The Delaware Supreme Court issued its advisory opinion May 28 on the sports lottery law signed by Gov. Jack Markell earlier that month.
All five of the court’s justices concluded that betting on sports contests does constitute a legal “lottery” under the state constitution, but they did not offer an opinion on the legality of single-game betting.
The 22-page opinion also held that the Delaware Constitution does not require lottery games to be based on chance alone, and that games that require some skill to win are permissible. However, chance still must be the “dominant factor” in determining the outcome of a wager, the justices wrote.
The opinion came exactly one week after the court heard oral arguments for and against the law from two handpicked Wilmington attorneys and one lawyer retained by the National Football League.
In a statement, Markell said he was happy with the court’s answer.
“This decision resolves the legal issues that have been presented and provides a solid legal framework for our sports lottery,” he said. “With this guidance in hand, we are moving forward with implementing a successful sports lottery in Delaware.”
Though the court upheld the core principles of the law, one important and much debated component was missing from the opinion.
Supporters of the law had hoped the justices would take a stance on the legality of single-game wagers, also known as straight bets. Straight bets — wherein bettors pick a winning team based on a pre-set line — are widely regarded as the most profitable form of betting, for the house, that is.
The other popular but less profitable form of sports betting is known as a parlay system, which requires a bettor to pick the outcome of several games in a single wager.
The court used a 1977 decision by Judge Walter K. Stapleton to uphold the legality of parlay betting. That decision was rendered after the NFL sued Delaware for offering a football parlay game during the 1976 season.
However, the justices wrote that since no Delaware case law exists related to straight bets, there is no proper evidence record on which to base their opinion on straight bets.
In order to determine whether the outcome of a straight bet relies on chance as the dominant factor, therefore making it legal, a formal evidence record would need to be established, they wrote.
“Judge Stapleton required six days of evidentiary hearings, presentation of expert testimony and extensive briefing,” the justices wrote. “Because we lack the benefit of actual evidence concerning single game bets and the extent to which ‘the line’ introduces chance and causes it to predominate over skill or merely manages the money flow, we cannot opine on the constitutionality of single game bets.”
The opinion far from prohibits straight bets and the governor’s office confirmed that it will direct the State Lottery Office to begin designing a sports lottery system that includes straight bets.
Markell is counting on the successful implementation of sports betting and table games at Delaware’s casinos to raise upward of $50 million and help fill a projected $800 million hole in the state’s Fiscal Year 2010 budget.
When the governor proposed the sports betting initiative in March, he was challenged immediately by the NLF and the NCAA, who said sports betting will hurt their organizations.
The NFL submitted its own brief to the court and was given approximately five minutes to address the court at the May 21 hearing.
Wilmington lawyer Kenneth Nachbar, on behalf of the NFL, argued sports betting is not based on chance, but on the skill of the players and coaches on the field.
The NFL has indicated that it is prepared to pursue legal action to stop sports betting in Delaware, but no lawsuits have yet been filed.
Markell’s spokesman Joe Rogalsky said the governor is more than willing to act diplomatically with the NFL.
“We’ll vigorously defend this if we need to,” he said. “The governor has offered to sit down with [NFL Commissioner] Roger Goodell, show him our state police, show him that this won’t affect the integrity of his sport.”
Email Doug Denison at doug.denison@doverpost.com.
