2015 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-25-2015

NCAA v. Governor of New Jersey

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2015

This August is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2015 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"NCAA v. Governor of New Jersey" (2015). 2015 Decisions. Paper 915.

http://digitalcommons.law.villanova.edu/thirdcircuit_2015/915
 PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

Nos. 14-4546, 14-4568, and 14-4569

_____________

NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, 

an unincorporated association; NATIONAL BASKETBALL 

ASSOCIATION, a joint venture; NATIONAL FOOTBALL 

LEAGUE, an unincorporated association; NATIONAL 

HOCKEY LEAGUE, an unincorporated association; OFFICE 

OF THE COMMISSIONER OF BASEBALL, an 

unincorporated association doing business as MAJOR 

LEAGUE BASEBALL

v.

GOVERNOR OF THE STATE OF NEW JERSEY; DAVID 

L. REBUCK, Director of the New Jersey Division of Gaming 

Enforcement and Assistant Attorney General of the State of 

New Jersey; FRANK ZANZUCCKI, Executive Director of 

the New Jersey Racing Commission; NEW JERSEY 

THOROUGHBRED HORSEMEN’S ASSOCIATION, INC.; 

NEW JERSEY SPORTS & EXPOSITION AUTHORITY

STEPHEN M. SWEENEY, President of the New Jersey 

Senate; VINCENT PRIETO, Speaker of the New Jersey 

General Assembly (Intervenors in District Court),

 

 Appellants in 14-4568
2

Governor of New Jersey; David L. Rebuck; Frank Zanzuccki, 

Appellants in 14-4546

New Jersey Thoroughbred Horsemen’s Association, Inc.,

Appellant in 14-4569

 

On Appeal from the United States District Court

for the District of New Jersey 

(District Court No.: 3-14-cv-06450)

District Judge: Honorable Michael A. Shipp

Argued on March 17, 2015

Before: RENDELL, FUENTES and BARRY, Circuit Judges

(Opinion filed: August 25, 2015)

John J. Hoffman, Esquire

Acting Attorney General of the State of New Jersey

Jeffrey S. Jacobson, Esquire

Geoffrey S. Brounell, Esquire

Stuart M. Feinblatt, Esquire

Ashlea D. Newman, Esquire

Peter M. Slocum, Esquire

Office of Attorney General of New Jersey

25 Market Street

Trenton, NJ 08625
3

Matthew Hoffman, Esquire

Gibson, Dunn & Crutcher

333 South Grand Avenue

Los Angeles, CA 90071

Ashley E. Johnson, Esquire

Gibson, Dunn & Crutcher

2100 McKinney Avenue

Suite 1100

Dallas, TX 75201

Theodore B. Olson, Esquire (ARGUED)

Matthew D. McGill, Esquire

Gibson, Dunn & Crutcher

1050 Connecticut Avenue, N.W.

9th Floor

Washington, DC 20036

Counsel for Appellants Governor of the State of 

New Jersey, David L. Rebuck, and Frank 

Zanzuccki in 14-4546

Elliott M. Berman, Esquire

McElroy, Deutsch, Mulvaney & Carpenter

570 Broad Street

Newark, NJ 07102

Ronald J. Riccio, Esquire (ARGUED)

Edward A. Hartnett, Esquire
4

McElroy, Deutsch, Mulvaney & Carpenter

1300 Mount Kemble Avenue

P.O. Box 2075

Morristown, NJ 07962

Counsel for Appellant New Jersey 

Thoroughbred Horsemen’s Association, Inc.

in 14-4569

Michael R. Griffinger, Esquire (ARGUED)

Thomas R. Valen, Esquire

Jennifer A. Hradil, Esquire

Gibbons P.C.

One Gateway Center

Newark, New Jersey 07102

Counsel for Appellants Stephen M. Sweeney 

and Vincent Prieto in 14-4568

Paul D. Clement, Esquire (ARGUED)

Erin E. Murphy, Esquire 

William R. Levi, Esquire

Taylor Meehan, Esquire

Bancroft PLLC

500 New Jersey Avenue, N.W.

7th Floor

Washington, DC 20001

Jeffrey A. Mishkin, Esquire

Anthony J. Dreyer, Esquire

Skadden, Arps, Slate, Meagher, & Flom
5

4 Times Square

New York, NY 10036

William J. O’Shaughnessy, Esquire

Richard Hernandez, Esquire

McCarter & English

100 Mulberry Street

Four Gateway Center, 14th Floor

Newark, NJ 07102

Counsel for Appellees National Collegiate 

Athletic Association; National Basketball 

Association; National Football League; 

National Hockey League; Office of the 

Commissioner of Baseball

Joyce R. Branda, Esquire

Acting Assistant Attorney General, Civil Division

Paul J. Fishman, Esquire

United States Attorney of the District of New Jersey

Scott R. McIntosh, Esquire

Peter J. Phipps, Esquire (ARGUED)

Attorneys, Civil Division

U.S. Department of Justice

P.O. Box 883

Washington, DC 20044

Counsel for Amicus United States of America

O P I N I O N 
6

RENDELL, Circuit Judge:

The issue presented in this appeal is whether SB 2460, 

which the New Jersey Legislature enacted in 2014 (the “2014 

Law”) to partially repeal certain prohibitions on sports 

gambling, violates federal law. 2014 N.J. Sess. Law Serv. 

