Murphy v. NCAA

You may have noticed that sports betting apps have taken over the world in just a few short years. Blame the Supreme Court. You can subscribe to 5-4 Premium on Patreon, Apple Podcasts, or Spotify. 5-4 is presented by Prologue Projects. This episode was produced by Dustin DeSoto. Leon Neyfakh and Andrew Parsons provide editorial support. Our researcher is Jonathan DeBruin, and our website was designed by Peter Murphy. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations. Follow the show at @fivefourpod on most platforms. On BlueSky, find Peter @notalawyer.bsky.social, Michael @fleerultra.bsky.social, and Rhiannon @aywarhiannon.bsky.social. Hosted on Acast. See acast.com/privacy https://acast.com/privacy for more information. Our Sponsors: * Check out Mint Mobile and use my code mintmobile.com/fivefour for a great deal: https://www.mintmobile.com * Check out Quince and use my code FIVEFOUR for a great deal: https://www.quince.com Advertising Inquiries: https://redcircle.com/brands

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

• 0:00Speaker 00

  In case number 16476, Murphy versus NCAA and the consolidated case, Justice Alito has the opinion of the court.

• 0:13Speaker 01

  Hey, everyone. This is Leon from Prologue Projects. On this episode of Five to Four, Peter, Rhiannon, and Michael are talking about Murphy v. NCAA. This is a case about sports gambling. In the early 90s, then-President George H.W. Bush signed a federal law making it illegal to gamble on sports in most states in the U.S.

• 0:32Speaker 02

  Participants in everything from fantasy football and March Madness pools to big-dollar wagering on games and matches are rejoicing tonight. The U.S. Supreme Court has ruled a federal law banning sports gambling in most states is illegal.

• 0:48Speaker 01

  But in 2018, the Supreme Court overturned that law, claiming that it impeded states' sovereignty and that states were free to establish their own sports gambling laws. As you'll hear, the justices did not think it all the way through. This is Five to Four, a podcast about how much the Supreme Court sucks.

• 1:08Peter Shamshiri?

  Welcome to Five to Four, where we dissect and analyze the Supreme Court cases that have caused our civil rights to collapse, like the inaugural stage beneath Donald Trump.

• 1:19Peter Shamshiri?

  I'm Peter. I'm here with Rhiannon.

• 1:21Speaker 04

  Hey. Happy New Year.

• 1:23Peter Shamshiri?

  And Michael.

• 1:24Michael Liroff?

  Hi, everybody. Happy New Year.

• 1:27Peter Shamshiri?

  Now, we are recording this before the inauguration, but I'm predicting that the stage will collapse due to poor planning.

• 1:34Michael Liroff?

  Peter's positing there is a God, and he has a sense, or she, he or she has a sense of humor.

• 1:41Speaker 04

  Or they.

• 1:41Peter Shamshiri?

  This is a very ambitious metaphor from me. Usually, I talk about things that have already happened, but this time, I'm willing something to existence, and if it does happen, they will talk about me like I'm a god.

• 1:56Peter Shamshiri?

  Now, do you folks have any predictions for the inauguration?

• 1:59Speaker 04

  It'll be stupid.

• 2:01Peter Shamshiri?

  Good one. That's a good one. Michael?

• 2:07Michael Liroff?

  No, no predictions. I don't really watch inaugurations. I haven't.

• 2:13Speaker 04

  Right. Why would you?

• 2:14Michael Liroff?

  I attended one once in 09.

• 2:18Peter Shamshiri?

  Yeah.

• 2:19Michael Liroff?

  And that was it.

• 2:19Peter Shamshiri?

  I was there in 09 as well, and it was cold.

• 2:22Michael Liroff?

  Yep.

• 2:23Peter Shamshiri?

  And boring.

• 2:23Michael Liroff?

  Hmm, exactly.

• 2:24Speaker 04

  Mm-hmm.

• 2:25Michael Liroff?

  And I was like, I don't even, never, ever need to see any of these again.

• 2:29Peter Shamshiri?

  Yeah.

• 2:29Michael Liroff?

  And I have not.

• 2:30Peter Shamshiri?

  I also predict Elon Musk, Donald Trump Jr. Half handshake, half hug, that gets caught on camera and really, really doesn't look normal. That's my other prediction.

