming industry). If New Jersey prevails, sports betting could become a reality at the state's licensed casinos and racetracks in time for the beginning of the 2015 NFL season. But as the decision date stretches into July, that may prove to be a long shot (even with a New Jersey victory) because the leagues and the U.S. Department of Justice would have 45 days to file a petition for rehearing en banc. (Rehearing en banc is a mechanism available to the losing side to seek review of the decision by the entire court, rather than just the three-judge panel that decided the appeal). Normally, the deadline for seeking rehearing is 14 days from the date of the decision. But since the federal government is a party, the leagues would have 45 days to file a petition for rehearing. That means we are looking at a late August deadline, assuming that there is a panel decision by mid-July. Thus, for Monmouth Park Racetrack to be able to offer sports betting by Week 1 of the 2015 NFL season (September 10), an appellate decision plus a denial of rehearing would have to occur no later than September 3, 2015 since the injunction entered by the lower court would not be lifted until 7 days has passed from the denial of rehearing. With each passing "non-decision" day, the prospect of Monmouth Park Racetrack launching sports betting in time for Week 1 of the 2015 NFL season is in jeopardy, but I'm sure that the track operators will settle for any date in 2015 (or even 2016).

The impact of a New Jersey victory would extend far beyond the state's borders. One immediate aftershock of such an upset (I now give New Jersey a 40% of chance of prevailing, increased slightly after oral argument) is that neighboring states (such as Pennsylvania and Delaware, which are part of the Third Circuit territory) would likely follow New Jersey's "court-blessed" blueprint and enact their own version of a partial repeal law in reliance on the Third Circuit's decision. Looking beyond the Third Circuit's jurisdictional territory, we could see as many as 10 other states passing similar partial repeal laws within a matter of months following a New Jersey victory. Several states--most notably, Minnesota, Indiana and South Carolina, to name just a few--are not even waiting. The legislatures of those states have already proposed bills legalizing single-game sports wagering (but not the partial repeal version favored by New Jersey). While these bills are only in a preliminary stage at this juncture, expect them to be fast-tracked if New Jersey wins.

Further, a victory by New Jersey will undoubtedly—and perhaps quickly—lead to new federal legislation that would expand legalized sports betting beyond Nevada. This is because New Jersey’s version of legal sports betting would be “unregulated" (meaning no governmental oversight). While NBA Commissioner Adam Silver has come out in favor of legal sports betting, he maintains that it needs to be “regulated” in order to preserve the integrity of the league’s games. A New Jersey victory would open the door to “unregulated” sports betting, a prospect that the NBA, the other sports leagues, and Congress are desperate to avoid. But the leagues and Congress have offered no definitive timetable for federal legislative reform, or any guarantees. Most observers believe that there is little chance of any Congressional action before 2017 (especially with a Presidential election next year). A New Jersey victory would likely change all that, and accelerate the timetable for federal legalization to 2016 (or perhaps even this year). Thus, regardless of the result, the Third Circuit’s decision will likely go a long way toward determining the “timing” of when sports wagering becomes legal in the United States.

But even if New Jersey were to lose the appeal, the eventual Third Circuit opinion will likely include language that provides New Jersey officials with some guidance for future legislative efforts. One possibility that was suggested at oral argument is the idea of a partial repeal based on geographic boundaries rather than favoring specific industries. The Court hinted that such a regime might not violate PASPA, and I would not surprised if that were the eventual solution reached by the panel (although courts are not typically in the business of issuing "advisory opinions"). New Jersey would then be poised to follow such a “roadmap” and introduce new legislation right away. Thus, regardless of the result, New Jersey may be inching closer towards achieving its goal of legal sports betting.

Tuesday, June 23, 2015

Are Fantasy Sports Legal in Florida? A Closer Look at the 1991 Attorney General's Opinion

The emerging popularity of daily fantasy sports has focused increased attention on whether such activity--which some equate to sports betting--is legal. While much of the debate has focused on federal law, and, in particular, the Unlawful Internet Gaming Enforcement Act, state law may represent the greater area of uncertainty (and vulnerability) for the fantasy sports industry. Four states—Iowa, Louisiana, Montana, and Washington—already expressly prohibit fantasy sports (either through an explicit statutory prohibition, as in the case of Montana, or through an advisory opinion from the state's attorney general, as in the case of Iowa and Louisiana, or because of an adverse interpretation by a state gaming regulator, as with the State of Washington). Additionally, the legality of fantasy sports (of all types) is especially murky in those states (such as Arizona, Illinois and Arkansas) in which even a modicum of “chance” would transform the contest into an illegal lottery, and, thus, run afoul of that state's gambling prohibitions.