Ch. 62, codified at N.J. Stat. Ann. §§ 5:12A-7 to -9. The 

District Court held that the 2014 Law violates the 

Professional and Amateur Sports Protection Act (“PASPA”), 

28 U.S.C. §§ 3701-3704. We will affirm. PASPA, by its 

terms, prohibits states from authorizing by law sports 

gambling, and the 2014 Law does exactly that. 

I. Background

Congress passed PASPA in 1992 to prohibit statesanctioned sports gambling. PASPA provides:

It shall be unlawful for—

(1) a governmental entity to 

sponsor, operate, advertise, promote, 

license, or authorize by law or compact, 

or

(2) a person to sponsor, operate, 

advertise, or promote, pursuant to the 

law or compact of a governmental entity,

a lottery, sweepstakes, or other betting, 

gambling, or wagering scheme 

based . . . on one or more competitive 

games in which amateur or professional 

athletes participate, or are intended to 

participate, or on one or more 
7

performances of such athletes in such 

games.

28 U.S.C. § 3702 (emphasis added). PASPA defines 

“governmental entity” to include states and their political 

subdivisions. 28 U.S.C. § 3701(2). PASPA includes a 

remedial provision that permits any sports league whose 

games are or will be the subject of sports gambling to bring 

an action to enjoin the gambling. 28 U.S.C. § 3703. 

Congress included in PASPA exceptions for statesponsored sports wagering in Nevada and sports lotteries in 

Oregon and Delaware, and also an exception for New Jersey 

but only if New Jersey were to enact a sports gambling 

scheme within one year of PASPA’s enactment. 28 U.S.C. 

§ 3704(a). New Jersey did not do so and, thus, the PASPA 

exception expired. Notably, sports gambling was prohibited 

in New Jersey for many years by statute and by the New 

Jersey Constitution. See, e.g., N.J. Const. Art. IV § VII ¶ 2; 

N.J. Stat. Ann. § 2C:37-2; N.J. Stat. Ann. § 2A:40-1. In 

2010, however, the New Jersey Legislature held public 

hearings on the advisability of allowing sports gambling. 

These hearings included testimony that sports gambling 

would generate revenues for New Jersey’s struggling casinos 

and racetracks. In 2011, the Legislature held a referendum 

asking New Jersey voters whether sports gambling should be 

permitted, and sixty-four percent voted in favor of amending 

the New Jersey Constitution to permit sports gambling. The 

constitutional amendment provided: 

It shall also be lawful for the Legislature 

to authorize by law wagering at casinos 

or gambling houses in Atlantic City on 

the results of any professional, college, 
8

or amateur sport or athletic event, except 

that wagering shall not be permitted on a 

college sport or athletic event that takes 

place in New Jersey or on a sport or 

athletic event in which any New Jersey 

college team participates regardless of 

where the event takes place . . . .

N.J. Const. Art. IV, § VII, ¶ 2(D). The amendment thus 

permitted the New Jersey Legislature to “authorize by law” 

sports wagering at “casinos or gambling houses in Atlantic 

City,” except that wagering was not permitted on New Jersey 

college teams or on any collegiate event occurring in New 

Jersey. An additional section of the amendment permitted the 

Legislature to “authorize by law” sports wagering at “current 

or former running and harness horse racetracks,” subject to 

the same restrictions regarding New Jersey college teams and 

collegiate events occurring in New Jersey. N.J. Const. Art. 

IV, § VII, ¶ 2(F). 

After voters approved the sports-wagering 

constitutional amendment, the New Jersey Legislature 

enacted the Sports Wagering Act in 2012 (“2012 Law”), 

which provided for regulated sports wagering at New Jersey’s 

casinos and racetracks. N.J. Stat. Ann. §§ 5:12A-1 et seq.

(2012). The 2012 Law established a comprehensive 

regulatory scheme, requiring licenses for operators and 

individual employees, extensive documentation, minimum 

cash reserves, and Division of Gaming Enforcement access to 

security and surveillance systems. 
9

Five sports leagues1sued to enjoin the 2012 Law as 

violative of PASPA.2 The New Jersey Parties did not dispute 

that the 2012 Law violated PASPA, but urged, instead, that 

PASPA was unconstitutional under the anti-commandeering 

doctrine. The District Court held that PASPA was 

constitutional and enjoined implementation of the 2012 Law. 

 

1 The sports leagues were the National Collegiate Athletic 

Association (“NCAA”), National Football League (“NFL”), 

National Basketball Association, National Hockey League, 

and the Office of the Commissioner of Baseball, doing 

business as Major League Baseball (collectively, the 

“Leagues”).

2 The Leagues named as defendants Christopher J. Christie, 

the Governor of the State of New Jersey; David L. Rebuck, 

the Director of the New Jersey Division of Gaming 

Enforcement (“DGE”) and Assistant Attorney General of the 

State of New Jersey; and Frank Zanzuccki, Executive 

Director of the New Jersey Racing Commission (“NJRC”).

The New Jersey Thoroughbred Horsemen’s Association, Inc. 

(“NJTHA”) intervened as a defendant, as did Stephen M. 

Sweeney, President of the New Jersey Senate, and Sheila Y. 

Oliver, Speaker of the New Jersey General Assembly (“State 

Legislators”). We collectively refer to these parties as the 

“New Jersey Parties.” In the present case, the New Jersey 

Parties are the same, with some exceptions. NJTHA was 

named as a defendant (i.e., it did not intervene), as was the 

New Jersey Sports and Exposition Authority; the latter is not 

participating in this appeal. Additionally, Vincent Prieto, not 

Sheila Y. Oliver, is now the Speaker of the General 

Assembly.
10

The New Jersey Parties appealed, and we affirmed in 

National Collegiate Athletic Ass’n v. Governor of New 

Jersey, 730 F.3d 208 (3d Cir. 2013) (Christie I). 