• 2:44Michael Liroff?

  Oh, that's good. That's good.

• 2:45Speaker 04

  Yeah, some weird sitting, some weird standing, for sure. Yeah.

• 2:49Michael Liroff?

  There will be some viral clips of, yeah, weird poses, but also somebody, Musk or one of the, one of the Trump kids, looking like they're clearly on drugs. That'll be something.

• 3:00Speaker 04

  For sure.

• 3:01Peter Shamshiri?

  Sure. All right. This is the first fresh episode of 2025, in today's case, Murphy v NCAA. This is a case from 2018 about gambling, about sports betting. This is the case that legalized sports betting across the country in function. And this case is why every commercial that you see during a sports broadcast now is for some godforsaken gambling app.

• 3:28Speaker 04

  Yeah.

• 3:28Peter Shamshiri?

  And every sports commentator has to have a digression about the spread during every game. And it's why every straight man you know seems slightly poorer than they did in 2019, despite getting two promotions in the interim period.

• 3:44Speaker 04

  It's hurting. It's hurting. Yeah.

• 3:46Peter Shamshiri?

  And it's why every time I talk to my friends about sports, they're like, I put $5 on this ridiculous parlay that will never hit.

• 3:55Michael Liroff?

  Yes.

• 3:55Peter Shamshiri?

  And if it does hit, I get $45 or something.

• 3:59Michael Liroff?

  Yeah.

• 4:00Peter Shamshiri?

  And I'm, but for some reason, that has to be what we talk about now. No one enjoys sports.

• 4:05Michael Liroff?

  Do you get the screenshots? Do you just get the screenshots of the parlays? My friends send screenshots.

• 4:09Peter Shamshiri?

  When they hit, my friends will send me a screenshot and be like, should've bet more. It's like, you have a problem.

• 4:16Michael Liroff?

  I get a lot of screenshots when like the first three or four legs of the parlay have hit. And it's like, oh, now I really need, you know, fucking Puka Nakua first TD score in the Sunday night game or something. And it's like, okay, good luck, dude. I'm happy for you.

• 4:34Peter Shamshiri?

  All right. Back in 1992, Congress passed a law that prohibited states from authorizing or licensing sports betting. In the 2010s, New Jersey attempted to challenge the law and allow for sports betting in the state. The major sports leagues themselves sued to stop it, but the Supreme Court, in a seven to two decision, said that the federal government could not prohibit states from authorizing sports gambling because it impeded on state sovereignty, in a sense.

• 5:06Speaker 04

  Yeah. Yeah. Yeah. No, for sure. Yeah.

• 5:09Peter Shamshiri?

  States' rights, baby.

• 5:10Speaker 04

  For sure. You know, we're gonna talk about that legal reasoning and state sovereignty and like whether the federal law in question actually does impede on it, but I think this is one of those cases where like, our takeaways are not so much about like, straight up brutalizing, mangling the legal reasoning by the Supreme Court, more about like, the consequences that followed from a Supreme Court case. Okay, let's talk about sports betting. So like, six or seven years ago, it was illegal in most places in the United States to do sports betting, any kind of sports gambling on live sports. You could bet on sports, certainly in Las Vegas, the state of Nevada, a handful of other places, but otherwise, this kind of gambling was really mostly illegal.

• 5:53Speaker 04

  The professional sports leagues, the NFL, the MLB, the NBA, et cetera, they generally supported that status quo because there's this idea, which I think is inescapable and true, that allowing widespread sports betting, it threatens the integrity of the sport. It can corrupt the sport. And in fact, there are really a ton of famous examples in history. The so-called Black Sox scandal, in which eight players for the Chicago White Sox, this is professional baseball, were accused of intentionally losing the 1919 World Series in exchange for payment from a gambling syndicate. You know, Pete Rose, in the 80s, this is a MLB player, and after a more than 20-year-long

• 6:36Speaker 04

  career in baseball, playing and then as a manager, he was accused of betting on games and then subsequently permanently banned from the sport and the Baseball Hall of Fame. In the NCAA, this is the college sports league, of course. In 1994, Arizona State basketball team, there was a point shaving scandal where players were revealed to be getting paid to fix games to, you know, miss their shots. Tim Donahue, longtime NBA referee, was caught in a gambling scandal. You know, he was accused of making calls that would affect the point spread, like give a team a foul so they go to the free throw line, get a couple more points, that kind of thing.

