Did this 2014 New Jersey AG directive ever take effect, and what does it mean for legal sports betting in New Jersey today?
⚠️ Status: MOOT
This directive and opinion were issued on September 8, 2014. They were superseded almost immediately when Senate Bill 2460, signed by Governor Christie on October 17, 2014, repealed the Sports Wagering Act (N.J.S.A. 5:12A-1 to -6) in its entirety. The Office of the Attorney General has placed a notation directly on the cover of the document declaring it moot and no longer effective.
This page preserves the document as a research record because it played a key historical role in New Jersey's legal path to authorized sports betting and was a stepping stone to the U.S. Supreme Court's 2018 Murphy v. NCAA decision.
Plain-English summary
In 2014, Acting Attorney General John J. Hoffman issued this combined Law Enforcement Directive and Formal Opinion to do something legally creative: tell New Jersey police and prosecutors not to enforce gambling laws against casinos and racetracks operating sports pools, even though a federal court had blocked New Jersey from licensing or affirmatively authorizing sports betting.
The legal background was the Professional and Amateur Sports Protection Act (PASPA, 28 U.S.C. § 3701 et seq.), a 1992 federal law that prohibited states from "authorizing" sports wagering. New Jersey passed the Sports Wagering Act (N.J.S.A. 5:12A-1 to -6) in 2012 to license and regulate sports betting at casinos and racetracks. The major sports leagues sued, and the federal courts blocked New Jersey's licensing scheme as PASPA-preempted.
The Third Circuit in N.C.A.A. v. Governor of New Jersey, 730 F.3d 208 (3d Cir. 2013), held that PASPA was constitutional but only barred New Jersey from "authorizing" sports betting, it did not require New Jersey to keep its existing prohibitions on the books. The leagues and the U.S. DOJ both conceded that point. New Jersey could simply repeal its prohibitions; it just couldn't write a new licensing law.
Building on that distinction, AG Hoffman's 2014 directive took the position that:
- The licensing portions of the Sports Wagering Act might be preempted, but the exemption from criminal and civil liability for casinos and racetracks operating sports pools survived (via the statute's severability clause, N.J.S.A. 5:12-2(g)).
- Therefore, casinos and racetracks could legally operate sports pools without licenses, and police should not arrest, prosecutors should not charge, and the AG's office would not seek civil injunctions against them, so long as no bets were placed on college sports involving New Jersey teams or events held in New Jersey (per the constitutional amendment's carve-out).
This was a bold "partial repeal" theory: don't authorize, just decriminalize.
It didn't last. The strategy was litigated immediately, and federal courts (including the Third Circuit, sitting en banc, in N.C.A.A. v. Governor of New Jersey, 832 F.3d 389 (3d Cir. 2016)) ultimately held that this kind of selective "decriminalization aimed at casinos and racetracks" was itself an "authorization" forbidden by PASPA.
The state then took the case to the U.S. Supreme Court, and in Murphy v. NCAA, 138 S. Ct. 1461 (2018), the Court struck down PASPA's anti-authorization provisions as a violation of the anti-commandeering doctrine. New Jersey could now legalize sports betting outright. The Legislature did so within weeks, enacting P.L. 2018, c. 33 (codified at N.J.S.A. 5:12A-10 et seq.), and the Division of Gaming Enforcement issued comprehensive regulations.
That post-Murphy framework, not this 2014 directive, is the operative law on sports wagering in New Jersey.
What this means for you
If you operate a casino or racetrack in New Jersey today
Don't rely on this 2014 directive. Sports betting is now affirmatively licensed, taxed, and regulated under N.J.S.A. 5:12A-10 et seq., the Division of Gaming Enforcement's regulations at N.J.A.C. 13:69N, and the framework rebuilt after Murphy v. NCAA. Operate under your current sports wagering license and the rules of the Division of Gaming Enforcement.
If you're researching the legal history of sports betting in the United States
This document is a useful primary source. It captures:
- The state's litigation strategy after the 2013 Third Circuit ruling
- The "partial repeal" theory that was eventually litigated as the second Christie case
- The reasoning that ultimately led the U.S. Supreme Court to reach Murphy v. NCAA
Read it alongside:
- N.C.A.A. v. Governor of New Jersey, 730 F.3d 208 (3d Cir. 2013) ("Christie I")
- N.C.A.A. v. Governor of New Jersey, 832 F.3d 389 (3d Cir. 2016) ("Christie II", en banc)
- Murphy v. National Collegiate Athletic Association, 138 S. Ct. 1461 (2018)
If you're a gaming-law attorney or legal historian
Note the doctrinal framework:
- Reliance on N.J.S.A. 2C:2-4(c)(2), the criminal-defense provision permitting reliance on an "official interpretation" by the public officer charged with enforcement.