Christie I rejected the New Jersey Parties’ argument 

that PASPA was unconstitutional. In explaining that PASPA 

does not commandeer the states’ legislative processes, we 

stated: “[n]othing in [PASPA’s] words requires that the states 

keep any law in place. All that is prohibited is the issuance of 

gambling ‘license[s]’ or the affirmative ‘authoriz[ation] by 

law’ of gambling schemes.” Id. at 232 (alterations in 

original). The New Jersey Parties had urged that PASPA 

commandeered the state because it prohibited the repeal of 

New Jersey’s prohibitions on sports gambling; they reasoned 

that repealing a statute barring an activity would be 

equivalent to authorizing the activity, and “authorizing” was 

not allowed by PASPA. We rejected that argument, 

observing that “PASPA speaks only of ‘authorizing by law’ a 

sports gambling scheme,” and “[w]e [did] not see how having 

no law in place governing sports wagering is the same as 

authorizing it by law.” Id. We further emphasized that “the 

lack of an affirmative prohibition of an activity does not mean 

it is affirmatively authorized by law. The right to do that 

which is not prohibited derives not from the authority of the 

state but from the inherent rights of the people.” Id. In short, 

we concluded that the New Jersey Parties’ argument rested on 

a “false equivalence between repeal and authorization.” Id. at 

233. 

The New Jersey Parties appealed to the United States 

Supreme Court, which denied certiorari. Christie I is now the 

law of the Circuit: PASPA is constitutional and does not 

violate the anti-commandeering doctrine. 
11

Undeterred, in 2014, the Legislature passed the 2014 

Law, SB 2460, which provided in part:

any rules and regulations that may 

require or authorize any State agency to 

license, authorize, permit or otherwise 

take action to allow any person to engage 

in the placement or acceptance of any 

wager on any professional, collegiate, or 

amateur sport contest or athletic event, or 

that prohibit participation in or operation 

of a pool that accepts such wagers, are 

repealed to the extent they apply or may 

be construed to apply at a casino or 

gambling house operating in this State in 

Atlantic City or a running or harness 

horse racetrack in this State, to the 

placement and acceptance of wagers on 

professional, collegiate, or amateur sport 

contests or athletic events . . . .

N.J. Stat. Ann. § 5:12A-7. The 2014 Law specifically 

prohibited wagering on New Jersey college teams’ 

competitions and on any collegiate competition occurring in 

New Jersey, and it limited sports wagering to “persons 21 

years of age or older situated at such location[s],” namely 

casinos and racetracks. Id.

II. Procedural History and Parties’ Arguments

The Leagues filed suit to enjoin the New Jersey Parties 

from giving effect to the 2014 Law. The District Court held 

that the 2014 Law violates PASPA, granted summary 
12

judgment in favor of the Leagues and issued a permanent 

injunction against the Governor of New Jersey, the Director 

of the New Jersey Division of Gaming Enforcement, and the 

Executive Director of the New Jersey Racing Commission 

(collectively, the “New Jersey Enjoined Parties”).3 The 

 

3

In the District Court, the New Jersey Enjoined Parties urged 

that the Eleventh Amendment gave them immunity such that 

they could not be sued in an action challenging the 2014 Law. 

The District Court rejected this argument, as do we, and we 

note that, while the issue was briefed, the New Jersey 

Enjoined Parties did not press—or even mention—this issue 

at oral argument. They contend that, because the 2014 Law is 

a self-executing repeal that requires no action from them or 

any other state official, they are immune from suit. This 

argument fails. The New Jersey Enjoined Parties are subject 

to suit under the Ex parte Young exception to Eleventh 

Amendment immunity, which “permit[s] the federal courts to 

vindicate federal rights and hold state officials responsible to 

‘the supreme authority of the United States.’” Pennhurst 

State Sch. & Hosp. v. Halderman, 465 U.S. 89, 105 (1984) 

(quoting Ex parte Young, 209 U.S. 123, 160 (1908)). The 

New Jersey Enjoined Parties are not arguing that other state 

officials should have been named instead of them; they are 

arguing that no state official can be sued regarding the 2014 

Law. We disagree. The Leagues named the state officials 

who are most closely connected to the 2014 Law, i.e., the 

Governor, the Director of the DGE, and the Executive 

Director of the NJRC. The Leagues did not name officials 

who bear no connection whatsoever to the 2014 Law. See 

Young, 209 U.S. at 156 (explaining that plaintiffs cannot 

name just any state official, such as a “state superintendent of 

schools” simply “to test the constitutionality” of a law). See 
13

District Court interpreted Christie I as holding that PASPA 

offers two choices to states: maintaining prohibitions on 

sports gambling or completely repealing them. It reasoned 

that PASPA preempts the 2014 Law because the 2014 Law is 

a partial repeal that necessarily results in sports wagering with 

the State’s imprimatur. The New Jersey Parties appealed. 

On appeal, the New Jersey Parties argue that the 2014 

Law complies with PASPA and is consistent with Christie I 

because the New Jersey Legislature effected a repealer as 

Christie I specifically permitted. The NJTHA argues that the 

District Court erred in granting injunctive relief to the 

Leagues because the Leagues have unclean hands from 

supporting sports gambling in other contexts, and that any 

injunctive relief should be limited to the Leagues’ games and 

should not include games of entities who are not parties to 

this action. 

