- The Washington Times - Monday, May 3, 2010

DOVER, Del. | The U.S. Supreme Court on Monday rejected Delaware’s appeal to expand its sports betting lottery beyond professional football.

The justices denied Delaware’s petition for judicial review without comment, leaving in place a ruling by the U.S. Third Circuit Court of Appeals in Philadelphia that limits sports betting in Delaware to multi-game, or parlay, bets on National Football League games.

The appeals court heard arguments last August on a request by the NFL and other sports leagues for an injunction to prevent Delaware from starting sports betting with the launch of the NFL season. But instead of ruling on the injunction, the appeals court turned directly to the leagues’ claim that Delaware’s proposal to allow single-game bets on a variety of professional and collegiate sports would violate a 1992 federal ban on sports wagering.

The court declared that the state’s new sports betting lottery had to be similar to the betting scheme used in a failed 1976 National Football League lottery that allowed Delaware to be one of only four states to receive grandfathered exemptions from the federal ban.

The ruling stunned attorneys for the state, who were not given the opportunity to defend the merits of the sports betting proposal. Gov. Jack Markell subsequently approved an appeal to the Supreme Court that was funded by Delaware’s three slot-machine casinos, which have exclusive rights to offer sports betting.

“The state was hoping to have its day in court for our arguments to be fully heard, but we will not get that chance,” Markell said in a prepared statement. “The result is unfortunate but not surprising, since only a small fraction of appeals to the Supreme Court are actually heard.”

Ed Sutor, president and CEO of Dover Downs Inc., said he was disappointed by the court’s decision, saying there was a legitimate argument for allowing wagers on sports than professional football.

“That’s the reason we agreed to pay for the appeals process,” he said. “Now, we’re going to do the best we can with what we have, which is parlay betting.”

Mike Barlow, Markell’s legal counsel, said he expects legal fees associated with the appeal to total about $70,000, which will be paid by the three casinos.

Paul Clement, an attorney representing the sports leagues, said he was gratified by the decision.

Clement and Kenneth Nachbar, a Delaware attorney also representing the leagues, said the case didn’t meet the traditional criteria for the Supreme Court to accept what is known as a petition for certiorari, but Clement noted that a petition is likely to be given greater weight when a state is seeking the appeal.

“Whenever a state asks for certiorari, the court probably takes a closer look,” Clement said.

“It’s certainly an interesting case on some level, with the subject matter,” he added.

Despite losing the appeal, Delaware still maintains a competitive gambling advantage over neighboring states by being the only state east of the Rocky Mountains in which wagering on the NFL is legal.

In its first year, the sports betting lottery brought in just under $1.6 million in new revenue to the state’s general fund. Officials expect additional gambling revenue with the launch of table games in the next several weeks, but total gambling revenue is expected to decline over the next two fiscal years because of new slot machine competition in Maryland and Pennsylvania.

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