The NFL’s Position On Sports Betting In Delaware

We’ve obtained from NFL spokesman Greg Aiello a copy of the brief submitted by the NFL to the Delaware Supreme Court, and we’ve read all of it carefully. OK, we’ve skimmed all of it carefully. OK, we’ve skimmed most of it. OK, we’ve skimmed the first page and the last page. But we got the gist of it. Here’s the context. Delaware thinks that its proposed sports betting scheme will be more likely to withstand subsequent court challenges if Delaware gets its Supreme Court to sign off on the process before the sports betting scheme is launched. The league explains that it is opposing the Delaware sports betting scheme because "[s]ports lotteries threaten the integrity of NFL games and are grossly inconsistent with the values of the NFL.” Here are the league’s arguments, in a nutshell. First, the NFL contends that the question of whether sports gambling violates the Delaware Constitution is something that cannot be resolved easily or quickly. Article II, Section 17 of the Delaware Constitution permits only a lottery -- and a lottery is premised on chance, not skill. The league points out that, in past cases arising in other states involving the “chance” versus “skill” debate, decisions have been made based on the development of a significant “factual record” (i.e., hours of droning witnesses and acres of dead trees and other stuff on which informed decisions can be made, if the folks digesting the information can stay awake long enough to make a decision). Second, the NFL contends that the Delaware Supreme Court can’t offer a sufficiently binding and reliable opinion on whether the proposed sports betting scheme will violate federal law. In 1992, the U.S. government essentially slammed the door on the expansion of sports gambling, banning all such betting and exempting only those states that already had allowed sports wagering and those states that had done so at some point between 1976 and 1990. Delaware believes that a sports lottery game used for a brief time in 1976 fits within the exception to the federal law (and which failed miserably because gamblers were winning too consistently). But, as the NFL points out, there simply is no way for the Delaware Supreme Court to know what will happen if/when the feds decide to explore the proposed Delaware sports gambling initiative. Third, the NFL argues that the Delaware Supreme Court can determine prospectively that sports betting necessarily involves skill, and thus violates the Delaware Constitution. Frankly, we can’t imagine anyone taking the position that sports betting doesn’t involve skill. Some think the betting line is aimed at making the picking of a winner and a loser the equivalent of guessing whether a coin will come up heads or tails. In reality, the betting line is aimed at ensuring equal “action” on each team, with the bets canceling each other out and the house’s profit coming from the vigorish -- the eleventh dollar that is bet in order to win ten of them. So if a bettor possesses the ability to spot the situations in which the line is affected by the inaccurate perceptions of the masses, a bettor can push the odds in his or her favor by spotting those situations in which the line doesn’t reflect the realistic difference between the teams. Finally, the NFL argues that the potential validation of the sports betting scheme by the Delaware Supreme Court disrupts the balance of power among the executive, legislative, and judicial branch by giving the highest court in the state a role in the development of legislation that, typically, a court interprets and applies after the other two branches have made it law. Though we still aren’t sure whether the NFL should care about any of this, given that people are going to gamble regardless of whether it’s legal, we think that the NFL is right on this one. Sports betting is based on skill, and thus the proposed sports betting scheme would violate the Delaware Constitution.