The Leagues urge that the 2014 Law violates PASPA 

because it “authorizes” and “licenses” sports gambling. The 

United States submitted an amicus brief in support of the 

Leagues arguing that the 2014 Law impermissibly “licenses” 

sports wagering by confining the repeal of gambling 

prohibitions to licensed gambling facilities and thus, in effect, 

enlarging the terms of existing gaming licenses. 

 

also Rode v. Dellarciprete, 845 F.2d 1195, 1208 (3d Cir. 

1988) (noting that a suit against the governor would be 

appropriate when challenging a “self-enforcing statute” 

because “[t]he plaintiff would have been barred from 

challenging the statute by the eleventh amendment unless it 

could name the Governor as a defendant”). 
14

We conclude that the District Court did not err in 

striking down the 2014 Law.

III. Analysis4

A. The 2014 Law Violates PASPA

As a preliminary matter, we acknowledge New 

Jersey’s salutary purpose in attempting to legalize sports 

gambling to revive its troubled casino and racetrack 

industries. The New Jersey Assembly Gaming and Tourism 

Committee chairman stated, in regards to the 2014 Law, that 

“[w]e want to give the racetracks a shot in the arm. We want 

to help Atlantic City. We want to do something for the 

gaming business in the state of New Jersey, which has been 

under tremendous duress . . . .” (App. 91.) New Jersey State 

Senator Ray Lesniak, a sponsor of the law, has likewise stated 

that “[s]ports betting will be a lifeline to the casinos, putting 

people to work and generating economic activity in a growth 

industry.” (App. 94.) And New Jersey State Senator Joseph 

Kyrillos stated that “New Jersey’s continued prohibition on 

sports betting at our casinos and racetracks is contrary to our 

interest of supporting employers that provide tens of 

thousands of jobs and add billions to our state’s economy” 

and that “[s]ports betting will help set New Jersey’s wagering 

facilities apart from the competition and strengthen 

 

4

“We review a district court’s grant of summary judgment de 

novo . . . .” Viera v. Life Ins. Co. of N. Am., 642 F.3d 407, 

413 (3d Cir. 2011). “We review a district court’s grant of a 

permanent injunction for abuse of discretion.” Meyer v. 

CUNA Mut. Ins. Soc’y, 648 F.3d 154, 162 (3d Cir. 2011).
15

Monmouth Park and our struggling casino industry.” (App.

138.) PASPA has clearly stymied New Jersey’s attempts to 

revive its casinos and racetracks and provide jobs for its 

workforce. 

Moreover, PASPA is not without its critics, even aside 

from its economic impact. It has been criticized for 

prohibiting an activity, i.e., sports gambling, that its critics 

view as neither immoral nor dangerous. It has also been 

criticized for encouraging the spread of illegal sports 

gambling and for making it easier to fix games, since it 

precludes the transparency that accompanies legal activities.5 

Simply put, “[w]e are cognizant that certain questions related 

to this case—whether gambling on sporting events is harmful 

to the games’ integrity and whether states should be permitted 

to license and profit from the activity—engender strong 

views.” Christie I, 730 F.3d at 215. While PASPA’s 

provisions and its reach are controversial and, some might 

say, unwise, “we are not asked to judge the wisdom of 

PASPA” and “[i]t is not our place to usurp Congress’ role 

simply because PASPA may have become an unpopular law.” 

Id. at 215, 241. We echo Christie I in noting that “New 

Jersey and any other state that may wish to legalize gambling 

 

5

It has also been criticized as unconstitutional, but we held 

otherwise in Christie I and we cannot and will not revisit that 

determination here. See Christie I, 730 F.3d at 240 

(“[N]othing in PASPA violates the U.S. Constitution. The 

law neither exceeds Congress’ enumerated powers nor 

violates any principle of federalism implicit in the Tenth 

Amendment or anywhere else in our Constitutional 

structure.”). 
16

on sports . . . are not left without redress. Just as PASPA once 

gave New Jersey preferential treatment in the context of 

gambling on sports, Congress may again choose to do so 

or . . . may choose to undo PASPA altogether.” Id. at 240-41. 

Unless or until that happens, however, we are duty-bound to 

interpret the text of the law as Congress wrote it. 

We now turn to the primary question before us: 

whether the 2014 Law violates PASPA. We hold that it does. 

Under PASPA, it shall be unlawful for “a governmental entity 

to sponsor, operate, advertise, promote, license, or authorize 

by law or compact” sports gambling. 28 U.S.C. § 3702(1). 

We conclude that the 2014 Law violates PASPA because it 

authorizes by law sports gambling. 

