Former U.S. Solicitor General Ted Olson, who successfully argued the Supreme Court case overturning the Professional and Amateur Sports Protection Act (PASPA), died last Wednesday at the age of 84. Olson’s work on the PASPA case laid the groundwork for the wave of sports betting expansion across the US and, indirectly, the online casinos that accompanied sportsbooks in some states.
In a press release from his Gibson Dunn law firm, Chair and Managing Partner Barbara Becker declared him to be, “a titan of the legal profession and one of the most extraordinary and eloquent advocates of our time.”
The release also noted Time named him one of the 100 most influential people in the world, and over his lifetime, he argued 65 cases before the Supreme Court, including the two Bush v. Gore cases arising out of the 2000 presidential election; Citizens United v. Federal Election Commission; Hollingsworth v. Perry, the case upholding the overturning of California’s Proposition 8 banning same-sex marriages; and U.S. Dept. of Homeland Security v. Regents of the University of California, successfully challenging the Trump Administration’s rescission of the Deferred Action for Childhood Arrivals (DACA) program.
Overturning PAPSA
In 2017, Olson argued on behalf of the state of New Jersey to challenge PAPSA, signed into law by President George H.W. Bush in 1992. The law banned states from regulating and taxing sports betting, save for in Nevada (where sports betting was legal) and in Oregon, Delaware, and Montana (where more limited sport betting was in effect).
The 6-3 Supreme Court decision, announced in May 2018, declared PAPSA unconstitutional, allowing New Jersey – which initially filed a federal lawsuit to overturn PAPSA in 2009 – to enact a sports betting law that voters initially approved in 2011. The state contended that the 10th Amendment, which reserves powers not delegated to the federal government to individual states, should apply to sports betting.
In its decision, New Jersey native Samuel Alito wrote for the Court’s majority, according to USA Today: “Congress can regulate sports gambling directly, but if it elects not to do so, each state is free to act on its own. Our job is to interpret the law Congress has enacted and decide whether it is consistent with the Constitution.”
“That’s the news every one of these states was waiting for,” sports and gambling law attorney Daniel Wallach told USA Today for another story on the decision. “Every one of these states’ legislative measures hinged on the finding of the Supreme Court that PASPA is unconstitutional. The ruling allows the states to legislate immediately and for all such laws to become effective immediately.”
Less than a month later, per the Washington Post’s coverage, Delaware became the first state to allow sports betting in the post-PAPSA era. By the end of the year, seven more states, including New Jersey, moved forward on sports betting legislation. Currently, 38 states plus the District of Columbia allow for some form of legal sports betting.
A challenge to tribal gaming
Olson was more recently involved in a case involving gaming in Washington state. Olson argued for Maverick Gaming, which filed a February 2022 lawsuit against two high-profile government officials, Gov. Jay Inslee and Attorney General Bob Ferguson, plus members of the Washington State Gambling Commission.
Maverick was attempting to challenge a 2020 Washington state law that legalized sports betting at tribal casinos and gaming facilities while keeping it illegal elsewhere in the state. Maverick, according to Law.com, contended that “state and federal officials favored the state’s ‘tribal gaming monopoly’” in its suit.
However, after the Shoalwater Bay Tribe filed a motion to dismiss the case in October 2022, a US District judge ruled in favor of the tribe. At the time, Ferguson declared the ruling to be a, “significant victory for tribal sovereignty.”
However, Olson pledged to take the case to the Ninth Circuit Court of Appeals, claiming, “The rule adopted by the court would entirely foreclose judicial review of any approval by the Secretary of the Interior of a tribal-state compact. Federal law does not allow tribes to insulate these federal actions from judicial scrutiny.”
Legal Sports Report, providing an update on the appeal in September 2023, noted, “The problem for Maverick is that as a sovereign entity, the Tribe needs to agree to be sued, which it has not done. The government argues that Maverick Gaming gets its characterization of the federal government’s interest in the case wrong and that it believes that the Shoalwater Bay Tribe did not waive its sovereign immunity.”
The article also noted that Olson likely intended the Ninth Circuit to be a stop on the way to the Supreme Court to make the ultimate case for Maverick.
