US 3rd Circuit's Ruling Against Delaware Sports Betting
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-3297
OFC COMM BASEBALL, an unincorporated association
doing business as Major League Baseball; NATL
BASKETBALL ASSN, a joint venture; NATL
COLLEGIATE ATHLETIC ASSN, an unincorporated
association; NATL FOOTBALL LEAGUE, an
unincorporated association; NATL HOCKEY LEAGUE, an
unincorporated association,
Appellants,
v.
JACK A. MARKELL, Governor of the State of Delaware;
WAYNE LEMONS, Director of the Delaware State Lottery
Office,
Appellees.
On Appeal from the United States District Court
for the District of Delaware
(D.C. No. 09-cv-00538)
District Judge: Honorable Gregory M. Sleet
Argued August 24, 2009
Before: McKEE, FUENTES and HARDIMAN, Circuit
Judges.
(Filed: August 31, 2009)
Kenneth J. Nachbar [Argued]
Pauletta J. Brown
Megan W. Cascio
Susan W. Waesco
Morris, Nichols, Arsht & Tunnell
1201 North Market Street
P.O. Box 1347
Wilmington, DE 19899-0000
Attorneys for Appellants
Andre G. Bouchard [Argued]
Joel E. Friedlander [Argued]
Sean M. Brennecke
David J. Margules
Bouchard, Margules & Friedlander
Suite 1400
Wilmington, DE 19801-0000
Attorneys for Appellees
3
OPINION OF THE COURT
HARDIMAN, Circuit Judge.
In this interlocutory appeal we review an order of the
United States District Court for the District of Delaware denying
a motion for preliminary injunction filed by the National
Football League, the National Basketball Association, the
National Hockey League, the Office of the Commissioner of
Baseball, and the National Collegiate Athletic Association
(collectively, Leagues). The Leagues sought to enjoin Delaware
state officials from implementing certain elements of its Sports
Lottery Act (Act), Del. Laws Ch. 28 (H.B. No. 100) (2009), 29
Del. Code § 4801 et seq., on September 1, 2009. As we shall
explain, we need not decide whether the District Court's denial
of the Leagues' preliminary injunction was proper because we
hold as a matter of law that elements of Delaware's sports
lottery violate federal law.
I.
In March 2009, the Governor of Delaware, Jack Markell,
proposed legislation authorizing sports betting and table gaming
at existing and future facilities in Delaware. On March 19,
Governor Markell sought an advisory opinion from the
Delaware Supreme Court pursuant to 10 Del. Code § 141 and 29
Del. Code § 2102, regarding the constitutionality of his proposal
under the Delaware Constitution. In a letter to the Delaware
Supreme Court, Governor Markell described three types of
1
Under regulations proposed pursuant to the Act,
Delaware intends to offer three games: Single Game Lottery,
Total Lottery, and Parlay Lottery. In Single Game Lottery,
bettors must select the winning team in a single sports contest
against a point spread. In Total Lottery, the bettor gambles on
whether the total number of points scored by both teams in a
single contest will be over or under a specified sum. The final
game, Parlay Lottery, combines elements of the first two games
in asking bettors to correctly choose the winners of two or more
sports contests, or two or more over/under bets, or some
combination of winners and over/under bets.
4
proposed sports gambling: (1) point-spread bets on individual
games; (2) over/under bets on individual games; and (3) multi-
game parlay bets.1 On May 14 - while the request for an
advisory opinion from the Delaware Supreme Court was
pending - Governor Markell signed the Act into law. In re
Request of Governor for an Advisory Opinion (In re Request of
Governor), --- A.2d ---, No. 150, 2009, 2009 WL 1475736, at *2
(Del. May 29, 2009).
After hearing oral argument, the Delaware Supreme
Court issued an opinion on May 29, which found that multi-
game betting would not violate state law. In analyzing the
legality of the Act and the "lotteries" proposed pursuant to the
Act, the Delaware Supreme Court relied heavily on Judge
Stapleton's decision in National Football League v. Governor
of the State of Delaware (NFL), 435 F. Supp. 1372 (D. Del.