First, the 2014 Law authorizes casinos and racetracks 

to operate sports gambling while other laws prohibit sports 

gambling by all other entities. Without the 2014 Law, the 

sports gambling prohibitions would apply to casinos and 

racetracks. Appellants urge that the 2014 Law does not 

provide authority for sports gambling because we previously 

held that “[t]he right to do that which is not prohibited derives 

not from the authority of the state but from the inherent rights 

of the people” and that “[w]e do not see how having no law in 

place governing sports wagering is the same as authorizing it 

by law.” Christie I, 730 F.3d at 232. But this is not a 

situation where there are no laws governing sports gambling 

in New Jersey. Absent the 2014 Law, New Jersey’s myriad 

laws prohibiting sports gambling would apply to the casinos 

and racetracks. Thus, the 2014 Law provides the 

authorization for conduct that is otherwise clearly and 

completely legally prohibited. 
17

Second, the 2014 Law authorizes sports gambling by 

selectively dictating where sports gambling may occur, who 

may place bets in such gambling, and which athletic contests 

are permissible subjects for such gambling. Under the 2014 

Law, New Jersey’s sports gambling prohibitions are 

specifically removed from casinos, gambling houses, and 

horse racetracks as long as the bettors are people age 21 or 

over, and as long as there are no bets on either New Jersey 

college teams or collegiate competitions occurring in New 

Jersey. The word “authorize” means, inter alia, “[t]o 

empower; to give a right or authority to act,” or “[t]o permit a 

thing to be done in the future.” Black’s Law Dictionary 133 

(6th ed. 1990).6 The 2014 Law allows casinos and racetracks 

and their patrons to engage, under enumerated circumstances, 

in conduct that other businesses and their patrons cannot do. 

That selectiveness constitutes specific permission and 

empowerment. 

Appellants place much stock in our statement in

Christie I that their argument there rested on a “false 

equivalence between repeal and authorization.” 730 F.3d at 

233. They claim that the 2014 Law does not authorize sports 

gambling because it is only a “repeal” and, in Christie I, we 

stated that “the lack of an affirmative prohibition of an 

activity does not mean it is affirmatively authorized by law.” 

Id. at 232. In other words, they argue that, because the 2014 

Law is only a repeal removing prohibitions against sports 

gambling, it is not an “affirmative authorization” under 

Christie I. We agree that, had the 2014 Law repealed all 

 

6 We cite the version of Black’s Law Dictionary that was in 

effect in 1992, the year PASPA was passed. 
18

prohibitions on sports gambling, we would be hard-pressed, 

given Christie I, to find an “authorizing by law” in violation 

of PASPA. But that is not what occurred here. The presence 

of the word “repeal” does not prevent us from examining 

what the provision actually does, and the Legislature’s use of 

the term does not change the fact that the 2014 Law 

selectively grants permission to certain entities to engage in 

sports gambling. New Jersey’s sports gambling prohibitions 

remain and no one may engage in such conduct save those 

listed by the 2014 Law. While artfully couched in terms of a 

repealer, the 2014 Law essentially provides that, 

notwithstanding any other prohibition by law, casinos and 

racetracks shall hereafter be permitted to have sports 

gambling. This is not a repeal; it is an authorization.

Third, the exception in PASPA for New Jersey, which 

New Jersey did not take advantage of before the one-year 

time limit expired, is remarkably similar to the 2014 Law. 

The exception states that PASPA does not apply to “a betting, 

gambling, or wagering scheme . . . conducted exclusively in 

casinos . . . , but only to the extent that . . . any commercial 

casino gaming scheme was in operation . . . throughout the 

10-year period” before PASPA was enacted. 28 U.S.C. 

§ 3704(a)(3)(B). The exception would have permitted sports 

gambling at New Jersey’s casinos, which is just what the 

2014 Law does. We can easily infer that, by explicitly 

excepting a scheme of sports gambling in New Jersey’s 

casinos from PASPA’s prohibitions, Congress intended that 

such a scheme would violate PASPA. If Congress had not 

perceived that sports gambling in New Jersey’s casinos would 

violate PASPA, then it would not have needed to insert the 

New Jersey exception. In other words, if sports gambling in 

New Jersey’s casinos does not violate PASPA, then PASPA’s 
19

one-year exception for New Jersey would have been 

superfluous. We will not read statutory provisions to be 

surplusage. See Marx v. Gen. Revenue Corp., 133 S. Ct. 

1166, 1178 (2013) (“[T]he canon against surplusage is 

strongest when an interpretation would render superfluous 

another part of the same statutory scheme.”). In order to 

avoid rendering the New Jersey exception surplusage, we 

must read the 2014 Law as authorizing a scheme that clearly 

violates PASPA.7 

As support for their argument that the 2014 Law does 

not violate PASPA, Appellants cite the 2014 Law’s 

construction provision, which provides that “[t]he provisions 

of this act . . . are not intended and shall not be construed as 

causing the State to sponsor, operate, advertise, promote, 

license, or authorize by law or compact” sports wagering. 

N.J. Stat. Ann. § 5:12A-8. This conveniently mirrors 

PASPA’s language providing that states may not “sponsor, 

operate, advertise, promote, license, or authorize by law or 

compact” sports wagering. 28 U.S.C. § 3702(1). 

The construction provision does not save the 2014 

Law. States may not use clever drafting or mandatory 

construction provisions to escape the supremacy of federal 

law. Cf. Haywood v. Drown, 556 U.S. 729, 742 (2009) 

(“[T]he Supremacy Clause cannot be evaded by formalism.”); 

 

7 Granted, the 2014 Law applies to horse racetracks as well as 

casinos, while the PASPA exception for New Jersey refers 

only to casinos, but that does not change the significance of 

the New Jersey exception because it refers to gambling in 

places that already allow gambling, and the racetracks fall 

within that rubric.
20

Howlett ex rel. Howlett v. Rose, 496 U.S. 356, 382-83 (1990) 

(“[t]he force of the Supremacy Clause is not so weak that it 

can be evaded by mere mention of” a particular word). In the 

same vein, the New Jersey Legislature cannot use a targeted 

construction provision to limit the reach of PASPA or to 

dictate to a court a construction that would limit that reach. 

The 2014 Law violates PASPA, and the construction 

provision cannot alter that fact. 