But is Florida being overlooked? While there are there no Florida statutory provisions that directly address the legality of fantasy sports, the Florida Attorney General has weighed in on this issue, albeit, more than 20 years ago. On January 8, 1991, then-Attorney General Robert A. Butterworth issued an advisory opinion concluding that Section 849.14,Florida Statutes “prohibits the operation and participation in a fantasy sports league whereby contestants pay an entry fee for the opportunity to select actual professional sports players to make up a fantasy team whose actual performance statistics result in cash payments from the contestants’ entry fees to the contestant with the best fantasy team.” Fla. AGO 91-03, 1991 WL 528146, at *1 (Fla. A.G. Jan. 8, 1991).

As underscored by AGO 91-03, the question of legality in Florida does not turn on the “skill” vs. “chance” dichotomy, as it does in many other jurisdictions (which apply varying tests, but almost all of which embrace some form of the “skill” vs. “chance” analysis). While Florida’s gambling laws are primarily concerned with games of chance, there are specific provisions within Chapter 849 that also make it illegal to bet or wager on “contests of skill.” Along those lines, Section 849.14 provides as follows:
Whoever stakes, bets, or wagers any money or other thing of value upon the result of any trial or contest of skill, speed or power or endurance of human or beast, or whoever receives in any manner whatsoever any money or other thing of value staked, bet or wagered, by or for any other person upon any such result, or whoever knowingly becomes the custodian or depositary of any money other thing of value so staked, bet, or wagered upon any such result, or whoever aids, or assists, or abets in any manner in any of such acts all of which are hereby forbidden, shall be guilty of a misdemeanor of the second degree, punishable as provided on s 775.082 or s. 775.083.
Fla. Stat. § 849.14 (emphasis added)

There are four categories of potential violators that Section 849.14 was designed to reach: (1) the player, for betting or wagering on the contest of skill; (2) the sponsor, for accepting the bet or wager from the player; (3) banks and payment processors, for becoming the custodian or depositary of the money wagered, and (4) those who "aid, assist or abet in any manner" any of such acts. This last category should not be underestimated because it could subject “non-operators” to criminal liability merely for encouraging or assisting the primary violation of Section 849.14. Potentially at risk here are the investment banks, venture capital funds, professional sports leagues and teams, media broadcast companies, and entertainment companies that partner with the fantasy sports industry. These entities need ensure that the fantasy sports contests with which they are affiliated are legal in Florida, and, further, that their actions do not cross the line into “aiding and abetting” (as that concept is defined under Florida law).

While AGO 91-3 may seem antiquated to many, it remains the current (and only) law in Florida addressing the legality of fantasy sports. If you think that AGO 91-3 is no longer a concern, consider this: last year, one out-of-state gaming regulatory body cited AGO 91-3 in opining that “if a fantasy sports league has a buy-in (no matter what it is called) for its managers and gives a prize, then all three elements of an illegal lottery [e.g., chance, prize and consideration] are present." In concluding that a real-money fantasy sports league constituted illegal gambling, this Kansas regulatory body observed that “[t]he Florida Attorney General’s office reached the same conclusion in AGO 91-3.” While I have previously maintained that this Kansas regulatory opinion (since superseded) mischaracterized AGO 91-3 (which did not turn on the skill vs. chance dichotomy), the existence of that opinion underscores the very real risk that other regulators (and courts) could conclude that certain (or even many common) types of fantasy sports contests are illegal in Florida.

Deciphering “Stake, Bet or Wager” Under Florida Law

As stated earlier, the touchstone for a primary violation of Section 849.14 is whether the activity at issue constitutes a “stake, bet or wager.” Strangely, for a state with such an active gambling industry, Florida has very little case-law defining what constitutes a "stake, bet or wager." The most frequently cited decision is Creash v. State, 179 So. 149 (Fla. 1938), which distinguishes between a "stake, bet or wager" and a "purse, prize or premium" as follows:
In gamblers' lingo, 'stake, bet or wager' are synonymous and refer to the money or other thing of value put up by the parties thereto with the understanding that one or the other gets the whole thing for nothing but on the turn of a card, the result of a race, or some trick of magic. A 'purse, prize or premium' has broader significance. If offered by one (who in no way competes for it) to the successful contestant in a fete of mental or physical skill, it is not generally condemned as gambling, while if contested for in a game of cards or other game of chance, it is so considered. . . . 
Id. at 152 (emphasis added). The key difference, according to the Florida Supreme Court, is that in a "stake, bet or wager," all participants compete for thing offered, whereas, in the "purse, prize or premium" scenario, the sponsor does not compete for the thing offered.