1977). That case concerned the NFL's challenge to a sports
betting scheme known as "Scoreboard" that Delaware conducted
during the 1976 season. Scoreboard was comprised of three
5 games: Football Bonus, Touchdown, and Touchdown II. In
Football Bonus, the State offered two pools of seven NFL games
each and bettors had to predict the winners - without a point
spread - in one or both of the pools. In Touchdown, bettors
selected both the winners and point spreads for either three,
four, or five NFL games. Finally, Touchdown II - which
replaced Touchdown midway through the season - required
bettors to pick the winners, against the point spread, for between
four and twelve NFL games. All of the Scoreboard games
conducted in 1976 were confined to betting on the NFL, and all
required that the bettor wager on more than one game at a time.
In NFL, Judge Stapleton held such wagering was
permissible under the Delaware Constitution because chance is
the "dominant factor" in multi-game (parlay) betting. The
Delaware Supreme Court reached the same conclusion in its
advisory opinion, In re Request of Governor, 2009 WL
1475736, at *8, but did not decide the constitutionality of single-
game betting, except to recognize that it differs from the parlay
games addressed by Judge Stapleton. Id. The Delaware
Supreme Court did not address the federal statutory question
presented in this appeal.
Following receipt of the Delaware Supreme Court's
advisory opinion, on June 30 the State published its proposed
regulations to implement the Act (Regulations). According to
the Regulations, Delaware intends to implement a sports betting
scheme that would include wagers "in which the winners are
determined based on the outcome of any professional or
collegiate sporting event, including racing, held within or
without the State, but excluding collegiate sporting events that
2
The PASPA claim was brought at Count I. The
Leagues also brought a claim under state law at Count II, which
alleged that the sports betting scheme violates Section 17 of the
Delaware Constitution because it does not constitute a
permissible "lottery." The state-law claim is not at issue in this
appeal.
6
involve a Delaware college or university, and amateur or
professional sporting events that involve a Delaware team."
A168. Delaware's proposed sports betting scheme includes
single-game betting in addition to multi-game (parlay) betting,
as the Regulations define the term "maximum wager limit" to
include "the maximum amount that can be wagered on a single
sports lottery wager be it head-to-head or parlay . . . ." A168
(Regulations § 2.0, definition of "maximum wager limit")
(emphasis added).
Delaware intends to commence its sports betting scheme
on September 1, 2009, in time for the start of the upcoming NFL
regular season. Though the NFL is its focus, Delaware intends
to conduct - and the Regulations sanction - betting on all
major professional and college sports.
II.
On July 24, the Leagues filed a complaint against
Governor Markell and Wayne Lemons, the Director of the
Delaware State Lottery Office (collectively, Delaware or State),
claiming that elements of Delaware's proposed sports betting
scheme violate the Professional and Amateur Sports Protection
Act (PASPA), 28 U.S.C. § 3701, et seq.2 Although PASPA has
7
broadly prohibited state-sponsored sports gambling since it took
effect on January 1, 1993, the statute also "grandfathered"
gambling schemes in individual states "to the extent that the
scheme was conducted by that State" between 1976 and 1990.
Four days after filing their complaint, the Leagues filed
a motion for preliminary injunction, requesting that the District
Court enjoin the State "from commencing, instituting, operating
and maintaining a proposed ‘sports lottery' to the extent that
such lottery permits (i) single-game sports betting, (ii) betting on
sports other than professional football, or (iii) any other sports
betting scheme that was not conducted by the State of Delaware
in 1976" pending final adjudication of the Leagues' action.
The District Court held a scheduling conference on July
29 at which it urged the parties to reach an agreement by which
the State would "stand down" pending an expedited adjudication
of the merits. A268. The parties could not reach such an
agreement, however, so the District Court asked for written
submissions and held a conference on August 5. Following the
conference, the court orally denied the Leagues' motion and
scheduled a trial for December 7. On August 10, the District
Court issued a 13-paragraph memorandum order explaining its
reasons for denying the injunction.
