Know When to Fold 'Em: The International Effects of Murphy v. NCAA and Why Antigua Holds the Cards

Abstract

“Americans have never been one mind about gambling.” However, the country’s past demonstrates a long history of discomfort with the concept of betting, especially within the domain of sports. Accordingly, the United States has integrated such concerns into the country’s legal scheme, both nationally and at the state level. Recently, however, the gambling landscape within the United States has evolved. With the advancement of gambling platforms, popularity of sports, ascension of fantasy leagues, and a recent ruling by the Supreme Court, sports gambling has largely become integrated within the country’s recreational culture. However, the effects of such a cultural lifestyle innovation are much broader in scope. The much discussed case of Murphy v. NCAA has obvious implications for domestic providers of sports gambling within states that legalize the activity. However, the international consequences of the decision have largely been ignored. In a 2003 World Trade Organization dispute, various international sovereigns complained that the lack of access to the United States’ gambling market constituted a stark violation of world trade obligations. The United States claimed morality as a defense and argued that the country’s general sentiment for gambling constituted a legitimate excuse for limiting market access. The United States won this battle, but lost the war on other grounds and has been subject to an annual judgment in favor of the claimants – an obligation with which the United State has refused to comply. Notwithstanding this aftermath, a changing of the tide within the country on the issue of gambling produces an important consideration. While a defense of public morality was a compelling argument at the time it was invoked, does this contention have any legitimacy in the United States of today? This Article argues that the United States should acknowledge its internal cultural evolution and accept its own transformation. On an international scale, this means taking action to prevent trade disputes from re-emerging. The country must look to its past without hesitation and employ the Gambler’s Fallacy. Nearly two decades have passed since the United States has justified its international policy on gambling by pointing to public morality. Yet, this span of time without international intervention should be scrutinized by the United States with the “maturity of chances” to become wary that tranquility is near its end. Accordingly, the Article takes a proactive approach to international relations and politics in the trading of gambling services.