United States: Supreme Court To Decide Future Of Sports Betting: Implications For Tribal Casinos

 The Supreme Court's forthcoming decision in Christie v. National Collegiate Athletic Association (Nos. 16-476, 16-477) will have profound implications for sports betting in the United States and will potentially open the door to such betting in tribal casinos across the country. The case presents New Jersey's challenge to the constitutionality of the Professional and Amateur Sports Protection Act ("PASPA"), a federal law enacted in 1992 to prohibit states and tribes from sponsoring or authorizing any form of sports wagering, while grandfathering the handful of states that allowed such gaming at the time of PASPA's enactment. Several news outlets and legal commentators have noted that the Court appeared skeptical of PASPA's constitutionality at the December 4, 2017, oral argument, and many states have taken steps in anticipation that the Court will hold PASPA unconstitutional.1 Since the oral argument, online betting markets on the decision have given New Jersey more than an 80 percent chance of prevailing.2 This alert analyzes the implications for tribal casinos if the Court strikes down PASPA.

At the outset, it is important to note that the Court's ruling would simply restore to states and tribes the authority that PASPA had taken away from them, but would not actually authorize sports betting anywhere in the country. Any tribal sports-betting operation would be governed by the Indian Gaming Regulatory Act ("IGRA"), the 1988 federal law that governs tribal gaming. As discussed below, however, there are a number of important issues that remain unsettled under IGRA—and a renewed interest in sports betting could engender litigation to resolve them.

Generally speaking, IGRA allows a tribe to conduct commercial gaming operations if "such gaming" is permitted in its home state and the tribe meets other federal requirements that vary based on whether the gaming constitutes class II or class III gaming under IGRA.3 But when a state permits only certain kinds of gaming, courts have not uniformly agreed on how broadly a tribe may engage in other, related gaming. Although IGRA clearly authorizes the tribe to engage in the same forms of the same games permitted under state law, it is less clear whether the tribe may also conduct other forms of the same games or even other kinds of games within the same IGRA class.

Accordingly, a threshold question is whether particular forms of sports betting would qualify as class II or class III gaming under IGRA. While most traditional sports betting would likely be treated as class III gaming, other forms could potentially be considered class II, and the classification of gaming is still a developing area of law. If the state does not permit any gaming of that class, tribes will not be permitted to conduct it. If the state permits only limited kinds of gaming within that class, then tribes will clearly be permitted to conduct at least the specific forms of gaming (including sports gaming) that their home states authorize. In addition, tribes have arguments that they should be entitled to conduct any form of sports betting in states that allow other forms of class III gaming—though this too is still a developing area of law and likely to be the subject of future litigation, particularly if states attempt to limit the forms of sports betting they authorize.

In states where IGRA permits tribes to conduct sports gaming, tribes will also have to satisfy other federal requirements for class II or class III gaming. The difference is important: IGRA subjects class II gaming only to federal oversight, not state regulation, but generally permits class III gaming only pursuant to gaming compacts negotiated between tribes and their home states. Although states vary in how they negotiate and execute gaming compacts with tribes, all states are subject to IGRA's requirement that they conduct such negotiations "in good faith"—a mandate that tribes have successfully enforced against some recalcitrant states in federal court to obtain alternative terms issued by the Secretary of the Interior that permit class III gaming operations.

Finally, states and tribes that have negotiated provisions in existing compacts granting tribes exclusive gaming rights in defined areas will need to ensure that newly authorized sports wagering does not run afoul of those exclusivity provisions.

I. Professional and Amateur Sports Protection Act in Christie

The key provision of PASPA before the Supreme Court is 28 U.S.C. § 3702, which provides:

It shall be unlawful for—

(1) a governmental entity to sponsor, operate, advertise, promote, license, or authorize by law or compact, or

(2) a person to sponsor, operate, advertise, or promote, pursuant to the law or compact of a governmental entity,

a lottery, sweepstakes, or other betting, gambling, or wagering scheme based ... on one or more competitive games in which amateur or professional athletes participate, or are intended to participate, or on one or more performances of such athletes in such games.4

PASPA defines "governmental entity" to include states and their political subdivisions, as well as Indian tribes.5

In Christie, New Jersey has primarily challenged Section 3702(1), but has argued that Section 3702(2) is also unconstitutional because, in prohibiting individuals from sponsoring or operating sports wagering "pursuant to" state law, it is textually tethered to Section 3702(1).6 Defenders of PASPA—including the major sports leagues and the United States—have argued that, even if Section 3702(1) is held unconstitutional, Section 3702(2) should survive, which could effectively prohibit sports betting outside of the three grandfathered states.7

It remains to be seen how the Supreme Court will approach Section 3702(2) if it invalidates Section 3702(1). If Section 3702(2) survives, it may have the same effect as PASPA does now by prohibiting individuals from operating sports wagering "pursuant to" any law a state might pass if Section 3702(1) were invalidated. However, it is certainly possible that if the Court finds any portion of Section 3702 unconstitutional, it will invalidate both Sections 3702(1) and (2), thereby allowing states to authorize sports betting and individuals to participate. The remainder of this alert proceeds on the assumption that the Court invalidates the entirety of Section 3702.