Appellants also draw a comparison between the 2014 

Law and the 2012 Law, which involved a broad regulatory 

scheme, as evidence that the 2014 Law does not violate 

PASPA. It is true that the 2014 Law does not set forth a 

comprehensive scheme or provide for a state regulatory role, 

as the 2012 Law did. However, PASPA does not limit its 

reach to active state involvement or regulation of sports 

gambling. It prohibits a range of state activity, the least 

intrusive of which is “authorization” by law of sports 

gambling.

We conclude that the 2014 Law violates PASPA

because it authorizes by law sports gambling.8 

 

8 Because we conclude that the 2014 Law authorizes by law 

sports gambling, we need not address the argument made by 

Appellees and Amicus that the 2014 Law also licenses sports 

gambling by permitting only those entities that already have 

gambling licenses or recently had such licenses to conduct 

sports gambling operations. We also do not address the 

argument of the State Legislators and the NJTHA that, to the 

extent that any aspect of the 2014 Law violates PASPA, we 

should apply the 2014 Law’s severability clause. The State 

Legislators and the NJTHA offer no proposals regarding what 
21

B. Injunctive Relief

The NJTHA argues that the injunction should apply 

only to the parties who brought this suit and that gambling on 

the athletic contests of other entities, who are not parties to 

this suit, should be permitted. But PASPA does not limit its 

prohibition to sports gambling involving only entities who 

actually bring suit. PASPA provides that “[a] civil action to 

enjoin a violation of section 3702 . . . may be 

commenced . . . by a professional sports organization or 

amateur sports organization whose competitive game is 

alleged to be the basis of such violation.” 28 U.S.C. § 3703. 

The NJTHA conflates the Leagues’ right to bring suit with 

the remedy they may obtain. PASPA provides that the 

Leagues may “enjoin a violation of section 3702,” without 

any limiting language. The 2014 Law violates PASPA in all 

contexts, not simply as applied to the Leagues, and, therefore, 

the District Court properly enjoined its application in full. 

Finally, we need not dwell on the NJTHA’s argument 

that the Leagues should not be entitled to equitable relief 

because they have unclean hands. The NJTHA contends that 

the Leagues are essentially hypocrites because they encourage 

and profit from sports betting, noting that the NFL has been 

scheduling games in London where sports gambling is legal, 

that the NCAA holds events in Las Vegas where sports 

gambling is legal, and that the Leagues sanction and 

encourage fantasy sports betting. These allegations fail to 

rise to the level required for application of the unclean hands 

doctrine. “The equitable doctrine of unclean hands applies 

 

provisions should be severed from the 2014 Law, and we do 

not see how we could sever it.
22

when a party seeking relief has committed an unconscionable 

act immediately related to the equity the party seeks in 

respect to the litigation.” Highmark, Inc. v. UPMC Health 

Plan, Inc., 276 F.3d 160, 174 (3d Cir. 2001). It is not 

“unconscionable” for the Leagues to support fantasy sports 

and hold events in Las Vegas or London, nor is doing so 

“immediately related” to the 2014 Law. We cannot conclude 

that the Leagues acted unconscionably, i.e., amorally, 

abusively, or with extreme unfairness, in relation to the 2014 

Law. 

IV. Conclusion

The 2014 Law violates PASPA because it authorizes 

by law sports gambling. We will affirm.
1

FUENTES, Circuit Judge, dissenting.

In response to Christie I, where we held that New 

Jersey’s 2012 Sports Wagering Law (“2012 Law”) violated 

PASPA, the New Jersey Legislature passed the 2014 Law. In 

addition to repealing the 2012 Law in full, the 2014 Law also 

repealed all prohibitions on sports wagering and any rules 

authorizing the State to, among other things, license or 

authorize a person to engage in sports wagering, with respect 

to casinos and gambling houses in Atlantic City and horse

racetracks in New Jersey. The repealer also maintained 

prohibitions for persons under 21 and for wagering on New 

Jersey collegiate teams or any collegiate competition 

occurring in New Jersey. Likewise, the 2014 Law stripped 

New Jersey of any involvement in sports wagering, regulatory 

or otherwise. In essence, the 2014 Law renders previous 

prohibitions on sports gambling non-existent. 

The majority, however, takes issue with what it terms

the “selective” nature of the partial repeal. First, that the 

repeal applies to specific locations. That is, under the 2014 

Law, wagering may only take place at casinos, gambling 

houses, and horse racetracks. Next, the restriction against 

betting by persons under the age of 21 would remain, and 

finally, restrictions against betting on New Jersey collegiate 

teams or any collegiate competition in New Jersey would 

remain. These restrictions, the majority concludes, amount to 

“authorizing” a sports-wagering scheme and, therefore, the 

2014 Law must also violate PASPA. I disagree. As I see it, 

the issue is whether a partial repeal amounts to authorization. 
2

Because this logic rests on the same false equivalence1 we 

rejected in Christie I, I respectfully dissent.

The majority, however, maintains that the 2014 Law 

“authorizes” casinos and racetracks to operate sports 

gambling while other laws prohibit sports gambling by all 

other entities.2 According to the majority, “this is not a 

situation where there are no laws governing sports gambling 

in New Jersey” and “[a]bsent the 2014 Law, New Jersey’s 

myriad laws prohibiting sports gambling would apply to the 

casinos and racetracks.”3 Yet, the majority is mistaken as to 

the impact of a partial repeal. Repeal is defined as to 

“rescind” or “an abrogation of an existing law by legislative 

act.”4 When a statute is repealed, “the repealed statute, in 

 

1 A false equivalence is a logical fallacy which describes a 

situation where there is a logical and apparent equivalence, 

but when in fact there is none. This fallacy is categorized as a 

fallacy of inconsistency. Harry Phillips & Patricia Bostian, 

The Purposeful Argument: A Practical Guide, Brief Edition

129 (2014). In Christie I, we held that there was a false 

equivalence between repeal and authorization. 730 F.3d at 

233.