But, at the same time, the Supreme Court cautioned against relying too heavily on labels in determining whether gambling has taken place. Rather, as Creash counseled, courts should look to the substance of the game under consideration (not its form), explaining:
Chance actuated by the hope of getting something for nothing is the controlling element in gambling. Any agreement or inducement by which one risks his money or other thing of value with no prospect of return except to get for nothing the money or goods of another is gambling. If the contest for a "purse, prize, or premium" or a "stake, bet or wager" has this element in it, it is gambling, regardless of the name by which it is called, the implements employed to accomplish the act, or the manner in which it is conducted.

As an illustration of this approach, the Creash court characterized as illegal "gambling" a contest where participants "contribute[d] to a fund from which the 'purse, prize, premium' is paid, and wherein the winner gains, and the other contestants lose all." Id. Thus, regardless of whether the thing played for was a "purse, prize, or premium," or a "stake, bet, or wager," the Florida Supreme Court held that a conviction for illegal gambling would be warranted if the evidence showed that: (1) the amount paid by each player to enter the game went into the common fund from which prizes were paid; (2) the primary purpose for entering the game was to play for money or something of value; (3) the prize or prizes played for were won and paid to the winner; and (4) the other players lost all they paid in. Id. at 153.

Attorney General Opinions 91-03, 90-58 and 94-72

It is against this backdrop that the Florida Attorney General considered the legality of fantasy sports nearly one-quarter of a century ago. In AGO 91-03, the fantasy sports league at issue was operated "by a group of football fans" in which contestants paid an entry fee of $100 for the right to "manage" one of eight fantasy football teams. Each contestant would "draft" players from current National Football League (NFL) rosters, and compete against other contestants on a weekly basis. The winner of each week's head-to-head match-up was determined by combining the individual performance statistics of the "drafted" players from actual NFL games played that week. At the end of the season, the entire $800 in proceeds (representing the aggregate amount of entry fees) was paid based on the performance of the fantasy team.

In analyzing whether participants in this fantasy sports league were "betting or wagering" on a contest of skill in violation of Section 849.14, the Attorney General looked to the correlation between the entry fees paid and the prizes awarded and whether all participants had a chance of gain and risk of loss (echoing language in Creash). Pointing to the fact that the "the $800 in proceeds from the entry fees [were] used to make up the prizes," the Attorney General concluded that this characteristic transformed the payment of the entry fees into a "'stake, bet or wager' as defined by the courts." Id. at 2.

The Attorney General then contrasted this situation with an earlier advisory opinion (AGO 90-58), in which he concluded that "a contest of skill where the contestant pays an entry fee, which does not make up the prize, for the opportunity to win a valuable prize by the exercise of skill, does not violate the gambling laws of this state." Id. at n.8.

So does this mean that the legality of fantasy football turns solely on whether the "entry fees make up the prize"? Not necessarily. There are three important distinctions between the fact patterns in AGO 91-3 and AGO 90-58 (which involved a hole-in-one golf contest sponsored by a third party). First, in AGO 91-3, there was a direct correlation between the entry fees received and the prize awarded (e.g., the prize consisted of the aggregate entry fees received), whereas, in AGO 90-58, the prize was not contingent on the amount of funds earned from contest entry fees. Rather, it was paid out of the general assets of the sponsor of the contest. Second, in AGO 91-3, all participants paid an entry fee and competed for the same prize (with each person having a chance of gain and a risk of loss), whereas, in AGO 90-58, the sponsor of the contest was not competing for the thing offered. Id. Third, in AGO 91-3, while there was certainly skill involved in drafting NFL players for each fantasy team, the prizes were paid to contestants based upon the performance of those third party players, whereas in AGO 90-58, prizes were awarded based upon the individual contestants' own performance in the hole-in-one golf contest.

The Attorney General alluded to this last factor in AGO 90-58 when, quoting directly from Faircloth v. Central Florida, Inc., 202 So.2d 608 (Fla. 4th DCA 1967), he explained that the legislative intent behind Section 849.14 was to "proscribe 'wagering' on the results of ballgames, races, prize fights and the like, as opposed to 'playing' games of skill for prizes." Fla. AGO 90-58, 1990 WL 509068, *2 (Fla. A.G. July 27, 1990) (quoting Faircloth, 202 So.2d at 609). "To hold otherwise," the Attorney General wrote (again quoting from Faircloth), "we would have to find all contests of skill or ability in which there is an entry fee and prizes to be gambling. The list could be endless: golf tournaments, dog shows, beauty contests, automobile racing, musical competition, and essay contests, to name a few. No one seriously considers such activities to be gambling." Id.