• 7:18Speaker 04

  Now, there's also the social ills that come with gambling, not just corrupting our beloved and sacred sports. There are social ills and fear that sports gambling would become widespread led to Congress passing PASPA in 1992. PASPA is the Professional and Amateur Sports Protection Act. Now, PASPA banned states and individuals from operating sports gambling schemes. Basically, a state could not license a sports gambling scheme, a state couldn't operate or sponsor or promote one, and an individual couldn't do any of those things either, even if the state authorized individuals to do it.

• 8:00Speaker 04

  I could make a wager with Peter about the results of the Super Bowl, just him and I. This is about, you know, the creation of sports gambling businesses, casinos, schemes. So Nevada and a few other places could still have their sports gambling. And New Jersey, in the law, there was a special provision for New Jersey. New Jersey was allowed to create a sports gambling scheme within one year of the passage of PASPA. But at that time, in 1992 through 1993, New Jersey declined to do that. Now, if a state violated PASPA, PASPA allowed a sports organization, like the sports leagues or the Attorney General, to file a lawsuit to enjoin the state's actions, to file a

• 8:43Speaker 04

  lawsuit to get the state to not allow sports gambling scheme. So let's go back to New Jersey, though. PASPA gave New Jersey a year to create a sports gambling scheme if the state wanted to. New Jersey declined to do that. Fully, like, more than 20 years later, though, the New Jersey ledge passed a law that did authorize sports betting. And in that law, the state repealed previous laws on the books that prohibited sports gambling. And so, under PASPA, five professional sports leagues and the NCAA sued under that federal law to enjoin the New Jersey law. And New Jersey fought the lawsuit by arguing that PASPA is unconstitutional

• 9:27Speaker 04

  because it commandeers the state's lawmaking abilities. So that's how we get to the Supreme Court.

• 9:35Peter Shamshiri?

  Yeah, all right, let's talk about the law here. So, federalism. The Constitution grants the federal government certain powers, like the power to regulate commerce. And in all other areas, the power resides within the states. This is what we call federalism, the basic division of power between the federal government and the state governments. Within that system, there's a question of how much the federal government can do to coerce states into doing what it wants. A few decades ago, conservative legal scholars became very wary about this. They were concerned about the increasing power of the federal government. And in the 90s, the Supreme Court created what they call

• 10:19Peter Shamshiri?

  the anti-commandeering doctrine, which says that the federal government cannot commandeer state governments to do its bidding. This doctrine is not in the Constitution, but it's also not entirely made up. You can trace elements of it back to the Federalist Papers. There's a common sense aspect here because state sovereignty wouldn't mean much if the federal government could essentially force their hand every which way. But the actual meaning of this doctrine has never been super clear. Just to give some examples, the court has said that the federal government can't force state law enforcement to take certain actions because then you're commandeering state resources.

• 11:00Michael Liroff?

  You're turning them into federal law enforcement, essentially.

• 11:02Peter Shamshiri?

  Right, right, right.

• 11:03Speaker 04

  Yeah.

• 11:04Peter Shamshiri?

  But then, on the other hand, the federal government can attach strings to federal funding in many cases. So the reason that the drinking age is 21 across the country rather than 18, which is what it used to be almost everywhere, is because the government said that states need to make the age 21. If they want to receive federal highway funds. Yeah. So the government can compel states to act in certain ways, but not in others. Lots of gray areas. That's sort of the backdrop here.

• 11:35Speaker 04

  Yeah.

• 11:36Peter Shamshiri?

  Alito writes the majority in this case. He is joined by Roberts, Thomas, Gorsuch, Kennedy, and Kagan, as well as Breyer in part. He creates a new rule based in this anti- commandeering doctrine. He says that the federal government cannot issue commands to state legislatures. This law says that states cannot license or promote sports betting, which serves as a command to state legislatures. So it's not allowed. This is functionally an expansion of the anti-commandeering concept because it used to be that the federal government could not force the states to do something. And now the court is saying they can't tell the states not to do something either, right?