2 For brevity, I refer to the repeal of prohibitions as applying 

to casinos, gambling houses, and horse racetracks, with the 

understanding that the repeal applies to casinos and gambling 

houses in Atlantic City and horse racetracks in New Jersey 

for those over 21 not betting on New Jersey collegiate teams 

or any collegiate competition occurring in New Jersey. 

3 Maj. Op. 16-17.

4 Black’s Law Dictionary 1325 (8th ed. 2007).
3

regard to its operative effect, is considered as if it had never 

existed.”5 A repealed statute is treated as if it never existed; a 

partially repealed statute is treated as if only the remaining 

part exists.6

The 2014 Law, then, renders the previous prohibitions 

on sports gambling non-existent. After the repeal, it is as if 

New Jersey never prohibited sports gambling in casinos, 

gambling houses, and horse racetracks. Therefore, with 

respect to those areas, there are no laws governing sports 

wagering and the right to engage in such conduct does not 

 

5 73 Am. Jur. 2d Statutes § 264.

6 See, e.g., Ex Parte McCardle, 74 U.S. 506, 514 (1868) 

(“[W]hen an act of the legislature is repealed, it must be 

considered . . . as if it never existed.” (internal quotation

marks omitted)); Anderson v. USAir, Inc., 818 F.2d 49, 55 

(D.C. Cir. 1987) (“Common sense dictates that repeal means 

a deletion. This court would engage in pure speculation were 

it to hold otherwise.”); In re Black, 225 B.R. 610, 620 (Bankr. 

M.D. La. 1998) (“Can a statute use a repealed statute? Is a 

repealed statute something or is it nothing? We think the 

answers are ‘no’ and ‘nothing.’”); Kemp by Wright v. State, 

687 A.2d 715, 723 (N.J. 1997) (“In this State it is the general 

rule that where a statute is repealed and there is no saving[s] 

clause or a general statute limiting the effect of the repeal, the 

repealed statute . . . is considered as though it had never 

existed, except as to matters and transactions passed and 

closed.” (quoting Parsippany Hills Assocs. v. Rent Leveling 

Bd. of Parsippany-Troy Hills Twp., 476 A.2d 271, 275 (N.J. 

Super. 1984)).
4

come from the state. Rather, the right to do that which is not 

prohibited stems from the inherent rights of the people.7 The 

majority, however, states that “[a]bsent the 2014 Law, New 

Jersey’s myriad laws prohibiting sports gambling would 

apply to the casinos and racetracks,” and that, as such, “the 

2014 Law provides the authorization for conduct that is 

otherwise clearly and completely legally prohibited.”8 We 

have refuted this position before. In Christie I, we held that 

“the lack of an affirmative prohibition of an activity does not 

mean it is affirmatively authorized by law.”9 Such an 

argument, we said, “rests on a false equivalence between 

repeal and authorization and reads the term ‘by law’ out of 

the statute.”10 We identified several problems in making this 

false equivalence—the most troublesome being that it “reads 

the term ‘by law’ out of the statute.”11 The majority’s 

position does just that. In holding that a partial repeal of 

prohibitions is state authorization, the majority must infer 

authorization. PASPA, however, contemplates more. In 

Christie I, we pointed to the fact that New Jersey’s 2012 

amendment to its constitution, which gave the Legislature 

power to “authorize by law” sports wagering was insufficient 

to “authorize [it] by law.”12 We explained, “that the 

Legislature needed to enact the [2012 Law] itself belies any 

 

7 Christie I, 730 F.3d at 232.

8 Maj. Op. 16-17.

9 Christie I, 730 F.3d at 232. 

10 Id. at 233. 

11 Id.

12 Id. at 232.
5

contention that the mere repeal of New Jersey’s ban on sports 

gambling was sufficient to ‘authorize [it] by law’ . . . . [T]he . 

. . Legislature itself saw a meaningful distinction between 

repealing the ban on sports wagering and authorizing it by 

law, undermining any contention that the amendment alone 

was sufficient to affirmatively authorize sports wagering.”13 

This is no less true of a partial repeal than it would be of a 

total repeal—which the majority concedes would not violate 

PASPA. Thus, to reach the conclusion that the 2014 Law, a 

partial repeal of prohibitions, authorizes sports wagering, the 

majority necessarily relies on this false equivalence. It 

concedes as much when stating “the 2014 Law” (the repeal) 

provides “the authorization” for sports wagering. Of course, 

this is the exact false equivalence we identified, and 

dismissed as a logical fallacy, in Christie I.14 

The majority does not believe it makes this false 

equivalence. To support its position, the majority relies on 

the “selective” nature of the 2014 Law contending that “the 

Legislature’s use of the term [‘repeal’] does not change the 

fact that the 2014 Law selectively grants permission to certain 

entities to engage in sports gambling.”15 First, it does not. 

