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Sports Injury Law

Sports are a pastime and are meant to be fun. Minor injuries can occur and are even inevitable in certain sports but serious injury caused by another person is a different story and may be grounds for a lawsuit.
If you have been injured by the actions of another player or a coach or a referee, you should first seek immediate medical attention. Then, depending on your situation, filing a lawsuit may be the appropriate next step for you. It is extremely important that the attorney you choose to handle your case is one who has handled sports injury cases before and is, therefore, familiar with this tricky area of the law.
Was it a contact or non-contact sport?
The general view of the courts is that sports are physical and sometimes dangerous and you are responsible for taking that risk. However, that doesn't mean another player or coach or referee cannot be held liable if you are seriously injured.
The standard in personal injury cases is negligence - if someone's negligence causes injury, they are liable. This is still the rule in non-contact sports. An example of a non-contact sport is tennis. If you were injured during a tennis match, then you would sue under a negligence theory - i.e. the player or coach was negligent in some way that caused your injury.
However, with contact sports, there is the contact sports exception (also known as the contact sports doctrine), which states that a person is only liable if their actions were intentional or willful and wanton. Contact sports include soccer, baseball and basketball. If physical contact is an expected part of the sport, then it qualifies as a contact sport. If you were injured while playing a contact sport and you believe that the injury was caused by another player's intentional actions, you would sue under the contact sports exception.
Proving it was intentional or willful or wanton
Proving that the defendant acted intentionally or recklessly will depend on the facts and other factors such as whether the action is what is acceptable or routine in that particular sport. For example, brushing into a player as they slide into home base is typical but tripping the player is not. The facts of your case and the range of normal activity in the particular sport you were playing will be used to prove intent.
Was it a full contact sport?
Full contact sports are another exception all their own. For these sports, the standard is intentional or completely beyond normal activity for that particular sport. Full contact sports include football, hockey and boxing, where physical contact is actually an element of the game. So, if you were seriously injured during a football game, you would have to prove that the defendant's actions were intentional or that the defendant's actions went completely beyond what is acceptable in that particular sport.
Was it caused by a non-participant?
It is believed that holding non-participants like a coach or a referee accountable for negligence would negatively affect the sport as a whole. Still, the standard is that these non-participants owe a duty to not harm others. Coaches are expected to provide instruction on safety and referees are expected to stop a game when they see a violation. If you believe a coach failed to provide safe instructions or if you believe a referee allowed a violation to continue that led to your injury, you may have grounds for a lawsuit. Again, it will depend on the facts of the case and the expectations of the particular sport.
Was your child hurt playing a sport?
If your child was injured while playing a sport at school or at another facility, the school, team, coach or facility may liable depending on the circumstances. If the playing field or area was not properly maintained, it could be a negligence issue. If, as noted above, the players were not properly supervised or the referees were not calling violations or another player intentionally harmed your child, you could have a case based on the above noted law. Either way, you should speak to an attorney as soon after your child receives medical attention.
Finding the right sports injury attorney
As with all areas of law, there are time limits to filing your case. You should contact an attorney as soon as possible to review your options.
This is certainly a niche area of the law and that is why it is important that you hire an attorney who knows it well and has successfully handled these types of cases. Call us. We know attorneys in your area who practice this type of law and we will be able to recommend the right attorney for your case.