- Use of N.J.S.A. 1:1-10 (statutory severability) to preserve criminal exemptions while licensing provisions were enjoined.
- The AG's role under N.J.S.A. 52:17A-4(e) as sole legal advisor and N.J.S.A. 52:17B-97 et seq. as chief law enforcement officer.
The document's argumentative core, that "decriminalization is not authorization", was the key issue Christie II (en banc) rejected and Murphy sidestepped by striking down PASPA outright on anti-commandeering grounds.
If you're a journalist covering current sports betting issues
Don't cite this directive as current law. Use it for context on how New Jersey navigated the legal landscape between 2012 and 2018, but always pair it with notice that the document is moot and that current authority is the post-Murphy statutory framework.
Common questions
Q: Is this 2014 directive currently in effect?
A: No. It is formally moot. The Sports Wagering Act (N.J.S.A. 5:12A-1 to -6), which it interpreted, was repealed by S.B. 2460 on October 17, 2014. The cover of the document carries an official notation declaring it no longer effective.
Q: Is sports betting legal in New Jersey today?
A: Yes: fully and openly. After Murphy v. NCAA (2018) struck down PASPA, New Jersey enacted P.L. 2018, c. 33, codified at N.J.S.A. 5:12A-10 et seq., which licenses sports wagering at casinos and racetracks. The Division of Gaming Enforcement regulates the industry. Online and mobile sports betting are also licensed and operating.
Q: Why was the 2014 directive issued if it was almost immediately mooted?
A: It was an attempt to give legal cover to casinos and racetracks operating sports pools while litigation was ongoing. The Legislature decided to streamline the legal posture by repealing the Sports Wagering Act outright (in S.B. 2460), which made the AG's directive unnecessary. The repeal also became the litigation vehicle for Christie II and ultimately Murphy.
Q: What was PASPA and is it still good law?
A: The Professional and Amateur Sports Protection Act (28 U.S.C. § 3701 et seq.) was a 1992 federal law that prohibited most states from authorizing or licensing sports wagering. It exempted Nevada and (in limited form) Delaware, Montana, and Oregon. The U.S. Supreme Court struck down its anti-authorization provisions in Murphy v. NCAA in 2018, holding they violated the anti-commandeering doctrine of the Tenth Amendment.
Q: What's the anti-commandeering doctrine?
A: A constitutional rule, derived primarily from New York v. United States (505 U.S. 144 (1992)) and Printz v. United States (521 U.S. 898 (1997)), that the federal government cannot compel states to enact or enforce a federal regulatory program. Murphy extended it to hold that Congress cannot prohibit states from authorizing private conduct (like sports betting) either.
Q: Did the 2014 directive itself succeed legally?
A: Partly. It survived the immediate moot-by-repeal. Then the underlying "partial repeal" approach was rejected en banc by the Third Circuit in Christie II (2016), which held it was a forbidden "authorization." But the Supreme Court ultimately found that PASPA itself was unconstitutional in Murphy (2018), making the whole decriminalization-vs-authorization debate academic.
Q: Are college sports involving New Jersey teams still off-limits to NJ betting?
A: The 2011 NJ constitutional amendment carved out wagering on college sports events held in New Jersey or involving any New Jersey college team. That carve-out persists in current statute and regulation. So sportsbooks in New Jersey accept bets on most college sports: but not on Rutgers, Seton Hall, Princeton, or any college game played at a New Jersey venue.
Background and statutory framework
The 2014 directive sat at a complicated junction of constitutional referendum, state legislation, federal preemption, and litigation strategy:
2011: Constitutional amendment. New Jersey voters amended the State Constitution (Art. IV, § 7, ¶ 2(D)–(F)) to permit the Legislature to authorize sports wagering at casinos and racetracks (excluding college events held in NJ or involving NJ college teams).
2012: Sports Wagering Act. The Legislature enacted N.J.S.A. 5:12A-1 to -6, licensing and regulating sports wagering at casinos and racetracks. Implementing regulations were codified at N.J.A.C. 13:69N-1.1 et seq.
2012–2013: Christie I litigation. The major sports leagues and the NCAA sued. The federal district court enjoined the licensing scheme as preempted by PASPA.