There is no explicit grant of permission in the 2014 Law for 

any entity to engage in sports wagering. Second, not only 

does the majority fail to explain why such a partial repeal is 

equivalent to granting permission (by law) for these locations, 

but the very logic of such a position fails. If withdrawing 

prohibitions on “some” sports wagering is the equivalent to 

 

13 Id.

14 Id. at 233. 

15 Maj. Op. 18.
6

authorization by law, then withdrawing prohibitions on all

sports wagering must be considered authorization by law.16 

Under this logic, New Jersey is left with no choice at all—it 

must uphold all prohibitions on sports wagering in perpetuity 

or until PASPA is no more. This is precisely the opposite of 

what we held in Christie I—“[n]othing in these words 

requires that the states keep any law in place”17—and why we 

found PASPA did not violate the anti-commandeering 

principle.

The majority, along with the United States, conceded 

that a complete repeal does not violate PASPA. Indeed, in its 

brief in opposition to New Jersey’s petition for certiorari, the 

United States went as far as to concede that New Jersey could 

repeal its prohibitions in whole or in part.18 Simply put, there 

is nothing special about a partial repeal and it, too, does not 

violate PASPA. The 2014 Law is a self-executing 

deregulatory measure that repeals existing prohibitions and 

regulations for sports wagering and requires the State to 

abdicate any control or involvement in sports wagering. I do 

 

16 Put another way, would a state violate PASPA if it enacted 

a complete repeal of sports-wagering prohibitions and later 

enacted limited prohibitions regarding age requirements and 

places where wagering could occur? There is simply no 

conceivable reading of PASPA that could preclude a state 

from restricting sports wagering.

17 730 F.3d at 232.

18 Br. for the United States in Opp’n at 11, Christie v. Nat’l 

Collegiate Athletic Ass’n, Nos. 13-967, 13-979, and 13980 

(U.S. May 14, 2014). 
7

not see, then, how the majority concludes that the 2014 Law 

authorizes sports wagering, much less in violation of PASPA.

The majority equally falters when it analogizes the

2014 Law to the exception Congress originally offered to 

New Jersey in 1992. The exception stated that PASPA did 

not apply to “a betting, gambling, or wagering scheme . . . 

conducted exclusively in casinos[,] . . . but only to the extent 

that . . . any commercial casino gaming scheme was in 

operation . . . throughout the 10-year period” before PASPA 

was enacted.19 Setting aside the most obvious distinction 

between the 2014 Law and the 1992 exception, that it 

contemplated a scheme that the 2014 Law does not

authorize,

20 the majority misses the mark with this 

comparison when it states: “If Congress had not perceived 

that sports gambling in New Jersey’s casinos would violate 

PASPA, then it would not have needed to insert the New 

 

19 28 U.S.C. § 3704(a)(3)(B).

20 For example, “[Division of Gaming Enforcement (“DGE”)] 

now considers sports wagering to be ‘non-gambling activity’ . 

. . that is beyond DGE’s control and outside of DGE’s 

regulatory authority.” App. 416. At oral argument, 

Appellants conceded they would have no authority or 

jurisdiction over sports wagering. See, e.g., Tr. 14:12-15 (“Q: 

Sports betting is going to take place in the casino with no 

oversight whatsoever; A: That’s right.”); Tr. 21:15-20 (“All 

of the state and federal laws that deal with consumer 

protection, criminal penalties and the like remain in full force 

and effect at the sports betting venue. The only thing that 

doesn't get regulated is the sports betting itself.”).
8

Jersey exception.”21 Congress, however, did not perceive, or 

intend, for private sports wagering in casinos to violate 

PASPA. Instead, Congress prohibited sports wagering 

pursuant to state law. That the 2014 Law might bring about 

an increase in the amount of private, legal sports wagering in 

New Jersey is of no moment and the majority’s reliance on 

such a possibility is misplaced. The majority is also wrong in 

an even more fundamental way: the exception Congress 

offered to New Jersey was exactly that, an exception to the 

proscriptions of PASPA. That is to say, with this exception, 

New Jersey could have “sponsor[ed], operate[d], advertise[d], 

promote[d], license[d], or authorize[d] by law or compact” 

sports wagering. Under the 2014 Law, of course, New Jersey 

cannot and does not aim to do any of these things.

The majority fails to illustrate how the 2014 Law 

results in sports wagering pursuant to state law when there is 

no law in place as to several locations, no scheme created, 

and no state involvement. A careful comparison to the 2012 

Law is instructive. The 2012 Law lifted New Jersey’s ban on 

sports wagering and provided for the licensing of sportswagering pools at casinos and racetracks in the State. Indeed, 

New Jersey set up a comprehensive regime for the licensing 

and close supervision and regulation of sports-wagering 

pools. For instance, the 2012 Law required any entity that 

wished to operate a “sports pool lounge” to acquire a “sports 

pool license.” To do so, a prospective operator was required 

to pay a $50,000 application fee, secure DGE approval of all 

internal controls, and ensure that any of its employees who 

were to be directly involved in sports wagering obtained 

individual licenses from DGE and the Casino Control 

 

21 Maj. Op. 19. 
9

Commission. In addition, the regime required entities to, 

among other things, submit extensive documentation to DGE, 

to adopt new “house” rules subject to DGE approval, and to 

conform to DGE standards. This violated PASPA in the most 

basic way: New Jersey developed an intricate scheme to both 

authorize (by law) and license sports gambling. The 2014 

Law repealed this entire scheme.

Without more, the majority is simply left calling a tail 

a leg—which, as the adage goes, does not make it so. 

Because I do not see how a partial repeal of prohibitions is 

tantamount to “authorizing by law” a sports-wagering scheme

in violation of PASPA, I respectfully dissent.