In its memorandum order, the District Court found that
the Leagues had not shown a likelihood of success on the merits.
Office of Comm'r of Baseball v. Markell, --- F. Supp. 2d ---,
2009 WL 2450284, at *1 (D. Del. Aug. 10, 2009). Noting that
"both sides vigorously and ably contend that they are entitled to
win on the merits," the District Court stated: "On the current
8
record, the court is simply not in a position to give either side a
nod on the merits. Indeed, there may exist factual disputes as to
what, if anything, the State of Delaware actually did in the past
with respect to sports gambling; or as to what, if any, proposed
sports betting activities are exempted by the federal statute at
issue." Id. at *2. The District Court also noted that the Leagues
suggested in their letter brief that the court treat their motion for
preliminary injunction as a motion for summary judgment and
questioned whether the Leagues had demonstrated both the
requisite irreparable harm and that the balance of the equities
fell in their favor. See id. at *2-4.
On August 7 - prior to receipt of the District Court's
memorandum opinion - the Leagues filed their notice of
appeal. Three days later, the Leagues filed a motion to expedite
their appeal and their opening brief. On August 12, Delaware
filed a motion to dismiss the appeal and its opposition to the
Leagues' motion to expedite. On August 13, we granted the
Leagues' motion to expedite, issued a briefing schedule, and set
oral argument for August 24.
It is often noted that the wheels of justice move slowly -
and for good reason. As the procedural history of this case
demonstrates, however, that is not always the case. When a
party seeks injunctive relief, the stakes are high, time is of the
essence, and a straightforward legal question is properly
presented to us, prudence dictates that we answer that question
with dispatch.
III.
9
We begin, as always, by considering whether we have
jurisdiction to hear this appeal. The Leagues claim we have
jurisdiction under 28 U.S.C. § 1292(a), which provides: "courts
of appeals shall have jurisdiction of appeals from: (1)
Interlocutory orders of the district courts . . . granting,
continuing, modifying, refusing, or dissolving injunctions."
(emphasis added). The State disagrees, arguing that we must
apply the test set forth in Carson v. American Brands, Inc., 450
U.S. 79 (1981), which requires the Leagues to show that the
District Court's denial of the motion for preliminary injunction
(1) will have a serious, perhaps irreparable, consequence; and
(2) can be effectively challenged only by immediate appeal. Id.
at 83; see also Stringfellow v. Concerned Neighbors In Action,
480 U.S. 370, 379 (1987).
In arguing that the Leagues must establish the Carson
factors, Delaware relies on dicta from some of our prior cases
stating that both orders expressly denying injunctions and orders
having the practical effect of denying injunctions must meet the
two-prong Carson test. See Vuitton v. White, 945 F.2d 569, 574
(3d Cir. 1991); Ross v. Zavarella, 916 F.2d 898, 902 (3d Cir.
1990). But none of the cases upon which Delaware relies
involved express denials of injunctive relief; rather, they dealt
with orders that were alleged to have the practical effect of
denying injunctive relief. Accordingly, the Leagues need not
demonstrate that the order will have a "serious, perhaps
irreparable, consequence" and can be "effectively challenged"
only by immediate appeal. See Cohen v. Bd. of Trs. of Univ. of
Med., 867 F.2d 1455, 1464 (3d Cir. 1989). The language of
§1292(a)(1) is clear and the Leagues need not satisfy any
3
Section 2106 provides: "The Supreme Court or any
other court of appellate jurisdiction may affirm, modify, vacate,
set aside or reverse any judgment, decree, or order of a court
lawfully brought before it for review, and may remand the cause
and direct the entry of such appropriate judgment, decree, or
order, or require such further proceedings to be had as may be
just under the circumstances."
10
jurisdictional hurdle beyond the fact that they have appealed
from an order refusing to enter an injunction.
