An attorney for the NFL, which opposes the lottery, said the league would wait for the justices' opinions before deciding whether to challenge the wagering legislation in court. Delaware is one of only four states grandfathered under a 1992 federal law that bans sports gambling.
The five justices listened to court-appointed attorneys to help them determine whether they should even issue an opinion because the bill has already been signed into law and, more importantly, that the administration has yet to adopt specific games.
As envisioned by Markell, the sports lottery would allow straight bets on the outcome of athletic events, using a point spread or money line to ensure roughly equal amounts of wagers on each side. It would also allow over/under betting on the total score of a game; and parlay bets in which players must select two or more elements, such as the winner of two or games or two or more over/under bets.
Among the issues facing the court are whether chance, rather than the skill, must and will be the predominant factor in wagering, particularly in straight betting and whether the state, which would contract with a licensed bookmaker, would control the lottery, as required by the constitution.
Markell said the estimated $53 million the betting bill would bring to the state next year through wagering, licensing fees, and a higher take of slot machine revenue, is one key to closing a projected budget shortfall of more than $600 million.
"The sports lottery presents a huge opportunity for the state of Delaware," said Andre Bouchard, an attorney tasked with defending the state's plan.
But sports wagering could face legal challenges before it's barely out of the gate.
The NFL, which claims sports betting would tarnish the image of athletics and lure young people into gambling, has staunchly fought the idea. Attorneys for the NFL submitted briefs to the court and participated in Thursday's oral arguments.
"I think the NFL is going to wait to see what the Supreme Court will do," Kenneth Nachbar, who argued on behalf of the league, said when asked about the possibility of litigation.
The justices, who could issue a collective or separate opinions, gave no indication on when those might be ready.
"We will work as quickly as humanly possible," Chief Justice Myron Steele said.
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