• 12:19Speaker 04

  Yeah.

• 12:21Peter Shamshiri?

  The principle is just that you can't tell state legislatures what they can and cannot do. We're going to get into the practical realities of this decision. But first, some legal nerd stuff. The idea that the federal government can't command a state to do something might seem like it has common sense appeal, but it sort of clashes with how our system works. There's an idea in the law called preemption. If the federal government passes a law, any state law that contradicts it will generally be null and void. It's preempted. So if the feds say, hey, the maximum allowable truck size is five tons, and the state law says the max is six tons, the state law is preempted. The max is five tons because the

• 13:06Peter Shamshiri?

  federal law is supreme. So one argument you could make in support of laws like this is, well, isn't this sort of the same thing, right? Yeah. The federal government is telling the state government what it can and cannot do. That's similar to preemption. But the majority says no. The majority says the government can regulate what people do, what individuals do, but it can't tell states what to do.

• 13:33Peter Shamshiri?

  But what that means in practice is that Congress can say, hey, we're banning sports betting. No one can bet sports. But they can't say, hey, state legislatures can't license sports betting.

• 13:45Michael Liroff?

  Right.

• 13:46Peter Shamshiri?

  Even though functionally, it's the same thing, right? Those are basically the same thing.

• 13:51Michael Liroff?

  Right.

• 13:51Peter Shamshiri?

  So the court is saying you could basically have two functionally identical laws. And one might be constitutional while the other isn't, just based on how they're worded. Whether you're telling people what to do, or whether you're telling the states what to do. I think for me, it's a little too cute. You know what I mean? A little too fucking cute, a little too formalistic. That feels like it can't really be the rule. That like, the federal government can in fact, tell state legislatures what to do. As long as they're just sort of doing it in a roundabout way by directing people, rather than the state legislature itself. I don't get it.

• 14:30Peter Shamshiri?

  It feels like one of those formalistic things that where it's like, you can see why conservatives like this, because it's a rule. It's like a very clean rule, but I don't think it actually makes much sense.

• 14:42Michael Liroff?

  Yeah, and that leads into, I think, Ginsburg's dissent really well. There's a dissent and two concurrences, and I think it's good to start with Ginsburg's dissent, actually. Because she makes this point, she says there are like these two sections of the law. And one says states can't, you know, do the authorizing and licensing of sports gambling schemes. The others says states can't sponsor, operate, advertise, or promote sports gambling schemes. And she's like, look, even if I assume that the authorizing and licensing stuff is commandeering and unconstitutional. This other section is just saying, states can't do what federal law prohibits.

• 15:27Michael Liroff?

  Which is like, if we say individuals can't sports gamble, and that's what this statute says. If we say individuals can't sponsor, operate, advertise, or promote sports gambling schemes, then states can't either. Like states can't fill the void of illegal activity. And this seems transparently true. And like a major problem for the majority, that they just don't really.

• 15:57Michael Liroff?

  Deal with, it's like, the rule makes sense if you don't think about it.

• 16:02Peter Shamshiri?

  Yeah.

• 16:03Michael Liroff?

  But if you think about it for even like 30 seconds, you're like, wait, maybe this doesn't really work that well, right?

• 16:10Peter Shamshiri?

  It feels like the majority wanted a clear rule rather than a good one, if that makes sense.

• 16:17Michael Liroff?

  Yeah.

• 16:19Michael Liroff?

  So, you know, I think that's like the best part of her dissent, and it's very short, which I think is a missed opportunity to talk about, you know, the well-known ills of gambling. The two concurrences, Breyer's is not very interesting. He's concurring in part and dissenting in part, saying sort of, I agree with the majority and with Ginsburg. Classic, like, saying nothing, doing nothing, Breyer. Thanks for nothing. Thomas has a concurrence that's very much about the concept of severability. And that is an idea in the law where if the court decides one fraction of a large law is unconstitutional,

• 17:02Michael Liroff?

  sometimes they can sever it and leave the rest of the law intact, and sometimes they don't.

• 17:09Peter Shamshiri?

  You can strike down part of the law and not all of it.

• 17:12Michael Liroff?

  Right.

• 17:12Peter Shamshiri?