We next turn to the scope of our review under 28 U.S.C.
§ 1292(a). We have adopted a broad view of appellate
jurisdiction under this section. See Kershner v. Mazurkiewicz,
670 F.2d 440, 445 (3d Cir. 1982); see also 16 CHARLES ALAN
WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL
PRACTICE AND PROCEDURE § 3921.1, at 28 (2d ed. 1996)
("Jurisdiction of the interlocutory appeal [under § 1292(a)(1)] is
in large measure jurisdiction to deal with all aspects of the case
that have been sufficiently illuminated to enable decision by the
court of appeals without further trial court development.").
Moreover, we have held that "[w]hen an appeal is taken from an
order made appealable by statute, we have all the powers with
respect to that order listed in 28 U.S.C. § 2106."3 United Parcel
Serv., Inc. v. U.S. Postal Serv., 615 F.2d 102, 107 (3d Cir.
1980). Accordingly, we have broad authority to decide this case
as appropriate under § 2106.
Having determined that we have authority to address all
aspects of this case, we must determine whether it is proper to
exercise that authority. "As a general rule, when an appeal is
11
taken from the grant or denial of a preliminary injunction, the
reviewing court will go no further into the merits than is
necessary to decide the interlocutory appeal." Callaway v.
Block, 763 F.2d 1283, 1287 n.6 (11th Cir. 1985). This
ordinarily requires that we review the decision to grant or deny
a preliminary injunction for abuse of discretion, employing the
standard four-factor test. See Allegheny Energy, Inc. v. DQE,
Inc., 171 F.3d 153, 158 (3d Cir. 1999). Nevertheless, the
Supreme Court has held the "general rule" of limited review is
one of "orderly judicial administration, not a limit on judicial
power." Thornburgh v. Am. Coll. of Obstetricians &
Gynecologists, 476 U.S. 747, 757 (1986), overruled on other
grounds by Planned Parenthood of Se. Penn. v. Casey, 505 U.S.
833 (1992).
In Thornburgh, the Supreme Court considered whether
this Court properly exercised its jurisdiction in striking down
portions of a Pennsylvania statute following an appeal from the
district court's partial denial of a preliminary injunction. See id.
at 755-57. The Supreme Court acknowledged that review of a
preliminary injunction is normally limited to the injunction
itself, but explained: "if a district court's ruling rests solely on
a premise as to the applicable rule of law, and the facts are
established or of no controlling relevance, that ruling may be
reviewed even though the appeal is from the entry of a
preliminary injunction." Id. At the same time, the Supreme
Court cautioned: "A different situation is presented . . . when
there is no disagreement as to the law, but the probability of
success on the merits depends on facts that are likely to emerge
at trial." Id. at 757 n.8. In affirming this Court's decision to
12
address the merits of the plaintiff's case, the Supreme Court
quoted from our opinion:
Thus, although this appeal arises from a ruling on
a request for a preliminary injunction, we have
before us an unusually complete factual and legal
presentation from which to address the important
constitutional issues at stake. The customary
discretion accorded to a district court's ruling on
a preliminary injunction yields to our plenary
scope of review as to the applicable law.
Id. at 757 (quoting Am. Coll. of Obstetricians & Gynecologists
v. Thornburgh, 737 F.2d 283, 290 (3d Cir. 1984)).
The approach taken in Thornburgh has been embraced by
a number of our sister courts of appeals. In an appeal from the
grant of a preliminary injunction in Campaign for Family Farms
v. Glickman, 200 F.3d 1180 (8th Cir. 2000), the Court of
Appeals for the Eighth Circuit exercised its discretion to reach
the merits of the underlying dispute, determining that it was
"faced with a purely legal issue on a fixed . . . record." Id. at
1186-87. The court explained: "[t]he considerations that caution
against a broad scope of review in the usual interlocutory appeal
- that is, a tentative and provisional record with conflicting
material facts - simply are not present here." Id. at 1187.
