By Ryan M. Rodenberg
The Professional and Amateur Sports Protection Act (“PASPA”), a federal statute banning state-sponsored sports gambling nationwide except in Nevada, Delaware, Oregon, and Montana, celebrated its twentieth anniversary on October 28, 2012. If New Jersey voters and the state’s governor have their way, PASPA will not reach its twenty-first birthday. On January 17, 2012, New Jersey Governor Chris Christie signed into law a voter-approved referendum to amend the state’s constitution and permit regulated gambling on sports. The referendum was a direct affront to PASPA and in clear conflict with the statute’s prohibitive language. Governor Christie acknowledged the obvious conflict in a subsequent press conference and all but invited a legal challenge:
We intend to go forward and allow sports gambling to happen . . . . [A]m I expecting that there may be some legal action taken against us to try to prevent it? Yes. But that’s going to be their burden to try to prevent it . . . . We may have to go through some litigation to get there . . . but I think we’re going to be successful.
The National Collegiate Athletic Association (“NCAA”), National Basketball Association (“NBA”), National Football League (“NFL”), National Hockey League (“NHL”), and Major League Baseball (“MLB”) accepted the governor’s invitation to litigate. The quintet of plaintiffs, all specifically deputized under PASPA to enforce the terms of the statute, filed suit in the U.S. District Court for the District of New Jersey on August 7, 2012, seeking declaratory and injunctive relief. In their complaint in NCAA v. Christie, the plaintiffs alleged:
Sports gambling in New Jersey would irreparably harm amateur and professional sports by fostering suspicion that individual plays and final scores of games may have been influenced by factors other than honest athletic competition. As Congress recognized when it enacted PASPA, the proliferation of sports gambling threatens to harm the reputation and goodwill of Plaintiffs, and to adversely affect the way the public views amateur and professional sports.
The impetus for PASPA is well documented. Congress surmised that betting on sports was “. . .undermin[ing] public confidence in the character of professional and amateur sports . . . [and] promot[ing] gambling among our Nation’s young people.” Then-New Jersey Senator Bill Bradley, a former NBA player for the New York Knicks, set forth other reasons supporting PASPA: “If the dangers of state sponsored sports betting are not confronted, the character of sports and youngsters’ view of them could be seriously threatened . . . . Legalizing sports gambling would aggravate the problems associated with gambling. As a society, we cannot afford this result.”
Integrity-laden discussions in connection with sports corruption speak to a wider narrative than mere sports gambling, however. Sports are distinguishable from other forms of entertainment. In a case pertaining to the ownership of real-time sports data under copyright law, the U.S. Court of Appeals for the Second Circuit, in dicta, observed that, “[u]nlike movies, plays, television programs, or operas, athletic events are competitive and have no underlying script.” In other words, the ultimate outcome of sporting events is, presumably, uncertain. Such uncertainty of outcome is often described synonymously as competitive purity, sporting legitimacy, and honest athletic competition. Researchers have empirically tested the extent to which uncertainty of outcome is attractive to sports leagues, broadcasters, and consumers, including gauging suspense as a predictor of viewer enjoyment and advertising effectiveness. Gambling-related corruption in the form of microlevel spot fixing, point shaving, or outright match-fixing undoubtedly runs counter to the perception of uncertain outcomes in sports. Outcome uncertainty is also impacted by manipulation completely unrelated to gambling. The “convergence of sports and entertainment” was detailed in Money Games by David M. Carter, a book that included glowing testimonials from NBA Commissioner Stern and MLB Commissioner Selig referencing the blurred line between sports and noncompetitive scripted entertainment.
Gambling-related corruption in sports is barred at the federal level by the Sports Bribery Act of 1964. In contrast, corruption unrelated to gambling is not explicitly banned. Such absence is problematic. Due to the “peculiar economics” of sports,commercialized sporting events are unique in that “[u]nlike most economic contests, demand arises more from interest in observation of the contest itself (e.g. a race or a match) than in the outcome of the contest.” Working in concert with affiliated referees, coaches, players, facility personnel, commercial sponsors, or broadcast partners, a sports league cognizant of such demand function can, in theory and practice, manipulate its own contests to artificially inflate consumer interest and revenue potential. So long as such manipulation has no nexus to gambling, the rigging of game outcomes or individual events occurring therein is legal. No federal law definitively prohibits it.