  And sometimes you have to strike down all of it because that's the only thing that makes sense.

• 17:16Michael Liroff?

  Right. And sometimes there's provisions in the law that say this section is severable, or any section of this law is severable, and sometimes there aren't. And when there's no provision in the law, courts have to do an analysis. And, you know, the analysis looks different from, depending on the justice, but it's generally sort of like, can the law function without this section? Are there things that are unrelated to this section? Or would the enacting Congress want the law to stand without this section? Are the sorts of questions they ask. And Thomas...

• 17:50Michael Liroff?

  Has this concurrence talking about how he wants to rethink this. Wants to rethink this approach because he says it that at the founding, they didn't do this. They just said, well, the law doesn't apply to you and that's it.

• 18:03Peter Shamshiri?

  Yeah. Also, at the founding, every law was three sentences long. So, and this is irrelevant.

• 18:08Michael Liroff?

  Right. And at the founding, like any ruling they made had to be like transmitted by pony across the vast plains of the of the virgin continent and took months. And just things took worked differently back then as a result.

• 18:26Peter Shamshiri?

  Every law just said, no Italians heretofore in this nation.

• 18:33Michael Liroff?

  So I don't think this is like doctrinally interesting, like it cloaks itself as being sort of

• 18:41Michael Liroff?

  modest. What it's really doing, it could be something very radical because in the modern age, he says, we don't strike down laws, we just say they don't apply. But if the court says this law never applies to anyone, anywhere, under any circumstances, then the law is struck down. That's just a stupid rhetorical game. And if you can't sever stuff, that makes it much more likely that the court will be just striking down large portions of the federal law wholesale, for all intents and purposes, whatever language Thomas wants to use. But he's also doing something interesting here that is, I think, will be a theme I'll be touching on throughout this year, which is

• 19:21Michael Liroff?

  like mythmaking. And this is like sort of historical mythmaking about the founders, their desires and doing the practice of law, but not the substance of law. And I think this is what people try to get at when they say something is lawless, but they, you know, it's kind of not really well thought out. So I don't want to get too deep into it here until I have it fully thought out. But he's not really trying to.

• 19:55Michael Liroff?

  You know, engage in a conversation here. He's trying to build a mythos that will free society in a static picture that he likes. And all the tools in his tool belt work towards this end. And this is a very small example of that. And so we'll be returning to this. I'll be returning to this for sure, many times this year.

• 20:21Speaker 04

  Yeah, you know, on the point, especially around like what we're doing as modest, like.

• 20:25Michael Liroff?

  I'm just a humble Supreme Court Justice who wants to follow the founders.

• 20:29Speaker 04

  Yeah.

• 20:30Michael Liroff?

  Founders writings and the Federalist Papers.

• 20:33Speaker 04

  Yeah, and it's often a weapon that's wielded by the Supreme Court to make radical change where they don't want to talk about what the consequences of what they're doing will be. They're just saying like, oh, we're just like striking down this little part or we're being really narrow in our ruling. And it like creates this cover of supposed modesty to what they're doing. But, you know, like we said at the beginning of the episode, really this case isn't, you know, so much about the legal reasoning and, you know, like conservatives just outright like being absolutely psychotic about the law or the Constitution. It's what this case led to, which is widespread legalization of sports gambling across the

• 21:18Speaker 04

  country and what that has wrought.

• 21:21Peter Shamshiri?

  The idea of appealing to the founding in this particular case, it's just such fucking bullshit. If you showed Thomas Jefferson FanDuel, he would suicide bomb the Constitutional Convention.

• 21:39Peter Shamshiri?

  The idea that you can like glean the outcome of this case from what happened in the 1700s, it's, come on, come on.

• 21:48Speaker 04

  Yeah, it's ridiculous.

• 21:50Michael Liroff?

  I don't even think the sports that are being bet on had been invented at the founding.

• 21:55Speaker 04

  No, certainly not.

• 21:56Michael Liroff?

  Maybe baseball, maybe, I don't know.

• 21:59Speaker 04

  Yeah, no, certainly not.

• 22:00Peter Shamshiri?

  No, literally nothing. They, God knows what kind of frilly little sports they were playing back then.

• 22:07Speaker 04

  Yeah.