The fact-patterns in AGO 91-03 and 90-58 represent opposite ends of the spectrum: in the former, the entry fees made up the prize, whereas, in the latter, none of the entry fees were used to make up the prize. This begs the question: would the opinion in AGO 91-3 have been different if only a portion of the entry fees had made up the prize? A later Attorney General Opinion, AGO 94-72 suggests that the answer to that question is no. In AGO 94-72, the Attorney General concluded that the purchase of a ticket containing the names of sports teams selected at random violates Section 849.14 when the winning ticket is determined by the sports teams that have scored the most points and part of the proceeds from ticket sales is used to make up the prize. The Attorney General explained:
According to your letter, the contestants would purchase a ticket to participate in the contest. Part of the proceeds from the ticket purchases would be used to make up the prize. Such monies, therefore, would appear to qualify as a "stake, bet or wager" as interpreted by the courts.  
Fla. AGO 94-72, 1994 WL 508760, at *2 (Fla. A.G. Aug. 23, 1994)

This trio of advisory opinions provides several insights into the factors that the Florida Attorney General (and a Florida court) would likely consider when assessing the legality of a fantasy sports league in the present environment. As gleaned from these opinions, the pertinent considerations include: (1) the correlation between the entry fees and prizes awarded; (2) whether the prize amount was contingent on the amount of entry fees received; (3) the source of the prize money (e.g., whether the amount paid by each contestant went into a "common fund" from which prizes were paid or, alternatively, was paid out of the general assets of the sponsor); (4) whether all contestants had a chance of gain and a risk of loss; (5) whether the sponsor of the event was a participant for the prize; and (6) the dependency on the performance of third parties in ascertaining the winner of the contest.

Might the conclusion reached in AGO 91-3 have been different if some of the facts were changed? For example, let's assume that the prize awarded to the winner(s) of the fantasy sports league in AGO 91-3 was paid by a third-party sponsor (such as a Yahoo or CBS Sports) which did not compete for it. Let's also assume that the prize money was not contingent upon, or directly proportionate to, the amount of entry fees received, and was paid out of the general assets of the sponsor. Under these assumed facts, a strong case could be made that the opinion reached in AGO 91-3 would have been different. And since many of today's popular fantasy sports leagues share some of these characteristics, an attorney representing a fantasy sports league operator or participant in a criminal prosecution or an enforcement proceeding would be well-served to point out those differences.

Since issuing this trilogy of opinions in the early 1990's, the Florida Attorney General has not revisited the issue of whether operating or participating in a fantasy sports league contravenes Section 849.14. This is surprising considering the explosive growth of fantasy football over the last two decades and the specific exemption that fantasy sports was recently accorded under the Unlawful Internet Gaming Enforcement Act (UIGEA). But it also underscores the risk that fantasy sports operators and their business partners face in Florida, absent clarification from the Attorney General.

How much weight should be given to the Attorney General's opinion? Is it controlling? Although not binding on a court, an attorney general's opinion "is entitled to careful consideration and generally should be regarded as highly persuasive." State v. Family Bank of Hallandale, 523 So.2d 474, 478 (Fla. 1993). Nonetheless, there have been instances where Florida courts have found attorney general opinions to be unpersuasive. See In re Advisory Opinion to the Governor, 600 So.2d 460, 463 n. 3 (Fla 1992) (disapproving opinion of attorney general); Willens v. Garcia, 53 So.3d 1113, 1117 (Fla. 3d DCA 2011) (finding an attorney general's opinion to "based upon questionable reasoning."); De La Mora v. Andonie, 51 So.3d 517, 522-23 (Fla. 3d DCA 2010) (same). Since the legality of fantasy sports has not yet been tested in a Florida court, it is difficult to predict what, if any weight, a judge will accord these two-decade-old advisory opinions.

Need for Legislative Clarity

Although there have been no criminal prosecutions of fantasy sports operators or participants (or alleged aiders and abetters) since the issuance of AGO 91-3, it is not beyond the realm of possibility that an aggressive state prosecutor could seek to target the industry, which has changed dramatically since 1991. As more money flows into fantasy sports and the character of the games begin to more closely resemble gambling (rather than an informal social game), the risk of a criminal prosecution heightens. As unlikely as that may seem to many, all it takes is one aggressive prosecutor or attorney general to jeopardize Florida's lucrative and established fantasy sports market.

While the industry has devoted substantial lobbying efforts towards changing the law in Iowa, Kansas, and Louisiana to explicitly legalize fantasy sports, Florida is a much more vital and strategic market, as it is the home to nearly 20 million residents (more than the aforementioned states combined), two major fantasy sports operators (CBSSports in Fort Lauderdale and FanDuel's new Orlando office), and seven major professional sports teams (nearly all of which have entered into sponsorship deals with the fantasy sports industry). The stakes for the industry are simply too high to ignore the risk posed by Florida's arguably antiquated (but still-on-the-books) Attorney General's opinion.