The closest any law comes to such a ban is the so-called “quiz show scandal” statute that was passed in 1960 following multiple high-profile cases of deceptive fraud on wildly popular television shows that tested contestants’ intellect in various ways. The show Twenty-One was the most prominent example of how such shows were scripted for commercial success, with certain contestants being supplied the answers to trivia questions while other contestants were instructed to purposefully answer select questions incorrectly. Findings from a U.S. House of Representatives subcommittee found a “complex pattern of calculated deception of the listening and viewing audience.” Legislative action was swift – 47 U.S.C. § 509 generally forbids deception of the public by engaging in “any artifice or scheme for the purpose of prearranging or predetermining in whole or in part the outcome of a purportedly bona fide contest of intellectual knowledge, intellectual skill, or chance.” Although athletic contests are not explicitly excluded from the statute, one commentator has opined that the law pertains only to “skills that are of a primarily intellectual nature . . . [and] does not cover athletic events, talent contests, or beauty pageants.”
To close the legislative gap and ensure that both gambling and nongambling integrity issues in sports are addressed, there are three possibilities. First, the aforementioned quiz show scandal statute could be revised to explicitly include sporting events. Second, the Sports Bribery Act of 1964 could be amended to include unilateral or collaborative nongambling sports manipulation, fraud, or deception as a prohibited activity. As is the case in securities fraud cases, both of the aforementioned proposed legislative tweaks would require that defendants act with scienter. Third, a new statute, modeled on the doping-specific Integrity in Professional Sports Act of 2005, could be enacted. All three proposals are consistent with the plethora of integrity-focused comments league executives have enunciated in Christie and elsewhere, including the open letter NFL Commissioner Roger Goodell released on the eve of an(other) “unpredictable” 2012 season that stated, in relevant part: “As always, we hold everyone, including ourselves, strictly accountable for protecting the integrity of the game . . . .” Accordingly, assuming the plaintiffs’ Christie pleadings, coupled with related public statements made in other contexts, accurately reflect sports league policy vis-à-vis integrity in its broadest construct, the leaders of the most prominent American-based sports governing bodies would seemingly be active supporters of the integrity-preserving legislation proposed here.
* The author is an assistant professor of sports law analytics at Florida State University. He earned his JD from the University of Washington-Seattle and his PhD from Indiana University-Bloomington. Prior to academia, he worked at Octagon, Nike, the ATP Tour, and Keller Rohrback LLP. He would like to thank the members of the Wake Forest Law Review for expert editing and helpful comments. William Winter and Yoon Tae Sung provided excellent research assistance.
. 28 U.S.C. §§ 3701–3704 (2006). PASPA was signed into law by President George H.W. Bush on October 28, 1992. Nevada, Delaware, Oregon, and Montana were grandfathered in under the statute by virtue of their then-existing regulated gambling on sports.
. Complaint at 2, Nat’l Coll. Athletic Ass’n v. Christie, 3:12-cv-04947-MAS-LHG (D.N.J. Aug. 7, 2012).
. 28 U.S.C. § 3702 (2006).
. Cheryl Armstrong, All Major Sports Sue NJ Governor Christie for Signing Gambling Law, Courthouse News Serv., http://www.courthousenews.com/2012/08/09/49140.htm (last updated Aug. 9, 2012).
. 28 U.S.C. § 3703 (2006).
. Complaint, supra note 2, at 11.
. Id. at 3. In a previous PASPA-related case involving Delaware, the same group of five plaintiffs made related allegations. See Office of Comm’r of Baseball v. Markell, 579 F.3d 293, 304 (3d Cir. 2009) (ruling under the language of PASPA’s grandfathering clause that Delaware is limited to offering multi-game football parlay cards, not single game wagering).
. Complaint, supra note 2, at 3. For treatment of recent high-profile gambling-related scandals, see Sean Patrick Griffin, Gaming the Game: The Story Behind the NBA Betting Scandal and the Gambler Who Made it Happen (2011); Declan Hill, The Fix: Soccer and Organized Crime (2008). For an in-depth discussion of three historical sports gambling scandals, see generallyEliot Asinof, Eight Men Out (1963); Dan E. Moldea, Interference: How Organized Crime Influences Professional Football (1989); Charley Rosen, The Wizard of Odds: How Jack Molinas Almost Destroyed the Game of Basketball (2001).
. Thomas J. Ostertag, From Shoeless Joe to Charley Hustle: Major League Baseball’s Continuing Crusade Against Sports Gambling, 2 Seton Hall J. Sport L. 19, 21 (1992).
. ESSA Welcomes the Commission’s Proposals to Safeguard the Integrity of Sport, DINGNews.com (Oct. 24, 2012), http://www.dingnews.com/en/
. Richard H. McLaren, Is Sport Losing its Integrity?, 21 Marq. Sports L. Rev. 551, 552–53 (2011).