Likewise, in Solantic, LLC v. City of Neptune Beach, 410 F.3d
1250 (11th Cir. 2005), the Court of Appeals for the Eleventh
Circuit assessed the merits of the plaintiff's First Amendment
claim on appeal after the district court denied his request for a
preliminary injunction. Finding that the facts of the case were
13
"simple and straightforward, and the record need[ed] no
explanation," id. at 1274, the court explained that "we do not
think it necessary or prudent to confine our opinion to holding
that [the plaintiff] has shown a likelihood of success on the
merits, when it is altogether clear that [the plaintiff] will succeed
on the merits of its First Amendment claims," id. at 1272
(emphasis in original). Finally, in Doe v. Sundquist, 106 F.3d
702 (6th Cir. 1997), the Court of Appeals for the Sixth Circuit
considered the merits of the plaintiffs' claim following a denial
of their preliminary injunction motion. The court noted that
"[i]f an issue unaddressed by the district court is presented with
sufficient clarity and completeness and its resolution will
materially advance the progress of the litigation," consideration
of that issue is proper. Id. at 707 (internal quotation marks and
citation omitted). The court explained that "[t]he sort of judicial
restraint that is normally warranted on interlocutory appeals
does not prevent us from reaching clearly defined issues in the
interest of judicial economy." Id. (citation omitted).
In light of Thornburgh and its progeny, we must
determine whether the record in this appeal presents "a pure
question of law" that is "intimately related to the merits of the
grant [or denial] of preliminary injunctive relief," United Parcel
Serv., 615 F.2d at 107, or whether the Leagues' "probability of
success on the merits depends on facts that are likely to emerge
at trial," Thornburgh, 476 U.S. at 757 n.8. For the reasons that
follow, we conclude that this case falls into the former category.
In denying the Leagues' motion for preliminary
injunction, the District Court hypothesized that "there may exist
factual disputes as to what, if anything, the State of Delaware
4
Because we reach the merits of this case, we need not
consider the parties' arguments regarding irreparable harm and
the balancing of the equities.
14
actually did in the past with respect to sports gambling or as to
what, if any, proposed sports betting activities are exempted by
the federal statute at issue." Markell, 2009 WL 2450284, at *2
(emphasis added). Contrary to the District Court's supposition,
we have reviewed the record and cannot find any material issues
of fact in dispute. As the Leagues rightly argue, Judge
Stapleton's opinion in NFL is the definitive word regarding the
scope and extent of Delaware's gambling scheme as it was
conducted in 1976; the State neither challenged Judge
Stapleton's findings 33 years ago nor does so now. Likewise,
the parties do not dispute the scope and extent of the sports
gambling scheme that Delaware intends to implement on
September 1. As counsel for Delaware properly and candidly
conceded at oral argument, the State intends to conduct
widespread betting on both professional and college sports
beyond the scope of the football-only parlays permitted in 1976.
In sum, the parties agree upon what Delaware did in 1976 and
what Delaware intends to do now. Given the absence of any
disputed issue of material fact - as confirmed by both parties
at oral argument - we conclude that this case does not turn on
a "legal issue that might be seen in any different light after final
hearing," United Parcel Serv., 615 F.2d at 107, and is ripe for
adjudication as a matter of law. Therefore, we will proceed to
assess the merits of the Leagues' claim that Delaware's sports
betting scheme violates PASPA.4
IV.
15
We begin our legal analysis with the statutory language.
PASPA prohibits any person or governmental entity from
sponsoring, operating, advertising or promoting:
a lottery, sweepstakes, or other betting, gambling,
or wagering scheme based, directly or indirectly
(through the use of geographical references or
otherwise), on one or more competitive games in
which amateur or professional athletes participate,
or are intended to participate, or on one or more
performances of such athletes in such games.
