[Thursday, May 8th, 2014]
The Professional and Amateur Sports Protection Act defines the status of sports betting throughout the United States. The federal law allows the states of Nevada, Oregon, Montana and Delaware to have various forms of sports gambling, while keeping sports gambling out of other states. These four above states all had some form of sports gambling at the time PASPA was passed and were allowed to continue the sports betting programs. However, the 3rd U.S. Circuit Court of Appeals in Philadelphia has ruled that New Jersey’s sports betting law conflicts with federal law and will not allow the state of New Jersey to proceed with sports gambling.
In the above case, the court halted New Jersey’s efforts to legalize sports gambling, upholding a ruling that New Jersey’s betting laws conflict with the PASPA and therefore cannot be implemented. The majority in this case held that as a matter of constitutional law, New Jersey’s betting laws must yield to the PASPA. The Supremacy Clause of the U.S. Constitution states that federal laws shall prevail over state laws and that is the reason for the majority’s holding in this case. Conversely, the dissent in this case stated that PASPA attempts to implement federal policy by telling the states they may not regulate an unregulated activity and Congress does not have that power.
The NFL, NBA, NHL, MLB, and NCAA all sued the state of New Jersey last year, claiming that the New Jersey betting law harmed the integrity of the game. The difference between New Jersey and the aforementioned states with sports betting laws is that unlike New Jersey, the other states had already implemented state betting laws prior to PASPA being passed.
Does the Federal Government have a specific interest in protecting the integrity of the game? Does the PASPA violate the authority of state legislatures under the 10th Amendment?
The 10th Amendment of the U.S. Constitution protects state sovereignty. State sovereignty is protected by granting states power that was not prohibited by the Constitution. The Supreme Court has declared laws in the modern era unconstitutional that compel states to enforce federal statutes. However, the Federal Government can regulate state activity under The Commerce Clause. The Commerce Clause authorizes Congress to regulate commerce in order to ensure that the flow of interstate commerce is free from local restraints imposed by various states. A state has the right under the 10th Amendment to regulate its domestic commerce. However, that right must be exercised in a manner that does not interfere with, or place a burden on, interstate commerce, or else Congress may regulate that area of domestic commerce in order to protect interstate commerce from the unreasonable burden.
New Jersey has the largest gaming capital on the east coast within its state border known as Atlantic City. Atlantic City is one of the most popular tourist destinations in the United States with over 30 million visitors a year and $1.7 billion dollars in investments in casino resorts. It is likely these casino resorts would produce even greater revenue to the state of New Jersey with the addition of sports betting in the casino resorts.
It would appear that the major sports leagues do not want the state of New Jersey to profit from their respective activities and the leagues claim integrity of the game would be harmed. Sports betting is a legal activity in states like Nevada and Congress has not acted under the Commerce Clause to invalidate Nevada state law. This can be considered as evidence that the Federal Government viewed sports betting as an activity that can be regulated by state legislature. Should the state of New Jersey be treated differently solely because it did not have state laws allowing sports betting prior to the enactment of PASPA?
Gov. Chris Christie has already appealed to the U.S. Supreme Court on behalf of New Jersey. However, the odds are not in Gov. Christie’s favor due to the fact only 100 arguments are agreed to be heard out of 10,000 petitions. Nevertheless, the Court of would have to decide where the line between Federal and State Governments is drawn, which has historically been a keen issue. By resolving this constitutional law issue, the Court can determine if all sports bets are off in the state of New Jersey.
[Thursday, April 10th, 2014]
BY AUSTIN COHEN, NYLS 2014
Masahiro Tanaka was a star pitcher in Japan putting together an impressive resume where he went 99-35 with a 2.30 ERA in seven seasons with his Japanese team, striking out 1,238 in 1,315 innings. This baseball season, however, the 25-year-old Tanaka agreed to a $155 million, seven-year deal to be the new prize pitcher in the Yankees rotation. (And if last night’s performance is any indication, he’s going to shine with his new team.)
Pitching in New York City, and specifically for the Yankees, can be a very daunting experience. However, it gave Tanaka the greatest financial opportunity as well as the competitive opportunity to play against the world’s best players. In order to get Tanaka over to spring training so he could start his new career in pinstripes, the Yankees had to get a member of Congress to intervene and expedite his visa process. Tanaka also teamed up with his agent Casey Close and lawyers with expertise in immigration law in order to facilitate the process. When it comes to foreign ball players looking to come play in the MLB, it is advantageous for the ballplayer to work with experienced immigration law professionals.