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Sports Lawyers

Once upon a time, the most important aspect of sporting competition was winning; during the Ancient Greek Olympic Games, people would fight and people would die in pursuit of victory. A couple of hundred years ago, when mediocrity reigned supreme, taking part became the most important part of sport; losing was to be done gracefully and winning was to be magnanimously. Nowadays, with everything from fan club membership to players' salaries in the tens of millions, sport is a very different world from anything we have known before. In this new sporting world, it is neither the winning, nor the taking part that is most important; it's making a living that really counts.
Now we have entered the era of professional sports, people literally play sports for a living. Although winning might very well bolster their pay checks, nothing is more important to these people than being able to continue playing their sport day in and day out. After all, if they get injured and can't play, they're out of a job. For lots of professional sportspeople, for whom sport has made up the majority of their working lives, this can be devastating.
What's more, as talented as many sports people are, the simple truth behind professional sports is that it's not the skill of the players that keeps the money coming in; it's the advertising and merchandising opportunities that spectator sports offer which brings in the real money. Ticketing, branding, broadcasting and advertising are all major earners in the sporting world, just as they are in the business world. It's surprising then that many sportspeople don't realise how important it is to make sure all these elements are handled by a professional sports lawyer.
In exactly the same way you wouldn't put a lawyer on a football pitch and hope to win the World Cup, you shouldn't expect a footballer to handle the intricacies of sports law, contract rights and personal injury claims. Nowadays, with billions of pounds invested in sports, making money is the true name of the game and people will do anything to get one over on each other. The sorry truth for the players, therefore, is that it doesn't matter how passionate they are about their sport if they don't have the legal support required to handle the ever-more complicated world of professional sports.
Everybody from major celebrity sports personalities to small club players can very easily find themselves on the wrong side of a legal battle. Whether it's the rights to a multi-million pound advertising campaign, or seeking compensation for an unfair challenge that has left them unable to work, there is no longer anything simple about making a claim in a sporting context. These days, even the third referee isn't enough to ensure a fair call; with so many livelihoods at stake, professional sport has become the setting for some complicated and high profile legal cases.
Luckily, the legal world has kept up with the ever-changing sporting environment and sports law is now a whole area of expertise in its own right. For this reason, there really is no alternative than to seek out a qualified sports lawyer if you ever run into problems of a sporting nature. From injuries to commercial disputes, legal representation is a necessity if justice is to be served.

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How To Get A Good Sports Lawyer

Getting a competent and aggressive sports lawyer is important for you to reap maximum benefits of your talents or help your club advance with vigor. Make sure that the attorney is fully conversant with all aspects of sports laws in your practicing state, nationally and internationally to be able to represent you adequately. The worst time to look for the practitioner is when you need one because you will tend to rush to the nearest who might actually not be the best. Find a good attorney and remain prepared when you need him.
Conduct some background check first, to know how the attorney has been offering his services and for what period of time. Insist on seeing some of his previous works to assess his effectiveness. Reach to some of his past and present clients to find out how he offers his services and whether they are satisfied with how he handles them.
Insist on visiting his office to check on its organization. A good attorney should be able to depict smartness from both his personal appearance and office setting. While in the office, check for empty desks, sad staff, dirty surfaces and unanswered phone calls which could be indications of irresponsibility. Gather adequate information about his practice, successes and challenges.
Establish the type of staff that your attorney works with. Because you demand the best quality services from your attorney, make sure you are also given the staff qualifications to confirm they are equally competent. For example, the support staff should have strong legal background to work with you.
Move a step higher by checking the local sports law directory to establish the profile information of the practitioner in the region. This is a great chance for noting ratings of his legal work. Check whether information gotten from his office corresponds to what the directory indicates.
To know people and their personalities, it is important to ask others who work closely with them. Therefore, seek information from others that work closely with the attorney you intend to hire. Major information that might have escaped being put in the directory can be revealed at this point. For example, while the directory will just inform you of major characteristics, close friends will tell you about his personality. Remain objective to avoid being taken advantage of by friends who want to win you.
Ensure you discuss the cost of your services with the attorney to ensure you get the best value for money. Though you should not go for the lowest because offered services could equally be poorer, ensure to get the best in line with the prevailing market price. Do not forget to also agree on the method of payment that fits both of you.
Determine the method your sports lawyer uses to communicate to his clients. Insist that once you contract him, you would require frequent updates on all the issues relating to your sports. For example, if he is working out on a compensation plan for you by your local club, he should update you frequently on the progress.

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NJ Sports Betting Chances Boosted by Strong Response to TRO Motion; Oral Argument Likely

With an hourly rate of $1,800, Ted Olson may be the most expensive lawyer in the country. But, as his pedigree and track record prove (e.g., Bush v. Gore, Proposition 8, etc.), he is worth every penny. He demonstrated it again last evening with a masterful brief filed in opposition to the leagues' motion for a temporary restraining order and preliminary injunction. His persuasive and well-written brief (filed on behalf of Governor Christie) sets the stage for Judge Shipp to schedule oral argument tomorrow on whether a temporary restraining order should immediately issue against Monmouth Park Racetrack, which has announced plans to offer sports wagering to its patrons beginning this Sunday. Based on the strength of the response briefs (including those filed by the other New Jersey defendants), it also appears likely that Judge Shipp will also schedule a hearing for mid-November on the motion for preliminary injunction, which seeks an injunction of much longer duration than the temporary restraining order.

