Interview: Ted Olson

Ted Olson was never a lawyer to be trifled with. He has a penchant for wrangling over the finer points of the US Constitution and has won 75% of his 63 Supreme Court cases.

A long-serving partner in Gibson, Dunn & Crutcher’s Washington, D.C. office, Olson knew Chris Christie, the New Jersey Governor behind the PASPA challenge, from their time working together at the Department of Justice.

Olson was Solicitor General from 2001 to 2004 during George W Bush’s presidency, while Christie served as United States attorney for New Jersey from 2002 to 2008.

Christie went on to become governor of New Jersey in 2010 and the following year voters passed a referendum to allow sports betting at the state's casinos and racetracks.

When a law was passed in 2012 to reflect the result of the referendum opponents argued that it violated the Professional and Amateur Sports Provision Act 1992 (PASPA), leaving Christie to fight the state's corner.

“Once he decided that this was something that New Jersey should undertake – to challenge this federal law – he contacted me and asked whether I’d be willing to handle the case,” Olson recalls.

“Of course, I thought it was a wonderful opportunity to deal with a complicated but important constitutional question. I was delighted that he asked.”

Seven years later, on May 14, 2018, the Supreme Court ruled that prohibiting states’ right to allow sports betting, without mapping out federal regulation around sports wagering, contravened the Constitution, and struck down PASPA.

Six months later, more than half a million dollars has been wagered in the state since the first bets were taken in June.

So how did it take so long to reach this point when the final decision hinged on a relatively straightforward definition of what is constitutional?

“The problem was that we were asking lower courts, inferior courts in the United States – a trial court and then an intermediate appeals court – to strike down as unconstitutional a law of the Congress of the United States and on a theory that most of these courts had not encountered before,” Olson explains.

“We lost several times in the trial court and three times in the intermediate appeals court. That’s why it took so long; it sometimes takes persistence and continuous effort. When we finally got to the Supreme Court, it was pretty clear but it was hard to get there”.

If convincing the lower courts was problematic, then elevating the challenge to the Supreme Court was even harder. The highest US court receives more than 7,000 petitions every year, according to Olson, and only takes around 75 cases.

On top of which, there were only two major Supreme Court precedents for this kind of challenge and both were more than 20 years old.

Olson says it was Christie’s conviction that really drove the case, despite opposition from numerous parties, including the major US professional sports leagues.

“He felt that it was very important for New Jersey not to be in a situation where Nevada could conduct sports betting and the New Jersey casinos and gaming facilities were left in the dark,” Olson explains. “He felt that it was unfair.

“We felt that at the end of the day if we could just get to the finish line we would win and of course we did, but it took perseverance and some courage on behalf of Governor Christie to do that”.

After being denied their first petition, the Supreme Court agreed to hear the second, at which point a successful outcome started to look a lot more feasible.

“The fulcrum that swung the balance, so to speak, was that the first set of court decisions said New Jersey could repeal the laws it had on its books prohibiting sports betting, but when New Jersey did that, the courts and our opponents came and said ‘oh no you can’t really do that’”, he says.

“When we got to the Supreme Court the second time, it was much more obvious that games were being played by our opponents and that the courts weren’t really being fair and honest with respect to this”.

To clarify, Olson says that he does not mean that the courts were “deceitful” in their stance, but that they had been unable to reconcile the lack the lack of clarity in the law until New Jersey was given these conflicting messages.

Then earlier this year, the balance finally tipped in Christie’s favour. “We were very, very gratified,” Olson says.

“The argument was in December and the decision came along in May, so it was six months, when the argument in court took place we were getting a good feeling about the questions that the justices were asking,” he recalls.

“Yet you never know how it’s going to come out, so when the decision did come down in the favour of our clients we were very, very gratified and pleased, and grateful to our clients for having persisted for so long and hanging in there”.

For Olson, the decision rights a fundamental constitutional wrong – providing much needed clarity and shoring up the principles the US legal system is built upon. But he also stands behind the benefits of placing sports wagering into the hands of established, regulated businesses.

“The benefit is going to be that very legitimate businesses that are very concerned with their reputation and interested in obeying the law and keeping the industry fair, safe and open are moving into this market, I think that will be a very healthy outcome”.

Olson is unconvinced by the leagues’ pleas over integrity. “They should be more concerned about integrity when it was being done under the table and in a so called black market,” he argues.

“There’s a lot less risk of integrity or damage or corruption in the games itself, because there are going to be lots of people watching, all of whom would be damaged if the public doesn’t believe that the games are being conducted honourably”.

So, what next? Acknowledging the pressure in Congress to pass a federal statute setting out parameters on sports betting, Olson says until any such law is passed it is unclear whether that could also be considered unconstitutional.

However, he admits that congress probably has bigger fish to fry. “We’ve got a divided Congress between the Republicans and the Democrats coming up starting after the first of the year and they’re having enough trouble agreeing on bridges and airports and railroads and things like that and taxes and healthcare”.

Ted Olson is the keynote speaker at ICE Sports Betting USA in New York today at 9.30am ET.

You can purchase access to live streamed content direct to your phone, tablet or computer on the ICE Sports Betting USA website now.