One option might be to seek a legislative amendment to Section 849.14 to specifically carve out fantasy sports from the ambit of the statute. With the Florida Legislature poised to consider significant gambling expansion during next year's legislative session, the time may be right to explicitly legalize fantasy sports in Florida. One model that could be pursued is the Pennsylvania and Indiana approach, which seeks to legalize fantasy sports for casinos and racetracks. Florida is one of the largest gambling markets in the United States, with 31 licensed pari-mutuel operators. However, many of these operators have been reluctant to embrace fantasy sports because of concern about the lack of legal clarity in Florida, and, for those operators with multi-state properties, the risk of attracting the ire of gaming regulators in other states and potentially jeopardizing their valuable gaming licenses. A one-line fix to Section 849.14 could stabilize the industry in Florida and potentially open up a brand new revenue stream. It's worth a look.

Tuesday, May 19, 2015

Media Appearances and Presentations


Panelist, 15th Annual Saratoga Institute on Equine, Racing and Gaming Law Conference, August 12, 2014 (panel discussion on daily fantasy sports)

Panelist, Indian Country Online Congress, iFantasy/iSports, Pala, California, June 11, 2015 (panel discussion on daily fantasy sports)

Panelist, Legal Sports Betting: Current Fantasy or Coming Reality?, Southern Gaming Summit, Biloxi, Mississippi, May 6, 2015

Panelist, The Thin Line Between Fantasy Sports Leagues and Legalized Sports Betting—50 Shades of Legal Grey, International Masters of Gaming Law Spring 2015 Conference, St. Thomas, U.S. Virgin Islands, March 30, 2015

Panelist, 2015 UF Law Sports Law Symposium, University of Florida College of Law, March 27, 2015 (presentation on legal issues surrounding sports betting and daily fantasy sports)

Presenter, The New Era in Gaming Law, Northern Kentucky Law Review Symposium, NKU Chase College of Law, March 20, 2015 (presentation and paper addressing legalization of sports betting)

Panelist, Justice or Kangaroo Court? Rethinking Personal Conduct Policies in Professional Sports, University of New Hampshire School of Law, March 5, 2015 (presentation on legal developments in professional conduct policies of professional sports leagues) (co-sponsored by Sports Illustrated) (video)

Presenter, Fantasy Leagues and Real Money: How Fantasy Leagues Are Changing the Business of Sports, Nova Law Review 2015 Symposium, NSU Shephard Broad Law Center, February 12, 2015 (presentation on daily fantasy sports and sports betting legalization) (outline) (video)

Panelist, 2015 Sports Law Symposium, Charleston School of Law, January 30, 2015 (participated on panel addressing disciplinary powers of professional sports leagues and due process rights of players) (video)

Panelist, 5th Annual Sports & Entertainment Symposium, Duke University, January 16, 2015 (participated on panels devoted to fantasy sports, sports betting, and professional athlete discipline)
Presenter, National Conference of Legislators from Gaming States, Winter 2015 Meeting, Las Vegas, Nevada (gave presentation to state legislators on issues surrounding legalization of sports betting)

Panelist, Florida Gaming Congress, Miami, Florida, November 11, 2014 (presented to leading gaming industry conference on legal issues surrounding state-regulated sports betting and daily fantasy sports) (article)

Panelist, Boston Bar Association, Sports Law Roundtable Featuring Sports Illustrated’s Michael McCann: The Donald Sterling Controversy, August 8, 2014 (presentation and panel discussion on legal developments relating to the Donald Sterling controversy) (video)

Presenter, Game-Changer: The States’ Big Gamble on Legalized Sports Betting, American Bar Association Annual Meeting, August 10, 2014 (organized program, prepared written materials and gave opening remarks to national bar organization on issues surrounding the legalization and regulation of sports betting) (outline) (video)

Presenter, National Conference of Legislators from Gaming States, Summer 2014 Meeting, June 6, 2014, La Jolla, California (presentation on legal developments in federal sports betting litigation)

Presenter, National Conference of Legislators from Gaming States, Winter 2014 Meeting, January 11, 2014, Hollywood, Florida (presentation on legal developments in federal sports betting litigation)

Quoted, Sports Betting Could Boost Casino Traffic, Mississippi Business Journal, May 12, 2015

Quoted, Fantasy Sports Walks Legal Tightrope, Fort Lauderdale Sun-Sentinel, May 6, 2015

Quoted, DraftKings Faces New Lawsuit for Alleged False Advertising, Legal Sports Report, April 28, 2015

Quoted, New Jersey Prepared for ‘Christie III’ in PASPA Legal Saga, GamblingCompliance, April 17, 2015