28 U.S.C. § 3702. The statute contains four exceptions, only
one of which is relevant here. That exception provides that
PASPA's general prohibition against sports betting shall not
apply to: "lottery, sweepstakes, or other betting, gambling, or
wagering scheme in operation in a State or other governmental
entity, to the extent that the scheme was conducted by that
State or other governmental entity at any time during the period
beginning January 1, 1976, and ending August 31, 1990." 28
U.S.C. § 3704(a) (emphasis added).
Not surprisingly, the parties view PASPA's language
differently, with both sides claiming that the plain language
requires a favorable result on the merits.
A.
Delaware contends that its sports betting scheme qualifies
for the exception in § 3704(a)(1), claiming: "[t]he plain
language of the pertinent PASPA exemption allows Delaware to
16
reintroduce a sports lottery under State control because
Delaware conducted such a scheme at some time between
January 1, 1976, and August 31, 1990." Del. Br. at 3. The State
also contends that the exemption "is broad in scope, and
nowhere states that it restricts Delaware to operating particular
lottery games for a particular sport." Id. at 32. In Delaware's
view, § 3704(a)(1) allows it to conduct any "sports lottery under
State control," id., because it did so in 1976. Although the State
acknowledges, as it must, that the exception permits its lottery
only "to the extent that the scheme was conducted," it argues
that the word "scheme" refers neither to the three particular
games it offered in 1976, nor to parlay betting in general, nor
even to wagering on NFL games, but to a "sports lottery under
State control in which the winners of lottery games were
affiliated with the outcome of sporting events." Id. at 33.
Even assuming that Delaware's interpretation of the word
"scheme" were persuasive, we must reconcile that interpretation
with the statutory language "to the extent that the scheme was
conducted by that State." (emphasis added). The State claims
that this phrase merely "identifies a condition (i.e., that a State
must have conducted a sports lottery in the past in order to be
permitted to operate a sports lottery in the future)," id. at 34,
rather than limiting the State's gaming authority to either the
particular sports or types of games previously offered.
Delaware argues that because state law previously authorized a
broad lottery encompassing many types of games and many
sports, it may now institute a broad lottery with those features.
In contrast to Delaware's argument, the Leagues contend
that the exception in § 3704(a)(1) applies only to lotteries or
17
other schemes "to the extent" that such lottery or scheme "was
conducted" by the State between January 1, 1976 and August
31, 1990. The Leagues insist that it is not sufficient that a
particular lottery may have been contemplated, or even
authorized, but rather we must consider the specific means by
which the lottery was actually conducted.
We agree with the Leagues' interpretation. As the
exception found at § 3704(a)(2) makes clear, there is a
distinction between wagering schemes that were merely
"authorized" and those that were "conducted." See 28 U.S.C. §
3704(a)(2) (which applies to a wagering scheme that was both
(i) "authorized by a statute as in effect on October 2, 1991," and
(ii) "actually was conducted during the period beginning
September 1, 1989 and ending on October 2, 1991"). Whatever
the breadth of the lottery authorized by Delaware state law in
1976, PASPA requires us to determine "the extent" - or degree
- to which such lottery was conducted. We cannot hold - as
the State impliedly suggests - that Congress meant to conflate
"authorized" and "conducted." See BFP v. Resolution Trust
Corp., 511 U.S. 531, 537 (1994) ("It is generally presumed that
Congress acts intentionally and purposefully when it includes
particular language in one section of a statute but omits it in
another."); Alaka v. Attorney General, 456 F.3d 88, 97-98 (3d
Cir. 2006) ("It is a fundamental canon of statutory construction
that where sections of a statute do not include a specific term
used elsewhere in the statute, the drafters did not wish such a
requirement to apply."). Thus, the sole exception upon which
Delaware relies - applicable to wagering schemes dating back
to 1976 - applies only to schemes that were "conducted." 28
U.S.C. § 3704(a)(1).
