News broke late last Friday that the U.S. Court of Appeals for the Third Circuit had denied New Jersey's request for an en banc hearing in the on-going sporting wagering lawsuit. After losing at both the District Court and Court of Appeals level, the state is now down to its last option - the U.S. Supreme Court. Previous statements from the New Jersey side indicated that Gov. Chris Christie is inclined to take the case to the Supreme Court. If so, the state will file a petition for writ of certiorari within the next 90 days. Like all petitions, the chances that the Supreme Court opts to take the case are slim.
If New Jersey does indeed seek review by the Supreme Court, the conventional wisdom is that the sports league plaintiff quintet (NCAA, NBA, NFL, NHL, and MLB) would oppose review by SCOTUS given that the leagues have already prevailed twice earlier. Such opposition could manifest itself in one of two ways: (i) by filing a motion in opposition to New Jersey's petition or (ii) by doing nothing. However, as we learned in the American Needle v. NFL, et al case several years ago, there is a third option - the sports leagues could join New Jersey in seeking review by the Supreme Court.
Recall the American Needle case single entity antitrust case and its procedural history. The NFL and its co-defendants prevailed at both the District Court and Seventh Circuit Court of Appeals before moving to the Supreme Court in 2010. Nevertheless, the NFL decided to request review at the highest level. In relevant part, here is what the league wrote in their pleading -
"The NFL Respondents are taking the unusual step of supporting certiorari in an effort to secure a uniform rule that (i) recognizes the single-entity nature of highly integrated joint ventures and (ii) obviates the uncertainty, chilling effects, and forum shopping that inevitably result from the current conflict among the circuits."
In other words, the NFL desired the Supreme Court to memorialize their earlier court victories. With Minnesota and California promulgating sports betting-related legislation and watching the New Jersey case closely, it is possible that the NCAA-NBA-NFL-NHL-MLB plaintiffs may opt to follow the same appellate strategy now. While the Third Circuit's decision regarding PASPA constitutionality is persuasive nationwide, only a Supreme Court decision would be binding in every circuit.
Instances of a prevailing party seeking further review of a case are exceedingly rare. Nevertheless, given the recent history of it happening in another high-profile case involving one of the same litigants, it is a (remote) possibility worth being aware of.
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