• 22:08Michael Liroff?

  Like the one with the ball on a string on a pole and you like slap it and it goes around in a circle and you keep slapping it.

• 22:18Speaker 04

  I think that's exactly right. I think Michael has said this really articulately in the past, like this is a modern problem that needs modern solutions. And so just thinking about how this modern problem was ushered in, the movement to legalize sports betting really gained momentum with the push to legalize daily fantasy sports. This is like in the early to mid 2010s. FanDuel and DraftKings moved from state to state lobbying state legislatures to allow fantasy sports betting. And then they moved on to attacking the prohibition that PAPSPA enacted, the prohibition on betting on live sports. And then sports leagues started to embrace it. And after this case, there have been massive lobbying efforts and all

• 23:02Speaker 04

  of these app companies, all of these sports betting companies, all of the money and corporate involvement in politics that has come from this case. I think there's like two categories of things that like I would identify as political or social ills that this case allowed. One is like a money in politics and a lobbying problem that's like demonstrated by what happened after this case. And then the other is like the social ills of gambling and what that does to families, community. So let's talk about sports betting and lobbying. So as of right now, sports betting is now legalized in at least 38 states and DC. In at least

• 23:43Speaker 04

  24 of those states, you can bet on your phone on sports. Now, Eric Lipton at the New York Times last year did some investigative reporting, observed lobbying efforts in states to get sports betting legalized. You know, he watched while state legislators like met with lobbyists at bars where lobbyists were providing their favorite cigars and fancy whiskeys and all these gifts that aren't gifts and they're not bribes so that sports betting would be legalized. This is extremely transactional relationships, not just getting sports gambling legalized in a state, but also all of the specifics of what that

• 24:25Speaker 04

  Law would entail, what would the lobbyists who represented sports betting companies like DraftKings and FanDuel, like what they would be getting out of the law being passed beyond just that people in the state could gamble on sports. So in Kansas, for example, Lipton reports on this, the lobbyists were able to get a provision in the law that legalized sports betting in Kansas. That provision allowed them to give out millions of dollars of free bets on their apps that they would not be taxed on. Another provision of the law is that 80% of the taxes that the state does make

• 25:07Speaker 04

  off of sports betting was going to help build a new sports stadium in Kansas, not go to like the general welfare fund that would benefit Kansas residents. 1.1 billion dollars were made in bets in Kansas between the passage of the law and Lipton's reporting, and only 2.7 million dollars is tax revenue for the state because the tax rate was so low. But with 80% going to the building of a stadium, that's like $500,000 out of 1.1 billion. Yeah. That actually goes to the general fund in Kansas that would, you know, actually benefit Kansans.

• 25:48Speaker 04

  And this is just one example. This is happening across the country. In 2024, the National Gaming Association estimated that $35 billion in bets were placed on NFL games alone. That's one league. $35 billion, that is nearly $3 billion a month. And there are many, many social ills and studies that show those social ills that have come from the legalization of sports gambling. One study showed that legal sports gambling depletes household savings. For every $1 spent on betting, households put $2 less into investment accounts, for example. For online sports gambling specifically,

• 26:33Speaker 04

  legalization increases the risk that a household goes bankrupt by 25 to 30%. And in general, increases debt delinquency, the ability of a family or an individual to pay off loans or pay down debt. Studies show modest decreases in credit scores that are caused by the legalization of sports betting, you know, general decreases in consumer health in general. And studies also show that those most hurt by sports gambling are the least well off. These problems concentrate among young men especially, who are living in lower income counties in these states. Something else really concerning has to do with domestic violence and intimate partner

• 27:18Speaker 04

  violence. There were previous studies before the legalization of sports gambling that showed that an NFL home team's upset loss caused a 10% increase in reported incidents of men being violent towards their partner. Now, in states where sports betting is legal, that effect is even bigger, maybe increases that by around 9%.

• 27:42Peter Shamshiri?

  It's sort of interesting how this might operate because previously, the research focused on like Reece saying, the home team losing. But if you can bet on any game, all of a sudden, it's not just about the home team. Any game can sort of create this risk of domestic violence taking upward, like really disturbing numbers. And by the way, some of the clearest that we've seen out of this research, like the uptick in bankruptcies was significant, and the uptick in domestic violence was significant. A lot of the other stuff, the credit score changes were kind of nominal, but bankruptcies and domestic violence are, you know, I don't want to get dramatic, but look like they're fucking skyrocketing when you look at this data.