When foreign ballplayers come to the United States they usually apply for a P-1A visa. An athletic team that employs a P-1A alien must show he or she is “internationally recognized,” which the United States Citizenship and Immigration Services (USCIS) defines as “having a high level of achievement in a field evidenced by a degree of skill and recognition substantially above that ordinarily encountered, to the extent that such achievement is renowned, leading, or well-known in more than one country.” The biggest obstacle international athletes face is the “internationally recognized” test set forth above. For several of these athletes, however, this test is easily met, as long as they are signing a contract with a team within the major sports leagues in the U.S.
P-1A visas are awarded for an initial period of five years, renewable once for a second five-year period. In Tanaka’s case he signed for a 7-year contract and will have an initial period of five years on the visa and then will have to apply for an extension in order to complete performance of his Yankees contract. Moreover, the P-1A visa holder may arrive temporarily into the U.S., intending to depart voluntarily at the end of the contract and are required to have a residence abroad that they don’t intend to abandon. However, one with a P-1A visa may lawfully seek to become a permanent resident of the U.S.
Although the visa category requirements are quite specific, most athletes who play for major and minor league sports leagues may qualify. The P-1A visa also has benefits, because there is no limit on the number of athletes for whom a team may petition, and there is no national cap on the number of athletes who may enter the U.S. This flexibility allows teams to easily add players from abroad, assuming they encounter no difficulties from the USCIS or relevant consulate during the actual petition process. However, in 2005 Baltimore Orioles pitcher Sidney Ponson was scratched from a scheduled start and was not allowed to pitch in a game until he obtained a valid P-1A visa. Ponson was at the time on a visa waiver program, which allowed Ponson the ability to conduct business and travel to the United States for leisure for a 90-day period, but was not allowed to earn a salary in the United States. On the advice of his counsel Ponson did not apply right away for a P-1A visa because he had assault charges pending in Aruba after an altercation in which he punched an Aruban judge in the face. Ponson could have applied for the visa, even with the charges still pending. However, in order to obtain the work visa, you have to meet with an official from a U.S. and he would have been required to reveal the details of the incident. His representatives worried that the official could deny the visa request without a resolution to the case.
Like other visas available to individuals seeking to enter the U.S., the process of obtaining a visa can be time consuming, complex and stressful. Processing a P-1A visa application can take up to 30 days. With Tanaka scheduled to report on February 14, it was possible he wasn’t going to make it on time. The Yankees filed a petition for Tanaka’s P-1 with the USCIS, and wanted faster-than-normal approval of his case. The Yankees called New York Senator Chuck Schumer because they were worried about the length of time it can take for foreign players to get a visa. Senator Schumer contacted USCIS on behalf of the Yankees and requested that the pitcher’s application be processed quickly. This is something he has done previously with the New York Mets as well, when they had a visa issue with all-star shortstop Jose Reyes.
Members of Congress cannot require that USCIS approve a particular applicant’s case. However, Members of Congress can influence these administrative agencies to expedite certain cases that are under review. For the everyday applicant, expedites are typically considered only for humanitarian or pressing medical reasons. But to please the hometown fans/voters, the New York senator used his influence on behalf of Tanaka in time for spring training. Tanaka received his visa to report to spring training on February 14, and take the mound for the first time in Yankee Stadium on April 9. As Senator Schumer stated “As a lifelong Yankee fan who is hoping for another World Series this year, I could not be happier.”
[Sunday, March 30th, 2014]
Dallas Mavericks owner Mark Cuban sparked a huge discussion about America’s favorite sport with provocative comments on the NFL prior to a Mavericks game last week. Cuban believes that if the NFL continues to expand and dominate the market, the league may eventually implode.
“I think the NFL is 10 years away from an implosion. When pigs get fat, hogs get slaughtered. And they’re getting hoggy. When you try to take it too far, people turn the other way. I’m just telling you, when you got a good thing and you get greedy, it always, always, always, always, always turns against you.”
Cuban expanded on those thoughts in great detail in a 1,500-word Facebook post Monday, laying out five reasons why he believes the NFL should reevaluate its strategy.
