Paul Clement

Justice Department photo

A former U.S. solicitor general who unsuccessfully challenged President Barack Obama’s Affordable Care Act has been hired to represent five sports organizations in their lawsuit to stop New Jersey from instituting sports betting.

Paul Clement, whose name also has been discussed in the news media as a potential Supreme Court nominee under a Republican administration, has been brought on to represent the NCAA, NBA, NFL, NHL and Office of the Commissioner of Baseball in their federal lawsuit against New Jersey.

His appearance in the case comes after New Jersey hired legal heavyweight Ted Olson to defend the state and its desire to license and regulate sports betting operations. Clement and Olson are highly regarded constitutional experts — both formerly serving as U.S. solicitor general under President Geroge W. Bush, with Clement succeeding Olson in the post.

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The insertion of what many consider to be two of the top lawyers in the country to the case, in addition to those from two separate law firms for the plaintiff and in-house counsel for the state, demonstrates how much is at stake for both sides, observers said.

“They’re going to bring their A-game,” said Bernard Bell, a Rutgers University constitutional law professor. “There’s certainly, I suspect, a substantial amount of money riding on this. It’s certainly something that has attracted a lot of attention in New Jersey.”

Lawyers for both sides are scheduled to participate in a telephone conference Tuesday afternoon with Magistrate Judge Lois Goodman. A few weeks earlier, each side submitted arguments to Goodman in connection with a request by the state for discovery, including the defense’s desire to depose the commissioners of the five sports organizations. The plaintiff argued the depositions would be irrelevant and was “understood as nothing more than harassment.”

The state also has filed a motion to dismiss the lawsuit, arguing the sports organizations don’t have standing to sue because the Professional and Amateur Sports Protection Act, which bans sports betting in all but the four states that authorized the activity prior to 1992, is unconstitutional. The organizations counter they have standing because the integrity of their games will be harmed if sports betting is allowed in New Jersey. The plaintiffs also argue New Jersey recognizes that harm because its own law prohibits betting on the state’s own college teams.

Some observers have said the state faces an uphill battle in proving the federal law is unconstitutional, however, legalizing sports betting has enjoyed bipartisan support, from Gov. Chris Christie, who signed the state’s sports betting bill into law, to New Jersey legislators who sponsored the bill.

“The constitutionality of the law has never been challenged,” State Sen. Raymond Lesniak, D-Union, said of the federal law. “It’s a presumption that’s so easily overcome when it so clearly violates the Constitution in so many ways.”

Other observers, such as Bell, said he believed the state will have a harder time proving its case with a federal statute in place that contradicts state law. He said the state’s best chances would be to ask the Supreme Court to overturn the federal law.

If the issue were to go to the Supreme Court, Olson and Clement would be two lawyers well suited to argue in front of the bench, although it would be unclear whether the court would choose to hear the case, Bell said.

“They don’t pick many cases,” he said.

Either way, industry observers said they want to see the question of whether the law is constitutional settled.

“There needs to be clarity surrounding this issue,” said Joe Asher, chief executive officer of William Hill US, an arm of the British company that operates sports books in Nevada. “As someone who wants to see these issues resolved, it’s heartening that the best legal minds are on the case.”

In addition to regulating an activity that is now controlled by criminal channels, legal sports betting in New Jersey would likely bring the state tax revenues, Asher said.

“Sports betting in New Jersey is a massive market — think of the population density and just the sports culture that exists in New Jersey.”

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