September 2013: Third Circuit decision in Christie I. The Third Circuit upheld PASPA's constitutionality but observed that PASPA does not require states to maintain prohibitions: only forbids authorization. N.C.A.A. v. Governor, 730 F.3d 208 (3d Cir. 2013). Cert. denied, 573 U.S. 931 (2014).
September 2014: This directive. AG Hoffman issued the directive to capture the Christie I holding's distinction between maintaining prohibitions and authorization. The directive said: the criminal exemption in the Sports Wagering Act is severable from the licensing scheme; it survives; therefore casinos and racetracks may operate sports pools without licenses, and the State will not prosecute or sue them civilly.
October 17, 2014: S.B. 2460 repeals. The Legislature opted for a cleaner repeal-only strategy, repealing the Sports Wagering Act in its entirety. The directive was now moot, the statute it interpreted no longer existed: but the underlying legal theory (decriminalization, not authorization) became the basis for the second round of litigation.
2014–2016: Christie II litigation. The leagues sued again, this time challenging the repeal itself as a forbidden "authorization." The Third Circuit en banc agreed in 2016 (832 F.3d 389), holding that selective decriminalization aimed at casinos and racetracks was itself an "authorization" PASPA forbade.
May 14, 2018: Murphy v. NCAA. The U.S. Supreme Court struck down PASPA's anti-authorization provisions, holding they violated the anti-commandeering doctrine. Murphy v. NCAA, 138 S. Ct. 1461 (2018).
June 2018: Post-Murphy legalization. New Jersey enacted P.L. 2018, c. 33, codified at N.J.S.A. 5:12A-10 et seq., establishing comprehensive licensing of sports wagering. Sportsbooks at Monmouth Park and Borgata opened immediately. Online and mobile sports wagering followed within months.
The 2014 directive's place in this story is as a bridging document: a legal attempt to operationalize the Christie I "partial repeal" reading before the Legislature and the U.S. Supreme Court ultimately resolved the question on different grounds.
Citations and references
Current operative law (post-Murphy):
- N.J.S.A. 5:12A-10 et seq., Sports wagering licensing (2018)
- N.J.A.C. 13:69N: Division of Gaming Enforcement sports wagering regulations
- Murphy v. NCAA, 138 S. Ct. 1461 (2018), striking down PASPA
Historical authorities discussed in the directive:
- N.C.A.A. v. Governor of New Jersey ("Christie I"), 730 F.3d 208 (3d Cir. 2013)
- New York v. United States, 505 U.S. 144 (1992), anti-commandeering origin
Subsequent developments (post-directive, pre-Murphy):
- N.C.A.A. v. Governor of New Jersey ("Christie II"), 832 F.3d 389 (3d Cir. 2016) (en banc), rejected partial-repeal theory
Source
Original opinion text
Best-effort transcription from the PDF. The cover page bears a stamp declaring this directive moot and no longer effective.
State of New Jersey
CHRIS CHRISTIE, Governor
KIM GUADAGNO, Lieutenant Governor
JOHN J. HOFFMAN, Acting Attorney General
OFFICE OF THE ATTORNEY GENERAL
DEPARTMENT OF LAW AND PUBLIC SAFETY
PO Box 080
TRENTON, NJ 08625-0080
LAW ENFORCEMENT DIRECTIVE 2014-1
FORMAL OPINION 1-2014
MOOT NOTATION (per cover page): Because New Jersey Senate Bill 2460, signed into law by the Governor on October 17, 2014, repeals the Sports Wagering Act in its entirety, Law Enforcement Directive 2014-1 and Formal Opinion 1-2014 are now moot and no longer effective.
TO:
Elie Honig, Director, New Jersey Division of Criminal Justice
All County Prosecutors
All Municipal Prosecutors
Joseph R. Fuentes, Superintendent, New Jersey State Police
All County Sheriffs
All Police Chief Executives
David L. Rebuck, Director, New Jersey Division of Gaming Enforcement
Frank Zanzuccki, Executive Director, New Jersey Racing Commission
Jeffrey S. Jacobson, Director, New Jersey Division of Law
FROM: John J. Hoffman, Acting Attorney General
SUBJECT:
Law Enforcement Directive to Ensure Uniform Enforcement of the Sports Wagering Act's Exemption from Criminal Liability for the Operation of Sports Pools by Casinos and Racetracks
Formal Opinion Addressing the Effects of Law Enforcement Directive 2014-1 on the Sports Wagering Act's Exemption from Civil Liability for the Operation of Sports Pools by Casinos and Racetracks
DATE: September 8, 2014
LAW ENFORCEMENT DIRECTIVE 2014-1
On November 8, 2011, the citizens of New Jersey voted overwhelmingly to amend the New Jersey Constitution to permit the Legislature to repeal prohibitions against the operation of sports pools by casinos and racetracks. Thereafter, Governor Christie signed the Sports Wagering Act, N.J.S.A. 5:12A-1 to -6, to effectuate the will of the people expressed in the constitutional referendum. That statute decriminalized the operation of sports pools by casinos and racetracks, and implemented an extensive licensing and regulatory regime. Those regulations are codified in N.J.A.C. 13:69N-1.1 et seq.
