Delaware Supreme Court Paves the Way for Betting on NFL Games

Jun 5, 2009

Agreeing with Delaware Gov. Jack Markell, who signed a law permitting sports betting in early May, the Delaware Supreme Court found late last month that lotteries, such as sports betting, can “involve an element of skill, as long as chance predominates” and not run afoul of the state’s Constitution.
The ruling reverberated throughout the professional sports world, especially with regard to the NFL, which had tried to prevent passage of the law and is currently considering a lawsuit.
“We will review the Delaware Supreme Court’s advisory opinion on this matter,” the NFL said in a statement. “We do not believe that promoting additional betting on college and professional athletes and games is healthy for sports.”
In essence, the high court held that a law allowing sports betting does not conflict with the state’s Constitution, which permits lotteries that have an element of skill, as long as chance essentially decides the outcome.
“This decision resolves the legal issues that have been presented and provides a solid legal framework for our sports lottery,” the governor said in a statement.
The sports lottery is designed to permit three kinds of bets: single-game using a point spread; over-under bets on the total number of points scored, and parlays in which, for example, a bettor picks the winner of more than one game.
In the advisory opinion, the court took a close look at whether lotteries under the Delaware Constitution must be games of pure chance, or predominantly chance. The high court relied on case law in making that determination in light of the fact that the Constitution does not define the term “lottery.”
In particular, it focused on a 1977 ruling involving the NFL’s challenge of Delaware’s first sports lottery, in which a federal judge ruled that lotteries need not be matters of pure chance. ( “An element of calculation or even of certainty” could be involved, as long as chance was the dominant or controlling factor.
The court also found that the proposed sports lottery satisfies the Constitutional requirement that lotteries be under state control, even though Delaware, which is one of four states grandfathered under a 1992 federal law that bans sports gambling, would hire a licensed bookmaker, who may not be a state employee.
The NFL was represented by Kenneth Nachbar in oral arguments before the Supreme Court. For the full opinion, click here:


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