Old Delaware Law Positions State for Legal Sports Betting

A nearly-forgotten law still on the books could prove pivotal in bringing legal Delaware sports betting back to the state should New Jersey prevail in its Supreme Court case challenging the federal sports betting prohibition. If New Jersey’s suit is successful, Delaware is likely to become one of the first states to implement legal sports betting.

The backstory to this goes all the way back to the 1970s. Back in 1976, the Delaware lottery approved a type of sports betting allowing lotto customers to place parlay-style wagers on the outcomes of at least three NFL games. These wagers require customers to pick the winners of at least three games and only pay if all three predictions were correct.

Skipping forward to 1992, Congress that year passed the Professional and Amateur Sports Protection Act (PASPA). This piece of legislation outlawed all forms of sports betting, but allowed exemptions for states that already had sports betting legislation in place.

Nevada was the only state to receive a full exemption because Nevada was the only state at that time with full-on sports betting. Delaware’s parlay-style betting was also grandfathered in, but that exemption was specific to the exact type of sports betting that was already legal: parlay wagers consisting of at least 3 NFL games.

In 2009, Delaware Governor Jack Markell signed into law a bill that would have allowed casinos to offer point-spread wagers on individual games across all major sports. The bill successfully made it through the legislature and landed on Governor Markell’s desk in May of 2009.

The Governor approved the bill, but the NFL, MLB, NBA, NHL, and NCAA filed suit to block the bill from taking effect. Courts sided with the sports leagues and prevented the bill from taking effect.

The opinion written at the time stated:

“Any effort by Delaware to allow wagering on athletic contests involving sports beyond the NFL would violate PASPA…

“Because single-game betting was not “conducted” by Delaware between 1976 and 1990, such betting is beyond the scope of the exception… and thus prohibited under the statute’s plain language.

“Under federal law, Delaware may, however, institute multi-game (parlay) betting on at least three NFL games, because such betting is consistent with the scheme to the extent it was conducted in 1976.”

Despite being stricken down in 2009, the law is still on the books – it just isn’t enforced. That’s where things stood until very recently.

New Jersey Case Paves Way for Sports Betting in Delaware

Now, the legal battle playing out in New Jersey may give Delaware a chance to become one of the first states to legalize sports betting. In the New Jersey sports betting case, the Christie administration is fighting for its right to legalize and regulate sports betting. The major sports leagues and the NCAA oppose New Jersey’s effort, but New Jersey argues that PASPA is unconstitutional.

The New Jersey case has been kicked up all the way to the Supreme Court, which is expected to issue an opinion in the spring or summer of 2018. If the Supreme Court finds PASPA unconstitutional, New Jersey and other states will once again regain the autonomy to prohibit or legalize sports betting as they see fit.

Delaware Online is now reporting that the Carney administration is drawing up plans to bring the 2009 law back into play should New Jersey win its long-fought court case. A number of states have shown interest in doing the same if PASPA is ruled unconstitutional, but Delaware has a leg up thanks to the law they passed in 2009.

Delaware lottery director Vernon Kirk told Delaware online that the lottery is now considering what would happen if New Jersey wins and Delaware decides to proceed with sports betting:

“The thought is that a favorable ruling would mean anything that’s offered in Las Vegas could be offered here in Delaware or any other state. Whether we would do that remains undecided, but we are considering what that might look like if we did.”

Even more importantly, Kirk said he does not believe the state would have to go back to the legislature to implement sports betting. The legislation authorizing sports betting is already in place after having gone through the full process to turn a bill into law. The state can simply pick up where it left off and begin offering sports betting if and when the Supreme Court issues a favorable ruling in the New Jersey case.

Kirk also told Delaware Online that if the state does proceed down this road, the plan would be to start with only offering sports betting at casinos. Once the casinos iron out the mechanics of running a successful sports betting operation, the lottery would then consider rolling out sports betting to all its other retail partners.