Quoted, New Jersey Sports Betting Gaining Ground, Gaming Today, March 31, 2015

Quoted, March Madness Betting Bonanza Begins, GamblingCompliance, March 20, 2015

Quoted, N.J. Sports Bet Dispute Returns to Federal Court, Philadelphia Inquirer, March 17, 2015

Quoted, New Jersey, Leagues Return to Court, ESPN, March 17, 2015

Quoted, Backstory on Today’s New Jersey Sports Betting Hearing, Meadowlands Matters, March 17, 2015

Quoted, Three-judge panel hears appeal of N.J. sports betting, Bergen Record, March 17, 2015

Quoted, U.S. Sports-Betting Ban Back in Legal Spotlight, GamblingCompliance, March 17, 2015

Quoted, Sports Betting Turns A Corner, Las Vegas Sun, March 9, 2015

Quoted, Were Rice, Sterling, Peterson and Patriots Railroaded?, Concord (N.H.) Monitor, March 7, 2015

Quoted, Daily Sports Legal Risks No Fantasy, Warn Lawyers, GamblingCompliance, March 6, 2015

Quoted, Peterson Just 1 of the Players Left in Limbo by Ruling, USA Today, March 2, 2015

Quoted, New Jersey Sports Betting Paperwork Due Tonight, Meadowlands Matters, February 13, 2015

Quoted, U.S Leagues Take Fresh Look at Sports Betting, GamblingCompliance, February 12, 2015

Profiled, Fort Lauderdale Lawyer Lays Out Case for Preventing Judges From Soliciting Campaign Cash, Fort Lauderdale Sun-Sentinel, January 20, 2015

Quoted, Judicial Fundraising Case Recalls Florida’s Corrupt Past, Daily Business Review, January 12, 2015

Quoted, Christie Gifts From Cowboys Raise Ethics Concerns, Asbury Park Press, January 7, 2015

Quoted, Cleared of Conduct Code Violation, What Comes Next for Jameis Winston, Sports Illustrated, December 21, 2014

Quoted, Will Sports Betting Derail Christie’s White House Hope?, Asbury Park Press, November 24, 2014

Quoted, What’s Next in the NJ Sports Betting Saga?, Meadowlands Matters, November 23, 2014

Quoted, Proponents of N.J. Sports Betting See Promise in Courts, Congress, Bergen Record, November 22, 2014

Quoted, A Closer Look at the Latest NJ Sports Betting Ruling, Meadowlands Matters, November 21, 2014

Quoted, New Jersey to Appeal Judge’s Ruling, ESPN, November 21, 2014

Quoted, NJ Sports Betting Judge to Rule by Late Friday, Meadowlands Matters, November 20, 2014

Quoted, N.J. Racetrack at Risk in Christie vs. NFL, Asbury Park Press, November 20, 2014

Quoted, N.J. Sports Betting: 5 Things to Know Heading Into Today’s Hearing, Newark-Star Ledger, November 20, 2014

Quoted, New Jersey sports betting judge to go summary judgment route tomorrow, Meadowlands Matters, November 19, 2014

Quoted, Christie Facing Long Odds in Sports Betting Case, Asbury Park Press, November 18, 2014

Quoted, NBA’s Silver Shakes Up Sports Betting Debate, GamblingCompliance, November 17, 2014

Quoted, Commissioner on Sports Betting: What is His End Game?, Meadowlands Matters, November 17, 2014

Quoted, NBA Chief’s New Take on Sports Betting May Shift the Debate, Bergen Record, November 15, 2014

Quoted, NBA Commissioner: Allow Sports Betting (Eventually), Meadowlands Matters, November 13, 2014

Quoted, With Casinos Everywhere, South Florida Owners Seek Help, Fort Lauderdale Sun-Sentinel, November 12, 2014

Quoted, Judge Shipp Consolidated NJ Sports Betting Case, Meadowlands Matters, November 11, 2014

Quoted, Jameis Winston is Set Up to Fall in FSU Hearing, Orlando Sentinel, November 5, 2014

Quoted, New Jersey Racetrack Gambling on Sports Betting $$, Associated Press, November 1, 2014
Quoted, Did Sports Betting Judge Have an NFL Conflict?, Asbury Park Press, October 31, 2014

Quoted, Sports Betting Judge Should Step Aside, N.J. Lawmaker Says, Newark-Star Ledger, October 31, 2014

Quoted, NJ Sports Betting Judge’s Brother Has NFL Ties: Any Conflict?, Meadowlands Matters, October 31, 2014

Quoted, UFC Backs Betting Expansion in U.S., ESPN, October 31, 2014

Quoted, Judge Blocks New Jersey Sports Betting, Again, GamblingCompliance, October 27, 2014