18
While minimizing the importance of the language of §
3704(a)(2), Delaware asks us to draw parallels to § 3704(a)(3),
which provides:
a betting, gambling, or wagering scheme, other
than a lottery described in paragraph (1),
conducted exclusively in casinos located in a
municipality, but only to the extent that- (A)
such scheme or a similar scheme was authorized,
not later than one year after the effective date of
this chapter, to be operated in that municipality;
and (B) any commercial casino gaming scheme
was in operation in such municipality throughout
the 10-year period ending on such effective date
pursuant to a comprehensive State regulation
authorized by that State's constitution and
applicable solely to such municipality[.]
(emphasis added). Delaware argues that the phrase "to the
extent" must mean the same thing in § 3704(a)(1) as it does in
§ 3704(a)(3), where the phrase identifies a condition. We reject
this argument out of hand because the exception contained in §
3704(a)(3) - which deals with casinos - differs in subject
matter, structure, and syntax from the language of § 3704(a)(1).
As a fallback position, Delaware argues that PASPA is
ambiguous such that resort to legislative history is necessary.
We disagree, because as we have noted:
A statutory provision is not ambiguous simply
because by itself, [it is] susceptible to differing
5
Delaware spends several pages of its brief explaining
the legislative history and citing statements from various
legislators. These statements are inconclusive at best. When we
view them in their entirety rather than focusing on "cherry-
picked" snippets, they offer no consistent insight into
Congressional intent. For example, the Senate Report upon
which Delaware relies, Del. Br. at 13, states that the exemption
in § 3704(1) "is not intended to prevent . . . Delaware from
expanding their sports betting schemes into other sports as long
as it was authorized by State law. . . . At the same time,
paragraph (1) does not intend to allow the expansion of sports
lotteries into head-to-head betting . . . ." A152 (Senate Report).
This excerpt from the Senate Report is unhelpful in two
respects. First, it is at odds with PASPA's statutory language.
19
constructions because in addition to the statutory
language . . . itself, we take account of the
specific context in which that language is used,
and the broader context of the statute as a whole.
We assume, for example, that every word in a
statute has meaning and avoid interpreting one
part of a statute in a manner that renders another
part superfluous.
Disabled in Action v. SEPTA, 539 F.3d 199, 210 (3d Cir. 2008)
(internal quotations and citations omitted). Applying these
principles of statutory construction, we find unambiguous the
phrase "to the extent that the scheme was conducted by that
State," so our "inquiry comes to an end." Kaufman v. Allstate
N.J. Ins. Co., 561 F.3d 144, 155 (3d Cir. 2009) (citation
omitted).5
Second, it contradicts Delaware's claim that single-game
wagering is permitted. Similarly unhelpful are the many
statements of individual legislators cited by Delaware because
such "cherry-picked" statements cannot be deemed to reflect the
views of other legislators, much less of a majority of those who
enacted the statute. Szehinskyi v. Attorney General, 432 F.3d
253, 256, (3d Cir. 2005) ("[Appellant's] selective invocation of
fragments of the floor debate is an object lesson in the perils of
appealing to this particular kind of legislative history as a guide
to statutory meaning. This case is a perfect illustration of the
well-known admonition that what individual legislators say a
statute will do, and what the language of the statute provides,
may be far apart indeed. The law is what Congress enacts, not
what its members say on the floor."). In sum, we conclude that
"[t]he legislative history is more conflicting than the text is
ambiguous," Wong Yang Sung v. McGrath, 339 U.S. 33, 49
(1950), and does not support the State's position.
20
Because we do not find PASPA ambiguous, we find
unpersuasive Delaware's argument that its sovereign status
requires that it be permitted to implement its proposed betting
scheme. See Gregory v. Ashcroft, 501 U.S. 452, 460-61 (1991)
("[A]bsent an unmistakably clear expression to alter the usual
constitutional balance between the States and the Federal
Government, [federal courts] will interpret a statute to preserve
rather than destroy the States' substantial sovereign powers.")
(internal quotations omitted). PASPA unmistakably prohibits
state-sponsored gambling, 28 U.S.C. § 3702, subject to certain
exceptions, 28 U.S.C. § 3704. Through PASPA, Congress has
"altered the usual constitutional balance" with respect to sports
wagering, although Delaware retains the right to implement a
21
sports wagering scheme "to the extent that the scheme was
conducted" previously. Those words of limitation are not
rendered nugatory by generalized notions of "state sovereignty."