. S. Rep. No. 102–248, at 4 (1992).
. Bill Bradley, The Professional and Amateur Sports Protection Act—Policy Concerns Behind Senate Bill 474, 2 Seton Hall J. Sport L. 5, 5–6 (1992).
. Declaration of Mark Emmert at 4, Nat’l Collegiate Athletic Ass’n v. Christie, No. 3:12-cv-04947 (D.N.J. Aug. 10, 2012).
. Declaration of Allan H. Selig at 2, Nat’l Collegiate Athletic Ass’n v. Christie, No, 3:12-cv-04947 (D.N.J. Aug. 10, 2012).
. Declaration of Gary Bettman at 2, Nat’l Collegiate Athletic Ass’n v. Christie, No. 3:12-cv-04947 (D.N.J. Aug. 10, 2012).
. Compare Declaration of David J. Stern at 3, Nat’l Collegiate Athletic Ass’n v. Christie, No. 3:12-cv-04947 (D.N.J. Aug. 10, 2012), with Declaration of Roger Goodell at 2, Nat’l Collegiate Athletic Ass’n v. Christie, No. 3:12-cv-04947 (D.N.J. Aug. 10, 2012).
. Nat’l Basketball Ass’n v. Motorola, 105 F.3d 841, 846 (2d Cir. 1997).
. For a survey of dozens of such empirical studies, see generally Dennis Coates et al., Outcome Uncertainty, Reference-Dependent Preferences and Live Game Attendance, (U. of Alberta, Dep’t of Econ., Working Paper No. 2012-07, 2012), available at http://www.economics.ualberta.ca/~/media/economics/
. See generally Jennings Bryant et al., “Buzzer Beaters” and “Barn Burners:” The Effects on Enjoyment of Watching the Game Go “Down to the Wire”, 18 J. Sport & Soc. Issues 326 (1994); Erik M. Peterson & Arthur A. Raney, Reconceptualizing and Reexamining Suspense as a Predictor of Mediated Sports Enjoyment, 52 J. Broadcasting & Electronic Media 544 (2008); Gan Su-lin, et al., The Thrill of a Close Game: Who Enjoys It and Who Doesn’t?, 21 J. of Sport & Social Issues 53 (1997).
. See generally Colleen C. Bee & Robert Madrigal, It’s Not Whether You Win or Lose; It’s How the Game is Played: The Influence of Suspenseful Sports Programming on Advertising, 41 J. Advertising 47 (2012).
. In antitrust cases, for example, sports leagues often argue that they are merely one of many options in the entertainment market along with motion pictures, music, and Broadway shows. See, e.g., Am. Needle v. Nat’l Football League, 130 S.Ct. 2201, 2207–2208 (2010).
. See Richard H. McLaren, Corruption: Its Impact on Fair Play, 19 Marq. Sports L. Rev. 15, 15 (2008) (noting that corruption “robs sport of its essential feature of uncertainty of the outcome and accelerates its spin into the forum of entertainment, and thus it no longer is sport”).
. Corruption is by no means restricted to U.S. sports, with the multi-faceted corruption surrounding soccer’s global governing body, the Fédération Internationale de Football Association (“FIFA”), being the most obvious recent example. For details regarding FIFA’s recent corruption-related travails, see Roger Pielke, Jr., How Can FIFA be Held Accountable?, Sport Mgmt. Rev. (forthcoming 2013), available at http://leastthing.blogspot.com/2012/10/how-can-fifa-be-held-accountable-now-in.html.
. See Mike Fish, Specter: Goodell’s Spygate Explanations Don’t Pass Scrutiny, ESPN (Feb. 15, 2008), http://sports.espn.go.com/nfl/
. See Mayer v. Belichick, 605 F.3d 223, 225, 237 (3d Cir. 2010).
. See generally Bryan O’Leary, Spygate: The Untold Story (2012).
. A related nonquantitative inquiry has been undertaken in the nascent field described as “the jurisprudence of sports.” See Mitchell N. Berman, “Let ‘em Play”: A Study in the Jurisprudence of Sport, 99 Geo. L. J. 1325, 1334–35 (2010) (noting the use of temporal variance in foul calling); Mitchell N. Berman, Replay, 99 Calif. L. Rev. 1683, 1687 (2011) (describing the use of instant replays).
. See Christopher A. Parsons et al., Strike Three: Discrimination, Incentives, and Evaluation, 101 Am. Econ. Rev. 1410, 1415–16 (2011).