Here are the highlights of the New Jersey response (drawing mostly from Olson's brief) [to be updated periodically]:
  • Partial Repeal Expressly Permitted by Third Circuit Opinion 
In response to the leagues' argument that New Jersey's new legislation (a partial repeal of the sports betting ban, but limited to casinos and racetracks) is a "de facto authorization" of sports betting because casinos and racetracks remain subject to state licensing and regulation, Olson argues that New Jersey is doing precisely what the Third Circuit opinion allows. He writes that "[t]he 2014 Act's partial repeal of the State's prohibition on sports wagering tracks precisely what the Third Circuit held is permitted by PASPA. As the United States explained, under the Their Circuit's decision, PASPA permits States to repeal their prohibitions on sports wagering 'in whole or in part.' That is exactly what New Jersey has done." Olson adds that the Third Circuit opinion further specified that the New Jersey defendants "were permitted to specify what the exact contours of the prohibition [on sports wagering] will be." 
  •  Leagues & DOJ told Court in 2013 That Repeal Would be Legally Permissible
Olson also highlights prior statements made by United States Attorney Paul Fishman and league counsel Jeffrey Mishkin (at the Third Circuit oral argument) agreeing that a repeal would be permissible under ASPA. "In response to New Jersey's argument that PASPA violated the United States Constitution because it commandeered New Jersey's authority by effectively requiring it to maintain unwanted state-law prohibitions on sports wagering," Olson explained that "to save PASPA from that constitutional attack," the leagues and the DOJ "repeatedly conceded that PASPA does not require New Jersey to maintain its prohibitions on sports wagering." He notes that at oral argument before the Third Circuit, Mr. Fishman acknowledged that New Jersey "could" as a matter of law repeal its ban on sports wagering. Likewise, as Olson pointed out, league attorney Mishkin conceded that "nothing in PASPA requires states to enact, maintain, or enforce any prohibitions on sports gambling." Olson then adds this zinger (perhaps channeling judicial estoppel): "Having repeatedly urged this Court, and the Third Circuit, to adopt the view that PASPA does not prevent a State from repealing prohibitions against sports wagering, Plaintiffs cannot now be heard to complain when the New Jersey Legislature did exactly that."
  •  No "Equivalence" Between "Authorization" and "Repeal"
Addressing the leagues' argument that the partial repeal of the state-law ban on sports betting is a "de facto authorization," Olson points to language in the Third Circuit opinion holding that "there is no 'equivalence' between 'repeal and authorization' and that a repeal of prohibitions on sports wagering would not 'authorize by law' that activity." He adds that "Plaintiffs cannot have it both ways; either PASPA permits States to repeal their prohibitions against sports wagering in whole or in part, as does the 2014 Act, or PASPA unconstitutionally commandeers states authority by forcing States to maintain unwanted prohibitions."
  • Leagues' "All-or-Nothing" Approach Irreconcilable with Third Circuit Ruling
In response to the leagues' argument that the partial repeal is a "half-measure" (see, even Paul Clement quotes Breaking Bad) directed only at "state-authorized gambling venues," Olson writes that the league position is "flatly contradicted" by the Third Circuit's ruling, which explained that "States remain free to define the 'contours of the[ir] prohibition -- a holding that Plaintiffs tellingly fail to acknowledge." Olson maintains that "Plaintiffs' contrary contention that PASPA permits States only the choice of an absolute prohibition on all sports wagering or no prohibitions whatsoever on sports wagering is irreconcilable with the Third Circuit's ruling, the stated position of the United States, and common sense."
  • "Background Regulation" of Casinos & Racetracks Would Occur Under Full Repeal Too
Olson also takes aim at the leagues' argument that the partial repeal is a "de facto authorization"of sports betting because only state-licensed casinos and state-licensed racetracks are benefitted and they would remain subject to extensive state regulation, thereby enabling New Jersey to "regulate"sports betting, even if indirectly. Olson makes  two great points to counter that. First, he observes that this would still be true even under a "complete repeal" of the ban against sports wagering. Olson writes that "[i]f background regulation of other activities at casinos and racetracks constitutes an authorization of sports wagering, then even if a state were to take Plaintiffs' suggestion and repeal all laws against sports wagering, that background regulation, licensure and taxation of businesses still would violate PASPA (under Plaintiffs' interpretation). The choice between prohibiting sports betting and foregoing all regulation and taxation of businesses is not merely a 'hard' choice but is indeed 'no choice at all,' and therefore unconstitutional." Olson also challenges the leagues' assertion that only "state-licensed" venues are involved, pointing to language in the new law that also repeals prohibitions at 'former racetracks' which have been converted to other uses and are not regulated by the State Defendants at all." Those in the know speculate that one of the "former racetracks" that would house unregulated sports betting is Garden State Park, in Cherry Hill, NJ, right outside of Philadelphia).

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Georgia: Guilty until proven innocent? Please explain.

The University of Georgia is now requesting that the NCAA tell the university that its initial determination that Todd Gurley is ineligible for accepting money for signing autographs was clearly wrong.  

Here is how this rather curious process works as set forth in NCAA bylaws 14.10, 14.11, and 14.12.  First, it is the obligation of the university to immediately withhold an athlete from competition if the university determines that the athlete "is ineligible under the [NCAA’s] constitution, bylaws, or other regulations."  Then, after the university makes such a determination, if the university "concludes that the circumstances warrant restoration," it  may then appeal to the "Committee on Student-Athlete Reinstatement" for restoration of the athlete’s eligibility.  The Reinstatement Committee can then restore the athlete's eligibility only if, after reviewing the eligibility dispute, it decides that the "circumstances clearly warrant restoration."

Georgia decided that Gurley is ineligible under NCAA rules and is appealing its decision because (for some unreported reason) it now believes Gurley should NOT be ineligible; and Georgia must convince a reviewing committee made up of members selected by the NCAA that its determination of ineligibility was clearly wrong.  Why isn't the media demanding to know from Georgia the reason it now believes Gurley should not be ineligible?  Make Georgia tell us what has suddenly changed.  Did Georgia make the mistake of declaring Gurley ineligible without sufficient evidence that Gurley accepted money?  Is there new evidence that has surfaced suggesting that Gurley did not accept money?  Or is it simply because Gurley has "admitted his mistake"? 

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Leagues Seek Injunction Against NJ Sports Betting

On Tuesday, the four major professional sports leagues and the NCAA opened up a second front in their latest legal campaign against sports betting in New Jersey. The leagues had filed suit on Monday in response to the enactment of Senate Bill 2460, the new law signed by Governor Christie partially repealing the state-law ban against sports betting (but only for casinos and racetracks). On Tuesday, the leagues filed a motion for a temporary restraining order and preliminary injunction to prevent Monmouth Park Racetrack from proceeding with its previously-announced plans to offer sports wagering beginning this Sunday (in reliance on that new law).

In short, the leagues are seeking two basic forms of relief: (1) a temporary restraining order to maintain the status quo (e.g., no sports betting anywhere in New Jersey) pending a determination on the merits of the leagues' motion for a preliminary injunction; and (2) following a hearing, the entry of a preliminary injunction enjoining all of the New Jersey defendants (e.g., Governor Christie, the NJ Division of Gaming Enforcement, the NJ Racing Commission, the NJ Thoroughbred Horsemen's Authority, and the NJ Sports and Exposition Authority) from "sponsoring, operating, advertising, promoting, licensing, authorizing, or otherwise permitting" sports wagering in any Atlantic City casino or any New Jersey racetrack during the pendency of the action (in other words, until the case is over).

With apologies (but no royalties) to hockey columnist extraordinaire Elliotte Friedman (whose "30 Thoughts" column is a must-read for NHL fans), here are my "21" preliminary thoughts on today's court filing and how it may play out:
  1. Why ask for both a "temporary restraining order" and a "preliminary injunction"? Aren't they basically the same thing? While they are similar remedies, they serve different purposes. A temporary restraining order preserves the status quo until a preliminary injunction hearing can be held, while a preliminary injunction preserves the status quo pending a full trial on the merits. The main difference is their timing and duration. A temporary restraining order is typically issued first and remains in effect through the preliminary injunction hearing, and then would be replaced by a preliminary injunction for the balance of the case (unless, of course, the motion for preliminary injunction is denied). If the motion for a preliminary injunction is denied, then the temporary restraining order is dissolved.
  2. What must the leagues prove in order to obtain either a temporary restraining order or preliminary injunction? With one not-too-minor exception (discussed in the next point), the requirements are the same for each. The leagues must show that: (a) they have a "reasonable probability of success" on the merits; (b) they will suffer "irreparable harm" if sports betting were to occur in New Jersey; (c) that the harm to the leagues "outweighs" any harm that would be suffered by the New Jersey defendants if an injunction were entered; and (d) that the "public interest" favors such relief.
  3. A party seeking a temporary restraining order must also show an "immediate" irreparable injury. Here, the leagues point to the fact that Monmouth Park Racetrack has stated its intention to start offering sports betting on Sunday, October 26th, only four days from now. That seems pretty immediate to me.
  4. What does a "reasonable probability of success on the merits" mean? For one thing, it does not mean that the leagues have to prove their entire case with certainty. Nor does it require the leagues to demonstrate a mathematical probability of success on the merits, such as greater than 50 percent. Rather, the leagues need only show a "fair chance" of prevailing after discovery and a full trial.  This is a relatively low bar. Of course, the New Jersey defendants will counter that by arguing that a preliminarily injunction is an extraordinary remedy that should sparingly be granted.
  5. So, what are the leagues' arguments "on the merits"? They make three separate arguments, any one of which (if proven) would support an injunction. First, the leagues argue that the new law violates PASPA. Although styled as a "repeal," the leagues assert that this is "just word play." They point to the fact that the repeal is conveniently limited to state-licensed casinos and state-licensed racetracks, which remain subject to extensive regulation by the State. The leagues argue that "[b]y repealing existing prohibitions only at these 'closely' 'State-regulated' venues, New Jersey has accomplished exactly what this Court already has concluded that federal law prohibits it from doing: authorizing sports gambling that is licensed and regulated by the State." In a prior post, I explained the myriad ways that the States could regulate sports books indirectly.
  6. As a second "merits" argument, the leagues invoke the New Jersey Constitution. They argue that even if the new law "is really nothing more than the 'repeal' that it purports to be," then it violates Article IV, Section 7 of the New Jersey Constitution, which states that no gambling may be conducted in the State "unless it has been authorized by law by the Legislature." Thus, the leagues maintain, "under the clear provisions of the New Jersey Constitution, the Legislature and the governor are powerless to permit any form of gambling in Atlantic City casinos unless it is specifically 'authorized by law.'" Under this line of reasoning, a "repeal" of a ban on sports wagering cannot logically be an "authorization" of sports betting. Thus, the leagues are trying to box New Jersey into a corner: if the new law is a de facto authorization of sports betting, it violates PASPA's prohibition against state-authorized sports betting. But, if it is a "repeal" (rather than an authorization), then it violates the New Jersey Constitution.  Look for New Jersey to counter this by arguing that the leagues, none of which are citizens of New Jersey, lack standing to asset the New Jersey Constitution as basis for challenging the validity of the new law.  (Thanks to Tony Batt of Gambling Compliance for tipping me off to that argument. He's been around this case long enough to have earned an honorary degree in constitutional law).