Finally, Delaware argues that we cannot construe the
language "to the extent that the scheme was conducted" so
narrowly because doing so would render the PASPA exception
a nullity. Certain aspects of Scoreboard were deemed
impermissible by either Judge Stapleton, NFL, 435 F. Supp. at
1387-88 (holding that Touchdown II violated the lottery
provision of the Delaware Constitution by utilizing a fixed-
payoff scheme), or the Delaware Supreme Court, Op. of the
Justices, 385 A.2d 695, 705 (Del. 1978) (striking down Football
Bonus and Touchdown because they awarded prizes on a pari-
mutuel basis in violation of the State's Constitution).
Consequently, the State reasons that if it is confined to the exact
scheme conducted in 1976, the exception would be illusory as
applied to Delaware. The State argues that Congress could not
have intended this result, especially when the legislative history
makes clear that Delaware was one of only four states that were
intended beneficiaries of the exception. See Conn. Nat'l Bank
v. Germain, 503 U.S. 249, 253 (1992) (courts should disfavor
interpretations of statutes that render language superfluous).
Delaware's reading overstates the narrowness of the
exception provided by § 3704(a)(1). We do not hold that
PASPA requires Delaware's sports lottery to be identical in
every respect to what the State conducted in 1976. Certain
aspects of the lottery may differ from the lottery as conducted in
1976, as long as they do not effectuate a substantive change
from the scheme that was conducted during the exception
22
period. For example, as the State aptly noted - and the
Leagues conceded - at oral argument, "to the extent the
scheme was conducted" cannot mean that Delaware could
institute a sports betting scheme for only four months as was
done in 1976. Likewise, Delaware is neither limited to selling
tickets at identical venues nor prohibited from allowing
wagering on NFL teams that did not exist in 1976. Such de
minimis alterations neither violate PASPA's language nor do
violence to its central purposes, viz., to limit the spread of state-
sponsored sports gambling and maintain the integrity of sports.
By contrast, expanding the very manner in which Delaware
conducts gambling activities to new sports or to new forms of
gambling - namely single-game betting - beyond "the extent"
of what Delaware "conducted" in 1976 would engender the very
ills that PASPA sought to combat. In construing statutes, we
consider the statute's overall object and policy, and avoid
constructions that produce "odd" or "absurd" results or that are
"inconsistent with common sense." Disabled in Action, 539
F.3d at 210 (internal citations omitted).
B.
In light of our reading of PASPA, we determine what
scheme Delaware may conduct in 2009 with reference to the
scheme it conducted in 1976. As Judge Stapleton held in NFL
- and as was not disputed in the proceedings before either the
District Court or our Court in this matter - the only sports
betting scheme "conducted" by Delaware in 1976 involved the
three Scoreboard games. That betting scheme was limited to
multi-game parlays involving only NFL teams. Thus, any effort
23
by Delaware to allow wagering on athletic contests involving
sports beyond the NFL would violate PASPA. It is also
undisputed that no single-game betting was "conducted" by
Delaware in 1976, or at any other time during the time period
that triggers the PASPA exception. See NFL, 435 F. Supp. at
1385 ("None of the [1976] games permits head-to-head or single
game betting."). Because single-game betting was not
"conducted" by Delaware between 1976 and 1990, such betting
is beyond the scope of the exception in § 3704(a)(1) of PASPA
and thus prohibited under the statute's plain language.
Under federal law, Delaware may, however, institute
multi-game (parlay) betting on at least three NFL games,
because such betting is consistent with the scheme to the extent
it was conducted in 1976. Of course, we express no opinion
regarding the legality of such a scheme under Delaware
statutory or constitutional law.
For the foregoing reasons, we will vacate the order of the
District Court and remand for proceedings consistent with this
opinion.