Quoted, Sports Leagues Strike Back to Block New Jersey Betting, GamblingCompliance, October 21, 2014

Quoted, Sports Leagues File Restraining Order, ESPN, October 21, 2014

Quoted, Governor Christie Signs Sports Betting Bill, GamblingCompliance, October 20, 2014

Quoted, Once More, New Jersey Waits on Christie for Sports Betting, GamblingCompliance, October 17, 2014

Quoted, Florida States Jameis Winston Hearing Could Face Many Legal Hurdles, Sports Illustrated, October 16, 2014

Quoted, New Jersey Sports Betting Bill Approved in State Senate Today, Meadowlands Matters, October 14, 2014

Quoted, Jameis Winston’s Best Legal Move May be Drop Out of Florida State, Sports Illustrated, October 11, 2014

Quoted, DOJ, Sports Leagues Fight New Jersey’s Latest Betting Effort, GamblingCompliance, October 1, 2014

Quoted, British NFL Betting Grows as Wagers Remain Foul Play at Home, GamblingCompliance, September 26, 2014

Quoted, Sports Law Expert Throws Cold Water on New Jersey Sports Betting Gambits, Meadowlands Matters, September 16, 2014

Quoted, Rice Departs as Hardy Plays Following Assault Conviction, Bloomberg Business, September 13, 2014

Quoted, In Wake of Levenson Scandal, Sterling Answers NBA’s Counterclaims, Sports Illustrated, September 10, 2014

Quoted, Christie Opens the Door for Sports Betting in New Jersey, GamblingCompliance, September 9, 2014

Quoted, Levenson Situation Could Impact Donald Sterling Case Against the NBA, Sports Illustrated, September 8, 2014

Quoted, Donald Sterling Gives Up Battle for Clippers, Allows Deadline to Pass, Sports Illustrated, August 27, 2014

Quoted, New Jersey Governor to Review New Sports-Betting Bill, GamblingCompliance, July 2, 2014

Quoted, Pol Doubles Down on Sports Wagering, ESPN, June 23, 2014

Interviewed, Daniel Wallach Clarifies Historic Sports Gambling Ruling, CBS Houston, June 23, 2014

Quoted, U.S Supreme Court Mulls Sports-Betting Appeal, GamblingCompliance, June 19, 2014

Quoted, New Jersey Cites Support of Other States in Sports Betting Appeal, GamblingCompliance, June 2, 2014

Quoted, Lesniak Prepares Plan B for New Jersey Sports Betting, GamblingCompliance, May 23, 2014

Quoted, Deadline Looms in New Jersey’s Million-Dollar Batting Battle, GamblingCompliance, May 6, 2014

Quoted, New Jersey Sports Betting Lawsuit: The Saga Continues, Meadowlands Matters, April 22, 2014

Quoted, NJ Sports Betting Case Backed Up for Another Month, Meadowlands Matters, March 3, 2014

Quoted, Supreme Court the Next Stop in New Jersey Betting Battle, GamblingCompliance, February 19, 2014

Quoted, Details on New Jersey Filing a Sports Betting Appeal to U.S. Supreme Court, Meadowlands Matters, February 18, 2014

Quoted, Super Bowl Is In New Jersey But Not Of New Jersey, GamblingCompliance, January 31, 2014

Quoted, Supreme Court or Bust in NJ Sports-Betting Case, GamblingCompliance, November 18, 2013

Quoted, New Jersey Asks Appeals Court For Second Hearing on Sports Betting, GamblingCompliance, November 4, 2013

Quoted, Simulcast Dispute Comes to an End, Fort Lauderdale Sun-Sentinel, October 30, 2013

Quoted, New Jersey Mum on Sports-Betting Appeal, GamblingCompliance, October 9, 2013

Quoted, False Alarm in NJ Sports Betting Case, Meadowlands Matters, October 8, 2013

Quoted, The New Jersey Sports Betting Ruling Story, Meadowlands Matters, September 18, 2013

Quoted, Court Reverses Temple’s Religious Discrimination Dismissal, Fort Lauderdale Sun-Sentinel, September 12, 2013

Quoted, Synagogue’s Discrimination Case Sent Back to Miami Judge, Daily Business Review, August 30, 2013

Quoted, 11th Circ. Revives Temple’s Suit Against Fla. City, Law360, August 30, 2013

Interviewed, Q&A with Becker & Poliakoff’s Daniel Wallach, Law360, December 8, 2009

Interview, ABC News, March 19, 2015 (provided legal commentary on New Jersey sports betting controversy)

Interview, Bloomberg Law, SiriusXM Channel 113, March 18, 2015 (interviewed about appellate oral arguments in the New Jersey sports betting and O’Bannon appeals)