Certain sports leagues claimed that the State's implementation of the Sports Wagering Act violated the federal Professional and Amateur Sports Protection Act ("PASPA"), 28 U.S.C. 3701 et seq. They brought suit in federal court to enjoin the implementation of the Sports Wagering Act. Governor Christie and the other defendants argued that PASPA violated the federal constitution and therefore could not be enforced. The federal district court ruled in favor of the plaintiff sports leagues and, in accordance with PASPA, enjoined the State from licensing or authorizing sports wagering.
Governor Christie and the other defendants appealed to the United States Court of Appeals for the Third Circuit. In September 2013, that court upheld the constitutionality of PASPA on the basis that it does not require States to maintain existing laws and thus does "not prohibit New Jersey from repealing its ban on sports wagering." N.C.A.A. v. Governor of the State of New Jersey, 730 F.3d 208, 232 (3d Cir. 2013), cert. denied, 573 U.S. ___ (2014) (hereinafter "N.C.A.A. v. Governor" or "Third Circuit opinion"). In holding that New Jersey "may repeal its sports wagering ban," id. at 233, the Third Circuit accepted the positions of the plaintiffs in the case, who had argued that the statute was constitutional because "nothing in [PASPA] requires New Jersey to maintain or enforce its sports wagering prohibitions," and, indeed, that New Jersey's "repeal of its state-law prohibition on the authorization of sports wagering" itself was "in compliance with PASPA."
The specific issues addressed in this Law Enforcement Directive are whether, in light of N.C.A.A. v. Governor, casinos and racetracks would be committing a criminal offense under New Jersey law if they were to operate sports pools as part of their business activities.
The New Jersey Code of Criminal Justice (Title 2C) provides that when determining whether their conduct constitutes a criminal offense, persons may rely on "an official interpretation of the public officer or body charged by law with responsibility for the interpretation, administration or enforcement of the law defining the offense." N.J.S.A. 2C:2-4(c)(2). Pursuant to the Criminal Justice Act of 1970, N.J.S.A. 52:17B-97 et seq., the Attorney General serves as the State's chief law enforcement officer, and is required to ensure the uniform and efficient enforcement of the criminal law and administration of criminal justice.
For the following reasons, sports pools operated by casinos or racetracks continue to be exempted from criminal liability under New Jersey law so long as no wagering occurs on a college sport or athletic event that takes place in New Jersey or in which any New Jersey college team participates regardless of where the event takes place. See N.J. Const., art. 4, sec. 7, par. 2(E) and (F). Accordingly, no law enforcement or prosecution agency or officer shall, pursuant to N.J.S.A. 2C:37-1 to -9, make an arrest, file a complaint against, or prosecute any person involved in the operation of a sports pool by a casino or racetrack to the extent that such activity takes place consistent with this Law Enforcement Directive.
Title 2C expressly provides that "no conduct constitutes an offense unless the offense is defined by this code or another statute of this State." N.J.S.A. 2C:1-5. Criminal statutes establish the scope of criminal liability not only by defining the material elements of offenses, see N.J.S.A. 2C:1-13(h), (i), but also by creating exemptions or affirmative defenses. In the specific context of gambling, chapter 37 of Title 2C establishes a comprehensive suite of criminal offenses that generally prohibit all persons from promoting gambling or engaging in gambling activity, subject to certain exceptions. See, e.g., N.J.S.A. 2C:37-1(c); N.J.S.A. 2C:37-9.
The Sports Wagering Act, however, provides that "[i]n addition to casino games permitted pursuant to the provisions of P.L. 1977, c. 110 (C.5:12-1 et seq.) [the Casino Control Act], a casino may operate a sports pool…." N.J.S.A. 5:12A-2(a). It further provides that, "[i]n addition to the conduct of pari-mutuel wagering on horse races under regulation by the racing commission pursuant to chapter 5 of Title 5 of the Revised Statutes, a racetrack may operate a sports pool…." Id. In this manner, the Sports Wagering Act repealed the prohibition against the operation of sports pools by casinos and racetracks, thus exempting those activities from criminal prosecution under New Jersey law.