II. Considerations Under the Indian Gaming Regulatory Act

A ruling that invalidates Section 3702 would open the door for states to authorize sports wagering. For tribes, however, lifting of the federal ban on sports wagering would be only the first step. Tribes would still need to meet the requirements of IGRA to conduct sports wagering on Indian lands.

A. Class II or Class III Gaming Classification

IGRA imposes different requirements for gaming that vary based on the three classes of gaming that IGRA defines.8 Class I gaming includes social games for minimal prizes.9 Class II gaming encompasses bingo-like games, including pull-tabs and non-banking card games, in which players bet against and settle with each other, rather than betting against and settling with the house.10 IGRA deems "all forms of gaming that are not class I gaming or class II gaming" to be class III gaming.11

Traditional sports wagering would likely qualify as class III gaming insofar as it is not a social game for minimal prizes, a bingo-like game, or an unbanked card game. Indeed, the National Indian Gaming Commission ("NIGC") has expressly defined class III gaming to include "[a]ny sports betting and parimutuel wagering."12 The NIGC's Office of General Counsel has also advised gaming operators that "sports betting ... is a Class III form of gaming."13

Whether all forms of sports wagering would be considered class III gaming, however, has not been conclusively resolved. Montana, for example, currently authorizes sports pools and sports tab games, which are non-banked games in which players bet against and settle with each other, not a traditional sportsbook.14 Such games might ultimately be deemed class III gaming because the NIGC's regulation does not expressly exempt any form of "sports betting" from its definition of class III gaming and deems parimutuel wagering class III gaming even though players bet among themselves,15 and the NIGC's Office of General Counsel has concluded that at least one form of sports betting in which "players compete against other players" constitutes class III gaming.16 But the NIGC's position has not been litigated, and the law on sports wagering is still developing.

Download >>Supreme Court to Decide Future of Sports Betting: Implications for Tribal Casinos


 1 See Adam Edelman, Cash-hungry states betting Supreme Court will legalize sports gambling, NBC News, Feb. 12, 2018, available at https://www.nbcnews.com/politics/politics-news/cash-hungry-states-betting-supreme-court-will-legalize-sports-gambling-n846676; Robert Barnes, N.J. argues that it can legalize sports betting, and Supreme Court seems to agree, Washington Post, Dec. 4, 2017, available at https://www.washingtonpost.com/politics/courts_law/nj-argues-that-it-can-legalize-sports-betting-and-supreme-court-seems-to-agree/2017/12/04/25410ae6-d92c-11e7-a841-2066faf731ef_story.html?utm_term=.022c7baa579e; Amy Howe, Argument analysis: Justices seem to side with state on sports betting, Scotusblog, Dec. 4, 2017, available at http://www.scotusblog.com/2017/12/argument-analysis-justices-seem-side-state-sports-betting.

2 See Ryan Rodenberg, How to Speculate—With Real Money—on the Supreme Court Sports Betting Case, Sportshandle.com, Feb. 7, 2018, available at https://sportshandle.com/supreme-court-sports-betting-speculate-real-money.

3 25 U.S.C. §§ 2710(b)(1)(A), (d)(1)(B).

4 28 U.S.C. § 3702.

5 Id. § 3701(2) (citing 25 U.S.C. § 2703(5)).

6 Pet. Br. at 20, 55-56.

7 Resp. Br. at 21, 53-59; U.S. Amicus Curiae Br. at 31-33.

8 See 25 U.S.C. §§ 2703, 2710.

9 Id. § 2703(6).

10 Id. § 2703(7).

11 Id. § 2703(8).

12 25 C.F.R. § 502.4(c).

13 Kevin K. Washburn, General Counsel, NIGC, to Joseph M. Speck, Nic-A-Bob Productions, NIGC Game Classification on WIN Sports Betting Game, p. 2 (Mar. 13, 2001), available at https://www.nigc.gov/images/uploads/game-opinions/WIN%20Sports%20Betting%20Game-Class%20III.pdf.

14 See Mont. Code § 23-5-503; see also Montana Department of Justice, Gambling Control Division, Gambling Laws, available at https://dojmt.gov/gaming/gambling-laws-administrative-rules.

15 25 C.F.R. § 502.4(c).

16 Washburn to Speck, supra, p. 2.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Lewis Roca Rothgerber Christie LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Lewis Roca Rothgerber Christie LLP
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions