NFL asks Del. SC to stop sports betting

By John O'Brien | May 13, 2009

DOVER, Del. (Legal Newsline) - The National Football League does not want the State of Delaware to allow betting on sports and has asked the state Supreme Court to block the proposed law.

A bill that will allow Delaware to become the fourth state to permit betting on sports is awaiting only the signature of Gov. Jack Markell, who had also petitioned the state Supreme Court to hear arguments on it. Those arguments are scheduled for May 21.

"Regardless of whether the justices decide to adopt the 'pure chance' or 'chance as a dominant factor' rule (or some variation), in order to even begin the debate about whether a particular sports lottery game meets the applicable rule and is therefore constitutional, this Court must necessarily inquire into the particulars of the game being proposed," wrote Kenneth Nachbar of Morris Nichols Arsht & Tunnell in Wilmington, Del.

The NFL wants the Court to hold the legislation to a "clear standards" test concerning how it woud work.

"In doing so, the Court will help protect the integrity of the Legislature and the legislative process," the brief says. "Otherwise, legislators can avoid taking political responsibility for the implementation of a form of sports betting that may prove illegal, unconstitutional, unprofitable or unpopular -- at the expense of the institutional stature of the Legislature."

Still, should the justices consider the constitutionality of a sports betting program, they should find it to be unconstitutional, the brief adds.

It cites a West Virginia Supreme Court case in which the Court invalidated a video lottery game because the Legislature failed "to provide a clear standard or definition for the form and operation of this type of game."

The first Delaware betting bill was similar to the West Virginia statute, the brief says, "because, although it provided the Director (of the state's Lottery Commission) legal authority to establish a sports lottery, it failed to provide a clear standard to guide the Director's otherwise 'unbridled or uncontrolled authority' to design the form of the sports betting scheme.'"

Nevada, Oregon and Montana already allow sports betting.

From Legal Newsline: Reach John O'Brien by e-mail at john@legalnewsline.com.

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