. See Kyle J. Anderson & David A. Pierce, Officiating Bias: The Effect of Foul Differential on Foul Calls in NCAA Basketball, 27 J. Sports Sci. 687 (2009); Paul Gift, Sequential Judgment Effects in NBA Officiating: An Analysis of Referee Bias in Make-Up Call Situations 16–17 (July 1, 2012) (unpublished working paper), available athttp://papers.ssrn.com/sol3/papers.cfm?
abstract_id=2104391; Joseph Price & Justin Wolfers, Racial Discrimination Among NBA Referees, 125 Q. J. of Econ. 1859, 1859, 1867 (2010); Joseph Price et al., SubPerfect Game: Profitable Biases of NBA Referees, 21 J. of Econ. and Mgmt. Strategy 271 (2012); Timothy Zimmer & Todd H. Kuethe, Testing for Bias and Manipulation in the National Basketball Association Playoffs, 5 J. Quantitative Analysis Sports (2009).
. See Hillary N. Morgan & Kurt W. Rotthoff, The Harder the Task, the Higher the Score: Findings of a Difficulty Bias 2–3, 16–17 (Aug. 28, 2012) (unpublished working paper), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1555094 (discussing that more difficult gymnastics routines typically receive higher scores).
. See generally Jack Brimberg & William J. Hurley, Are National Hockey League referees Markov?, 22 OR Insight 234 (2009).
. See generally John W. Emerson et al., Assessing Judging Bias: An Example From the 2000 Olympic Games, 63 Am. Statistician 124 (2009).
. See generally Eric Zitzewitz, Nationalism in Winter Sports Judging and Its Lessons for Organizational Decision Making, 15 J. of Econ. and Mgmt Strategy 67 (2006).
. See Katie Page & Lionel Page, Evidence of Referees’ National Favouritism in Rugby, 1–35 (NCER Working Paper Series, Working Paper No. 62, 2010), available at http://www.ncer.edu.au/papers/documents/WPNo62.pdf.
. See generally Thomas J. Dohmen, The Influence of Social Forces: Evidence from the Behavior of Football Referees, 46 Econ. Inquiry 411 (2008); Luis Garicano et al., Favoritism Under Social Pressure, 87 Rev. Econ. Statistics 208 (2005).
. For historical examples of nongambling fraud in sports, see Brian Tuohy, The Fix Is In: The Showbiz Manipulations of the NFL, MLB, NBA, NHL and NASCAR (2011), and Patrick Hruby, The Truth is Out There: From the 1985 Draft Lottery to the Olympics to Game-Fixing…Which Sports Conspiracy Can You Believe, PostGame (May 30, 2012), http://www.thepostgame.com/blog/hruby-tuesday/201205/conspiracy-theory-david-stern-michael-phelps-patrick-ewing-michael-jordan.
. See Terry Blount, Bruton Smith Wants ‘Timeouts,’ ESPN.com (June 30, 2012), http://espn.go.com/racing/nascar/cup/story/_/id/8117189/bruton-smith-says-nascar-needs-mandatory-cautions.
. See Douglas Robson, Is It Time for Tennis to Bring in Shot Clock?, USA Today (Mar. 8, 2012), http://usatoday30.usatoday.com/sports/tennis/story/2012-03-08/atp-tour-flouting-the-time-rule/53420792/1.
. See Paula Lavigne & Alok Pattani, U.S. Open Random Draw Questioned, ESPN.com, http://espn.go.com/espn/otl/story/_/id/6850893/espn-analysis-finds-top-seeds-tennis-us-open-had-easier-draw-statistically-likely (last updated Aug. 15, 2011).
. See Doug Farrar, Jeff Fisher was Asked to Call Timeouts for MNF Commercial Breaks, Yahoo! Sports (Oct. 19, 2010), http://sports.yahoo.com/nfl/blog/shutdown_corner/post/Jeff-Fisher-was-asked-to-call-timeouts-for-MNF-c?urn=nfl-278323.
. See Bob Velin, Bradley-Pacquiao Decision Leaves Boxing Reeling, USA Today, http://usatoday30.usatoday.com/sports/boxing/story/2012-06-10/timothy-bradley-manny-pacquiao-results-stuns/55509840/1 (last updated June 11, 2012).
. See Justin Peters, Shuttlecock and Bull, Slate (Aug. 1, 2012, 2:20 PM), http://www.slate.com/articles/sports/fivering_circus/2012/08/badminton_scandal_olympics_2012_why_were_those_olympic_badminton_players_trying_to_lose_and_why_is_the_sport_so_dirty_.html.
