Legal Sports Betting and the Failure of Libertarianism
Not that long ago, betting on sports was illegal.
Well, not really.
More accurately, sports gambling existed in that strange legal netherworld where the US puts things like marijuana use and tax fraud. That is, it was kind of against the law, depending on how you did it and who you asked and where you happened to be standing. There was a federal law against betting on sports — or, to be more precise about it, there was a federal law that prohibited states from legalizing sports gambling. But the law had lots of exceptions. You could gamble in Nevada, obviously — that’s where Las Vegas is and where gambling had been legal since the 1930s; you could gamble on Indian reservations, which were not subject to federal laws; and you could gamble in various “riverboat casinos,” which a few states had made legal.
On a practical level, gambling was always a huge part of sports and sports fandom. There were certain rules in professional sports leagues and the NCAA to prevent athletes and coaches from gambling, so as to preserve the integrity of the game. But for fans, betting on games was just another way to stoke interest in sports. It was considered harmless fun. Longtime broadcaster Brent Musberger was famous for his thinly veiled references to betting lines and over/unders.
Overall, the whole situation was kind of stupid. Obviously nobody considered gambling to be that bad, because the efforts to prohibit it were so half-hearted. In fact, many states where gambling was technically “illegal” DID have casinos (not to mention state-sponsored lotteries) — the casinos just had to share a cut of their take with the government. And yet every once in a while someone would get in trouble for something silly, like participating in a March Madness pool or playing poker.
The explosion of Internet gambling made the whole thing especially ridiculous. Suddenly it was super easy to bet on sports or play poker or daily fantasy — but arbitrary things like where the website’s servers happened to be located or whether your state’s ambitious, press-hungry Attorney General decided something was a “game of chance” made a huge difference in terms of which websites you could use or which games you could actually play.
The whole situation was enough to make you sympathetic to libertarianism. After all, efforts to regulate online gambling seemed like exactly the kind of government overreach that libertarians are always going on about: It was both ineffective at actually stopping gambling overall, but ALSO incredibly annoying for people who DID want to place bets online. And if consenting adults wanted to bet on sports, then why should the government even care?
And then, in 2018, the Supreme Court decided the libertarians were right. In Murphy v. NCAA, the Court overturned the 1992 law that prevented states from legalizing sports betting. Writing for the majority, Justice Sam “I-definitely-didn’t-leak-the-Dobbs-decision–why-would-you-even-think-that??” Alito wrote:
“It is as if federal officers were installed in state legislative chambers and were armed with the authority to stop legislators from voting on any offending proposals. A more direct affront to state sovereignty is not easy to imagine.”
This is classic libertarian imagery, and for good measure the Court invoked the seldom cited 10th Amendment, which is only used by people who want to block “the worst excesses of the federal government” (by which they usually mean something like banning segregation or expanding healthcare coverage).
But you know what? Most people seemed to agree with the Court’s decision, and it was kind of hard to argue with them. All the Court was really saying was that the status quo was stupid: If the federal government wanted to ban or regulate gambling, then it was free to do that. But there was no real political will for that, and this weird, half-pregnant stasis where it was neither completely legal nor completely illegal was untenable. Almost immediately after the Court’s decision, most states rushed to legalize at least some form of gambling. By now, sports betting is legal in 38 states, plus DC.
And every sports fan knows the result. It is now simply impossible to watch any sporting event and not be bombarded with gambling ads. As I wrote a few years ago, the sports business is effectively synonymous with the gambling business. What used to be a distant but symbiotic relationship between pro sports and gambling has been replaced by a constant menu of enticements and possible bets you could be making during the games. Instead of wry allusions to gambling, Brent Musburger now works for a sports betting radio network owned by DraftKings. A few months ago, in a chilling omen of what is likely to come, some Barstool guy who was calling a college basketball game was openly goading players to take shots and commit fouls in the last minute of the game, so he could hit the Over.
The responsible way to criticize this is to worry about the rise of gambling addiction. And that is certainly a major issue — as sports betting has gotten easier, more people have done it, and more people doing it has lead to a rise in dangerous wagers. It is simply a fact of a public policy that when you legalize gambling, you see a rise in gambling addiction and gambling-induced bankruptcies. It is an issue crying out for regulation.
But I want to make another point: This sucks! It is so much more annoying to watch sports now that someone is constantly trying to trick me into betting on how many passing yards Michael Penix Jr. will have. Do I care about the threat of gambling addiction? Sure. But really, I just want to watch the games I love in peace.
Perhaps this is just an “old man yells at cloud” moment — it does kind of feel like complaints about there being too many commercials, or there being too much music at NBA games. But you know what? Those things are annoying, too. Change is not always good.
And this speaks to the failure of libertarianism. In college, a friend pointed out that “everyone has a libertarian phase” because there is something superficially appealing about just keeping the government out of everyone’s business and letting people do what they want. But as the rise of gambling shows, what people want is not determined in a vacuum, and in our economy different people have different amounts of power to determine how things are done. In this case, the fact that some people can get rich off of gambling is more important than any other consideration.
Do most sports fans want constant bombardment from gambling apps? Do they want all sports journalism and all sports broadcasting and even the leagues themselves to be in business with casinos and online sports books? Of course not. Even now, most people do not actually bet on sports, and most of the ones who do are doing it casually with friends. But because of the potential to make lots of money off people who DO bet, we have to watch the games become subsidiaries of DraftKings. Everyone is at the mercy of owners chasing every last dollar…
It is not enough that we simply regulate the economy to protect people from themselves — that’s important, sure, but it won’t actually solve the problem (plus, it kind of makes you sound like the fun police when you say it). We actually have to socialize ownership in our economy so we can appropriately weigh tradeoffs like this, instead of just letting the capitalist class claw every last dollar out of our pockets on a parlay. How much gambling is too much? How much addiction is worth letting people do what they want? How many FanDuel promo codes do I have to sit through? These are questions of public policy, and they ought to be determined by the public at large, not just private shareholders.