The Third Circuit made clear that it did "not read PASPA to prohibit New Jersey from repealing its ban on sports wagering." 730 F.3d at 232. The Court reached this conclusion based on the arguments of the sports leagues, which stated that "[n]owhere in its unambiguous text does PASPA order states to keep laws on their books," or "to keep existing laws in effect." The United States Department of Justice, which had intervened in the case to defend PASPA's constitutionality, joined in the leagues' arguments, stating that "nothing in the statute requires New Jersey to maintain or enforce its sports wagering prohibitions," and that "PASPA also allows a state to … modify or repeal its prohibitions." Summarizing and accepting those arguments, the Third Circuit noted that "no one contends that PASPA requires the states to enact any laws, and we have held that it does not require states to maintain existing laws." 730 F.3d at 235. Indeed, the United States Constitution clearly forbids Congress from requiring a State to criminalize conduct under state law. As the Third Circuit observed, "Congress 'lacks the power directly to compel the States to require or prohibit' acts which Congress itself may require or prohibit." Id. at 227 (quoting New York v. United States, 505 U.S. 144, 166 (1992)).
That federal courts have found the licensing regime of the Sports Wagering Act to be preempted by PASPA does not invalidate the Sports Wagering Act's repeal of prohibitions against the operation of sports pools by casinos and racetracks. Recognizing that the Sports Wagering Act might be challenged under PASPA, the Legislature included a "severability clause" in its statute:
If any provision of this act, P.L. 2011, c. 231 (C.5:12A-1 et al.), or its application to any person or circumstance is held invalid, the invalidity shall not affect other provisions or applications of this act which can be given effect without the invalid provision or application, and to this end the provisions of this act are severable. [N.J.S.A. 5:12-2(g)]
The Legislature therefore intended for the provisions of the statute that are not directly invalidated to continue in force and effect. Here, as the Third Circuit made clear, and as the sports leagues and the Department of Justice conceded, PASPA does not prohibit States from repealing state-law prohibitions on sports wagering. The Sports Wagering Act's repeal of prohibitions against sports wagering in casinos and racetracks can be given effect without licensing or otherwise authorizing by law sports wagering, as prohibited by the Third Circuit's decision, and, accordingly, must be given effect. N.J.S.A. 1:1-10.
For the foregoing reasons, it is the view of the Attorney General that, at least, the provisions of the Sports Wagering Act exempting casinos and racetracks from criminal liability for operating a sports pool — specifically, N.J.S.A. 5:12A-2(a), which states that "a casino may operate a sports pool" and that "a racetrack may operate a sports pool," in accordance with how those terms are defined in N.J.S.A. 5:12A-1 — remain in force and effect, and all law enforcement and prosecuting agencies in carrying out their duties under the laws of the State of New Jersey shall abide by that exemption.
FORMAL OPINION 1-2014
The issue also has arisen regarding what effect the above Law Enforcement Directive has on the civil proscriptions applicable to sports wagering. See N.J.S.A. 2A:40-1 to -9. It is the Attorney General's statutory role to "[a]ct as the sole legal advisor" of, and to "interpret all statutes and legal documents" governing, state agencies. N.J.S.A. 52:17A-4(e).
As explained in the above Law Enforcement Directive, the Sports Wagering Act provides that a casino or racetrack "may operate a sports pool." Accordingly, sports pools operated by casinos and racetracks are exempted from criminal liability so long as no wagering occurs on a college sport or athletic event that takes place in New Jersey or in which any New Jersey college team participates regardless of where the event takes place. For the same reason, sports pools operated by casinos and racetracks are exempted from the civil proscriptions of Title 2A, chapter 40, so long as no wagering occurs on a college sport or athletic event that takes place in New Jersey or in which any New Jersey college team participates regardless of where the event takes place. Accordingly, I hereby instruct that the Department of Law and Public Safety shall not object to or seek civilly to enjoin a sports pool operated by a casino or racetrack to the extent that it is conducted in a manner consistent with this Formal Opinion.
John J. Hoffman
Acting Attorney General
Dated: September 8, 2014
cc:
Christopher S. Porrino, Chief Counsel to the Governor
Lee Vartan, Executive Assistant Attorney General
Deborah R. Edwards, Counsel to the Attorney General