. See Tom Degun, IOC Content with FIFA Decision Not to Punish Japan on Olympic Match-Fixing Admission, Inside Games (Aug. 2, 2012), http://www.insidethegames.biz/sports/summer/football/18027-ioc-content-with-fifa-decision-not-to-punish-japan-on-olympic-match-fixing-admission.
. See Henry Abbott et al., 10 Points on Tanking, ESPN.com (Apr. 27, 2012), http://espn.go.com/blog/truehoop/post/_/id/41456/10-points-on-tanking. For a more in-depth treatment of the issue, see generally Christopher Walters & Tyler Williams, To Tank or Not to Tank? Evidence from the NBA (Mar. 2-3, 2012) (unpublished working paper), available at http://www.sloansportsconference.com/wp-content/uploads/2012/02/35-Walters_Williams_NBA_2012.pdf.
. For the avoidance of doubt, all references to “sports” herein are distinguishable from professional wrestling, a noncompetitive entertainment spectacle widely known to be staged with prearranged outcomes. See David Shoemaker, A Brief History of Wrestling Fakery, Grantland (June 15, 2012, 12:00 AM), http://www.grantland.com/story/_/id/8056213/john-cena-big-show-how-century-pretend-fighting-led-wwe-reality-era.
. 18 U.S.C. § 224 (2006). Shortly after passage of the statute, the Federal Bureau of Investigation set up a Sports Bribery Program. See Sports Bribery Program, Fed. Bureau Investigation, http://www.fbi.gov/about-us/investigate/organizedcrime/sports_bribe (last visited Nov. 7, 2012).
. The absence of a specific integrity-preserving statute in the context of modern “reality” television shows that involve prize-earning competitions among contestants is equally problematic. See Tara Brenner, A “Quizzical” Look into the Need for Reality Television Show Regulation, 22 Cardozo Arts & Ent. L.J. 873, 898 (2004); Kimberlianne Podlas, Primetime Crimes: Are Reality Television Programs “Illegal Contests” in Violation of Federal Law?, 25 Cardozo Arts & Ent. L.J. 141, 170 (2007).
. Walter C. Neale, The Peculiar Economics of Professional Sports, LXXVIII The Q. J. of Econ. 1, 1 (1964).
. Ian Preston & Stefan Szymanski, Cheating in Contests, 19 Oxford Rev. of Econ. Pol’y 612, 612 (2003). See also Scott M. Gilpatric, Cheating in Contests, 49 Econ. Inquiry 1042, 1042 (2011).
. See 47 U.S.C. § 509 (2006). A 1994 Hollywood movie directed by Robert Redford entitled “Quiz Show” dramatized the scandal that engulfed Twenty-One, one of the most popular shows of the genre. For a scholarly account of the scandal, seeRichard S. Tedlow, Intellect on Television: The Quiz Show Scandals of the 1950s, 28 Am. Q. 483, 487–89 (1976).
. See Joseph Stone & Tim Yohn, Prime Time and Misdemeanors 26–27 (1992).
. H.R. Rep. No. 86-1800, at 25–26 (1960).
. 47 U.S.C. § 509(a)(3) (2006). Title 47 of the U.S. Code sets forth the parameters under which the Federal Communications Commission (“FCC”) and the National Telecommunications and Information Administration function. The most recent FCC inquiry into a potential violation of the statute involved “Our Little Genius,” a Fox television game show that was pulled prior to its planned debut in 2010. See Edward Wyatt, F.C.C. Opens an Inquiry for a Game Show on Fox, N.Y. Times (Feb. 19, 2010), http://www.nytimes.com/2010/02/20/business/media/20genius.html?scp=7&sq=&st=nyt&gwh=3523063375E729F351AFABD0EE902BF2&_r=0.
. Podlas, supra note 49, at 156. Although beyond the scope of this Article, a plausible argument can be made that competitive sporting events do fall under the purview of the statute.
. For a discussion of how the scienter requirement attaches in the analogous context of securities fraud, see Ernst & Ernst v. Hochfelder, 425 U.S. 185, 197–214 (1976).
. Sponsored by U.S. Senator Jim Bunning of Kentucky, the Integrity in Professional Sports Act of 2005 solely pertained to doping matters. It died in committee and was never voted upon. See Integrity in Professional Sports Act, S. 1960, 109th Cong. (2005), available at http://www.gpo.gov/fdsys/pkg/BILLS-109s1960pcs/pdf/BILLS-109s1960pcs.pdf.
. Roger Goodell, Letter to NFL Fans, NFL.com (Aug. 31, 2012, 2:32 PM), http://www.nfl.com/news/story/0ap1000000056927/article/roger-goodell-there-is-no-place-for-bounties-in-football.