  7. The leagues' third argument on the "merits" focuses on the state's alleged ownership of Monmouth Park Racetrack, where sports betting is slated to begin on October 26th. The leagues argue that Monmouth Park is a "governmental entity' (and thus subject to PASPA) because it is owned and operated by the New Jersey Sports and Exposition Authority ("NJSEA"), which, quoting directly from N.J. Stat. Ann. 5:10-4(a), the leagues characterize as a "legislatively created 'instrumentality of the State exercising public and essential governmental functions" and whose revenues "shall be deemed and held to be applied in support of government." Thus, based on the state's alleged ownership of Monmouth Park, the Leagues argue that any sports wagering conducted at Monmouth Park "would violate the provisions of PASPA that prohibit a State from directly sponsoring, operating, or advertising sports wagering." (emphasis added) 
  8. There seems to be some dispute dispute as to whether Monmouth Park Racetrack is really "state-owned." John Brennan (the sports business reporter for The Bergen Record and the editor of the awesome Meadowlands Matters blog, and who has been covering this case for several years) is under the impression the state may no longer own Monmouth Park Racetrack. In an exclusive interview with Sports Law Blog, Brennan explained that the state owned Monmouth Park "from the mid-1980's until around 2011." He said that "the state thoroughbred horsemen [a private trade association] now manages, maintains, and operates [the track]. The state owns the land, but I’m not clear on what ‘owns’ means in the context of this lawsuit." Brennan further elaborated that "the horsemen, not the sports authority, pay the annual real estate taxes to the borough of Oceanport, for instance. Also, via a referendum, three bills passed by the legislature, and the signing of two of them into law by Governor Christie, it’s clear that the state is eager for Monmouth Park to be able to offer such betting. If the only obstacle toward that wound up being the NJSEA land ownership issue, it’s fair to assume that the state would sell that land to the horsemen in a New York minute.”
  9. On the issue of "irreparable harm," the leagues point to Judge Shipp's February 28, 2013 Order which granted a permanent injunction to the leagues based upon a specific finding of "irreparable harm." In that order, Judge Shipp wrote that the spread of sports gambling "would engender the very ills that PASPA sought to combat." The leagues also cite an earlier order by Judge Shipp concluding that the injury suffered by the leagues is "the negative effect" that state-sanctioned sports betting on their own games "would have upon the perception of [their] games and their relationship with their fans." The leagues also note that the Third Circuit agreed with Judge Shipp on this point, finding that there is a "proven stigmatizing effect of having sporting contests associated with gambling, a link that is confirmed by commonsense and Congress' own conclusions in PASPA." The leagues clearly believe that this essential element of injunctive relief is already in the "win" column based on the prior judicial rulings.
  10. But a lot has changed over the past 18 months. At the recent Bloomberg Sports Business Summit, NBA Commissioner Adam Silver proclaimed that expanded legal sports betting was ‘inevitable” and that the league would “ultimately participate in that.” Around the same time, the NBA lifted its ban against teams selling sponsorships to daily fantasy sports operators, reasoning that such a move would open up new streams of revenue and “increase connectivity to fans." With Commissioner Silver's comments (suggesting that the leagues' acquiescence on sports betting is available for "the right price") and the NBA's recent embrace of daily fantasy sports leagues – which some have characterized as akin to sports betting – can the leagues genuinely say that they would be "irreparably harmed" if legal sports wagering were to take place in New Jersey? It seems like a suspect argument in light of recent events. Expect the New Jersey defendants to seize upon this hypocrisy in tonight's expected response.
  11. There is an expedited briefing schedule. Judge Shipp has ordered the New Jersey defendants to file a response to the leagues' motion by October 22nd (which is today!), and the leagues must file their reply brief one day later. The motion will thus be fully briefed by Thursday. 
  12. Judge Shipp has not yet decided whether he will hear oral argument on the leagues' motion. A docket notation entered on PACER yesterday states that "[f]ollowing review of the papers, the Court will advise as to whether it will hear oral argument on the application. If the Court elects to hear oral argument on the application, it will issue a text order that sets forth the date and time of the oral argument."
  13. I believe that the decision on whether to hold oral argument will be made by Judge Shipp on Thursday (after reviewing New Jersey's response to the motion). Based on his past rulings in this case, I fully expect Judge Shipp to conduct a hearing on the leagues' motion. Virtually every important motion in this case, including the recently-withdrawn motion for clarification and/or modification of the existing injunction (which was not particularly strong), was scheduled for oral argument. This one should be no exception. But the Court is not required to hold oral argument. Hearings are required on motions for preliminary injunctions only when there are disputed factual issues. If the material facts are not in dispute, then a hearing is not required. While the issues involving PASPA and the New Jersey Constitution do not appear to be intensely factual, the same cannot be said about the issue regarding the ownership status of Monmouth Park. It appears as if that argument will present a factual dispute for a hearing.
  14. Look for Judge Shipp to eventually schedule two types of hearings. He will likely schedule oral argument for this Friday on the issue of whether a temporary restraining order should be entered. That order will probably come down on Thursday. Judge Shipp will likely also schedule a second hearing -- probably for mid-November -- on whether a preliminary injunction for the duration of the case should be entered. 
  15. Now the big question? Will there be sports betting at Monmouth Park on Sunday? In a word, no. Judge Shipp will likely issue a temporary restraining order against the New Jersey defendants on Friday (following oral argument) for the purpose of preserving the status quo until the motion for preliminary injunction can be heard in mid-November (or perhaps later). This means there will likely be no sports betting at Monmouth Park Racetrack on Sunday, or at any time thereafter until the court decides the preliminary injunction motion.
  16. If the Court grants a TRO, the leagues will be required to post a bond to protect New Jersey against any losses that would result from the injunction being improvidently issued. Federal Rule of Civil Procedure 65 provides that "[n]o restraining order or preliminary injunction shall issue except upon the giving of security by the applicant, in such sum as the court deems proper, for the payment of such costs damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained." This bond requirement is designed to protect the enjoined party's interests in the event that future proceedings show the injunction was issued wrongfully. See Edgar v. MITE Corp., 457 U.S. 624, 649 (1982) (Stevens, J., concurring) ("Since a preliminary injunction may be granted on a mere probability of success on the merits, generally the moving party must demonstrate confidence in his legal position by posting a bond in an amount sufficient to protect his advisory from loss in the event that future proceedings provide that the injunction issued wrongfully.")
  17. What would be the amount of an appropriate bond here? Whatever it is, the leagues will surely be able to afford it. But I'm not sure that the State or any of its political leaders would be able to show "losses" resulting from a wrongly-issued injunction. After all, the State would not be deprived of taxes on sports betting revenues, as such activity would presumably be unregulated and untaxed under the new repeal law. Would New Jersey be so bold as to argue that it would suffer a diminution in tax payments on other gaming revenues (e.g., casino games and horse races) if sports betting were enjoined by virtue of the fact that sports books in casinos and racetracks are expected to bolster attendance and increase wagering on casino games, poker, and horse racing. Seems like a dangerous argument to make, as well as speculative (given the lack of a prior track record).
  18. Monmouth Park would be in a much better position to argue for a bond, since it is presumably a "private enterprise" (although the leagues would dispute that). The losses that Monmouth Park would suffer from a wrongly-issued injunction would consist primarily of its lost gaming revenues (from both sports betting and horse racing) multiplied by the number of days that the preliminary injunction would remain in effect (e.g., more than one year). Since early forecasts were that legal sports betting in New Jersey would generate an estimated $1 billion in bets for the first year (and Monmouth Park would be one of only a handful of gaming operators allowed to operate sports books), Monmouth Park could realistically ask for an eight-figure bond.
  19. I love how the leagues refer to sports betting in their legal papers as "sports gambling" in an effort to make it sound more sinister and nefarious. 
  20. Does anyone else find it a little too convenient that the New Jersey Attorney General held a press conference announcing the arrests of three persons on racketeering charges for operating a lucrative sports betting ring on the same day that the leagues filed their motion for temporary restraining order and preliminary injunction? According to a NJ.com article, Acting Attorney General John J. Hoffman said today that "the takedown of a lucrative sports betting operation by the notorious Genovese crime family serves as a prime example of why the state should allow residents to place such wagers legally." Message to Judge Shipp delivered!
  21. I am not very good at math. In an ESPN.com article, I was quoted as saying that Monmouth Park Racetrack has a "zero percent chance" of taking sports bets on Sunday. One of my Twitter followers (up to 413!) advised me to "stay away from options trading [since] nothing is ever 0% or 100% probability in a marketplace."

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Leagues Move to Block NJ Sports Betting; Injunction Likely

As I predicted correctly (for the most part) over the weekend, the four major professional sports leagues and the NCAA responded on Monday to New Jersey's latest effort to bring legal sports betting to the Garden State. On Friday, New Jersey Governor Chris Christie signed legislation partially repealing the state-law prohibition against sports betting (but only for casinos and racetracks), thereby paving the way for deregulated (and legal) sports betting to commence on October 26th at Monmouth Park Racetrack. In a post on Saturday, I predicted that the leagues would fight back. And fight back they did. But, instead of moving for a preliminary injunction in the existing federal court action (which is what I predicted would occur), the leagues opted to file a brand new lawsuit in the same court. I suspect that the leagues went this route because the New Jersey Sports and Exposition Authority (the alleged owner of Monmouth Park Racetrack, where sports betting is slated to start this Sunday) was not a party to the prior lawsuit. Thus, a new lawsuit was needed to properly exercise jurisdiction over Monmouth Park Racetrack.

Accusing New Jersey of acting "in defiance of this Court's February 28, 2013 Order [permanently enjoining New Jersey officials from authorizing, licensing or regulating sports betting] and in clear violation of federal law," the leagues immediately take aim at the "label" used by New Jersey in describing the new law. The leagues assert that while the new law is "styled as a repeal," in reality, it "is nothing more than a de facto authorization of sports gambling," pointing to the fact that the repeal is limited to state-licensed casinos and state-licensed racetracks, which remain subject to extensive regulation by the State. Therefore, despite its facial "repeal" language, the leagues argue that the new law "is a blatant attempt to by the State to sponsor, operate, advertise, promote, license, and/or authorize sports gambling in Atlantic City casinos and New Jersey racetracks," in violation of PASPA. Alternatively, the leagues argue that even if the new law "is really nothing more than the 'repeal' that it purports to be," then it violates the New Jersey Constitution, which requires any gambling to be "specifically authorized" by the New Jersey Legislature. By definition, a "repeal" of a ban on sports wagering is not an "authorization" of same.

Even though the Complaint asks for an injunction, the leagues would still need to file a motion for a preliminary injunction in order to prevent Monmouth Park Racetrack from proceeding with its plans to offer sports betting on Sunday. A complaint, by itself, would not accomplish that in the short term. In federal court, defendants are given 21 days to answer a complaint. By the time Governor Christie and the other New Jersey defendants get around to responding to the complaint, sports betting will have already started at Monmouth Park and it may then be too late to put the genie back in the bottle. Therefore, the leagues would need to file a formal request for judicial intervention (which lawyers call a "motion") in order to put an immediate halt to those plans. Specifically, I expect the leagues to file an emergency motion for a temporary restraining order and/or preliminary injunction within the next day or two. The leagues will ask Judge Shipp (to whom both cases are assigned) to enter a temporary restraining order immediately and on an ex parte basis in order to prevent Monmouth Park from commencing its sports betting operation on Sunday. The temporary restraining order would essentially maintain the status quo (e.g., no sports betting in New Jersey) until such time as the court can conduct a hearing on the motion for preliminary injunction (which would probably be in mid-to-late November). I expect Judge Shipp to sign such an order later this week, which would prevent Monmouth Park from offering any sports betting, effective immediately.

The leagues would likely find Judge Shipp to be a very receptive audience since he previously ruled in their favor. Moreover, Judge Shipp made several rulings earlier in the case that are likely to influence any new ruling. For example, in his February 28, 2013 order granting summary judgment in favor of the leagues and permanently enjoining New Jersey from implementing its sports betting law, Judge Shipp held that the leagues would suffer "irreparable harm" in the form of a "reputational injury" through the unwanted association with gambling and from fans' negative perceptions that the outcomes of games may be rigged. In that same ruling, he also held that there was an "inadequate remedy at law" because New Jersey, by operation of the Eleventh Amendment, would not be liable for monetary damages. Judge Shipp also held that the entry of a permanent injunction against New Jersey would serve the "public interest." Each of these prior findings would bear directly on any new motion for preliminary injunction filed by the leagues since the same considerations are at play. Since Judge Shipp has already ruled in the leagues' favor on these issues, I would expect him to do so again. Thus, the leagues' entitlement to a preliminary injunction will likely come down to whether they can establish a "probability of success on the merits," since each of the other elements required for an injunction (e.g., irreparable harm, balancing of the harms, and the public interest) will almost assuredly be decided in the leagues' favor based on Judge Shipp's prior rulings.

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