[Sunday, March 30th, 2014]
[Tuesday, March 25th, 2014]
On December 7, 2013, Shawn Thornton of the Boston Bruins sucker punched Brooks Orpik of the Pittsburgh Penguins. The result is that the National Hockey League (NHL) gave Thornton a 15-game suspension for the hit. Will a prosecutor press charges? Probably not. The media fully covers when athletes get charged with crimes like domestic violence, rape and murder. But they do not always pay attention to excessive violence in sports, because that is not a crime. Excessive violence includes hits that are unrelated to the game and hits that are outside the scope of the game, and they should be crimes.
Athletes should be subject to the criminal justice system, not just for criminal behavior off the field (rape, murder, dog fighting); rather prosecutors should be able to bring charges against athletes who are criminally violent on the field. Prosecutors should not be able to bring charges for any and every hit, as they should not interfere with the game. Instead, they should have guidelines to follow in order to press these charges, such as the proposed Sports Violence Act of 1980. The point of the Act was to protect athletes from excessive violence in the game, and provide prosecutors with guidelines to exercise their discretion in bringing criminal charges against game-time conduct, to ensure even-handed enforcement of the criminal laws. Without these guidelines, prosecutors who press charges for game-time conduct might be criticized for interfering with the game or the leagues’ own discipline.
But the Act never passed, and the result is an even greater disparity in treatment of game-time versus off-field acts of aggression. Currently, an otherwise criminal act in hockey results in a mere 2- or 5-minute penalty, while athletes who commit similar acts outside the game risk convicted of a crime and incarceration. For example, former footballer, Alonzo Spellman, served 1 year in prison for simple assault when a similar act on the field would have been met with at most a flag and a fine. Former baseball player, Milton Bradley spent almost 3 years in prison for assault with a deadly weapon, when stabbing someone with his spikes during a game would at most have resulted in him being ejected.
Aside from the lack of guidelines for bringing charges against athletes, another problem with applying criminal law to sports is that athletes consent to the expected behavior in the game and assume the risks that are inherent in the game they are playing. However, they should not be expected to assume the risk and consent to hits and injuries that are not inherent in the game. When an athlete acts beyond the scope of the game, whether it is swinging a hockey stick at a player’s head, tackling someone after the play is over or tackling someone who is totally separate from the play, that athletes should be open to criminal liability.
Athletes are often considered role models for our youth. In fact, Kadence Otto, in an article from the Journal of Legal Aspects of Sport, writes that “[s]port sociologists have noted that sport is a microcosm of society; namely, the behavior exhibited by athletes is reflective of the behavior exhibited by those in society in general.” People look up to athletes as people they would like to emulate, so when athletes commit any crimes, on-field or off-field, they should be punished, as anyone else is, to show that this is not proper behavior. People use sports to help them decide how to treat others, how to conduct themselves, and even when illegal conduct is okay if it gains them undue advantages. For some reason though, we ignore the criminality of something when it happens on the field. While under the protection of their uniforms, we pay no mind to athletes’ otherwise criminal acts. It then becomes okay for a person to act beyond the scope of the rules of the game as long as they are within the confines of the game. Jeffrey Standen in Taking Sports Seriously: Law and Sports in Contemporary American Culture, notes that “The philosophy behind criminal law is based on society’s need to be free from harmful conduct.” While “society” is not usually in harms direct way during a sporting event, one could argue it is indirectly in harm when children look up to their role models. Society can also be directly harmed when on-field violence escalates, and makes its way into the stands, especially in basketball, where brawls have broken out.
We should not expect athletes to act like people they are not just because they are role models. The role they are modeling, though, is professional athlete. According to Standen, “Athletes display the athletic virtues: diligence, perseverance, the value of training, fair play and sportsmanship, grace under pressure, and the pursuit of excellence. The best of our athletes exhibit these virtues abundantly, in full public display.” We should, however, expect them to be treated the same way as everyone else. Just as anyone else who commits a crime at work should be charged with that crime, so should athletes. Says Standen, “We can’t fairly ask our sports stars to be especially kind or honest, but we can ask them to exhibit good sportsmanship and a commitment to fair play.” When they fail, we should be able to fairly expect them to pay for their actions, just as the people looking up to them have to do.