Interview, South Jersey Edition, 1400 WOND, March 17, 2015 (update on the New Jersey sports betting case)

Interview, Sports Talk w/ Craig & Chris, KWSN Sports Radio, Sioux Falls, South Dakota, February 26, 2015 (providing legal commentary on the Adrian Peterson federal court decision)

Interview, South Jersey Edition, 1400 WOND, February 20, 2015 (update on the New Jersey sports betting case)

Interview, Sports Talk w/ Craig & Chris, KWSN Sports Radio, Sioux Falls, South Dakota, February 6, 2015 (update on the Adrian Peterson case)

Interview, South Jersey Edition, 1400 WOND, February 3, 2015 (update on the New Jersey sports betting case)

Interview, Sports Talk w/ Craig & Chris, KWSN Sports Radio, Sioux Falls, South Dakota, December 15, 2014 (update on the Adrian Peterson case)

Interview, Sports Talk w/ Craig & Chris, KWSN Sports Radio, Sioux Falls, South Dakota, November 18, 2014 (providing legal commentary on NFL decision to suspend Adrian Peterson)

Interview, HuffPost Live, November 6, 2014 (providing legal commentary on Ray Rice appeal hearing)

Interview, Sports Talk w/ Craig & Chris, KWSN Sports Radio, Sioux Falls, South Dakota, November 3, 2014 (providing legal commentary on the Adrian Peterson plea bargain)

Interview, South Jersey Edition, 1400 WOND, October 31, 2014 (update on the New Jersey sports betting case)

Interview, South Jersey Edition, 1400 WOND, October 28, 2014 (update on the New Jersey sports betting case)

Interview, Bloomberg Law, SiriusXM Channel 113, October 24, 2014 (providing legal commentary on federal court decision in New Jersey sports betting case)

Interview, Sports Talk w/ Craig & Chris, KWSN Sports Radio, Sioux Falls, South Dakota, October 21, 2014 (update on the Adrian Peterson case)

Interview, Sports Talk w/ Craig & Chris, KWSN Sports Radio, Sioux Falls, South Dakota, October 8, 2014 (update on the Adrian Peterson case)

Interview, Sports Talk w/ Craig & Chris, KWSN Sports Radio, Sioux Falls, South Dakota, September 17, 2014 (providing legal analysis on criminal case against Adrian Peterson)

Interview, The Mike Heller Show, The Big 920 (Milwaukee, WI), September 11, 2014 (providing legal commentary on Ray Rice controversy)

Interview, WTOP News Radio, 103.5 FM, Washington, DC, September 10, 2014 (providing legal commentary on Ray Rice controversy)

Interview, Brady and Walker Show, SportsNet 590, Toronto, Canada, September 9, 2014 (providing legal commentary on the Ray Rice controversy)

Interview, Is Legalized Sports Gambling About to Grow and is the NBA Leading the Charge?, The Beat of Sports, Orlando, Florida, September 9, 2014

Interview, Brady and Walker Show, SportsNet 590, Toronto, Canada, August 20, 2014 (providing legal commentary on the Steve Moore-Todd Bertuzzi settlement)

Interview, Bloomberg Law, SiriusXM Channel 113, July 24, 2014 (providing legal commentary on the Donald Sterling probate court case)

Interview, The B-Straw and Pauly-G Show, Sports Radio 610, Houston, Texas, June 23, 2014 (providing legal commentary on the New Jersey sports betting case)


Wallach, Daniel L., Why NJ May Win 3rd Circ. Sports Betting Case, Law360, June 30, 2015

Wallach, Daniel L., “Exact Contours” is Key to NJ Sports Betting Appeal, Law360, Expert Commentary, February 18, 2015

Wallach, Daniel L., Possible Conflict of Interest on NJ Sports Betting Case, Law360, Expert Commentary, October 31, 2014

Wallach Daniel L., Judge Blocks N.J. Sports Betting—What’s Next?, Law360, Expert Commentary, October 29, 2014

Wallach, Daniel L., The Fallacy Behind NJ’s Sports Betting Strategy, Law360, Expert Commentary, September 17, 2014

Wallach, Daniel L., High Court Could Soon Review Federal Sports Betting Ban, Law360, Expert Commentary, May 21, 2014

“Deja vu Again” for NJ Sports Betting Appeal, Koz on Gaming, February 16, 2015

Federal Judge Blocks NJ Sports Betting: What’s Next?, Sports Law Blog, October 26, 2014

Leagues Seek Injunction Against NJ Sports Betting, Koz on Gaming, October 21, 2014

The Fallacy Behind NJ’s Sports Betting Strategy, Koz on Gaming, September 16, 2014