• 28:27Speaker 04

  Yeah. Yeah, you are widely increasing the level of stress, or at least the potential of psychological stress across all sports, not just that like home team rivalry or whatever.

• 28:40Speaker 04

  This is to say nothing of gambling addiction, which is incredibly serious and affects millions of people and is now like ever more accessible to, you know, sort of like be engaged with regular gambling because of the legalization and because sports gambling is available to do on your phone, in your hand at any time. Some studies show that the legalization of sports gambling, it doesn't even shrink the illegal market. So it doesn't help decrease illegal sports betting by legalizing it. And back to this tax revenue point, studies also show that states aren't really benefiting

• 29:25Speaker 04

  in terms of making tax revenue off of the legalization of sports gambling. They make less than tax revenue that they make off of alcohol sales, tobacco sales, marijuana sales. States that have legalized sports betting, that is at least 38 plus DC, make half a billion dollars in tax revenue combined. All 38 states plus DC every quarter. So, you know, this is maybe $2 billion a year in tax revenue, but that is combined. If you think about the many, many, many billions of dollars actually being wagered.

• 30:08Michael Liroff?

  This really resonates with me because, you know, I had a family member who was addicted to gambling and like a serious addiction, lost her job for stealing, you know, tens of thousands of dollars from it, ended up bankrupting it, closing the company to feed a gambling habit. She also loved, and a lot of my most cherished memories are with her watching sports, watching South Florida sports, watching the Heat, the Dolphins and the Florida Panthers, the hockey team. And I'm thankful in a lot of ways, she's no longer with us, that she wasn't around to see this because.

• 30:53Michael Liroff?

  I don't know how she would have handled a world where her favorite thing is including constantly being bombarded with ads for gambling, which, you know, ruined her life in a lot of ways, inviting her, enticing her to get back into it, and the ease of having it available right there on her phone. This law did good things, like people's lives are ruined by this. And the court just sort of half-assed its way through a pretty short opinion, doing away with it, and opening this like legit Pandora's box of social

• 31:38Michael Liroff?

  ills.

• 31:39Peter Shamshiri?

  Yeah.

• 31:40Michael Liroff?

  It's just, it's difficult to even, reading this opinion just made me extremely upset in how cursory every opinion is. Nobody took this very seriously at all, I think, majority or dissent.

• 31:54Peter Shamshiri?

  Yeah. This feels a little bit like old school 5-4. Like, Congress passed like a relatively clear law with a very clear intent. And then 30 years later, Supreme Court trudges in being like, ooh, you didn't use the magic words.

• 32:11Michael Liroff?

  Right.

• 32:12Peter Shamshiri?

  Oh, and now sports betting is legal across the country. Oops, oops. Like, it's such bullshit. This is just such a quintessential, like, this can't be how law is done in our country. It's such fucking horseshit.

• 32:27Speaker 04

  And, you know, in the early or mid 90s, it was a good thing, I think, that there was political will to get a law like this passed. Now that the Supreme Court struck it down, Michael, I think you said this in prep, there's no political will to fix the problem that this has wrought. And it's just really sad. I just think it's like sad state of our politics and how the political institutions are dealing with one another.

• 32:54Peter Shamshiri?

  Right.

• 32:55Michael Liroff?

  Yeah, I mean, I think this story is a great illustration of like all these intersecting dysfunctions in our federal and state governments.

• 33:04Peter Shamshiri?

  Yeah.

• 33:05Michael Liroff?

  Right? Like you have congressional dysfunction that makes passing anything but these huge omnibus bills and budget bills impossible. And that leads to these like court dysfunction where they feel free to remake society as they see fit because there's no legislative check on them. And then you have like state dysfunctions where things like, you know, not enough local media, and that's a whole other discussion, and campaign finance laws, which are their own sort of dysfunction, thanks to the Supreme Court.

• 33:45Michael Liroff?

  You have lobbyists able to, you know, wine and dine legislators and buy them for unbelievably cheap. And, and so it's like this half baked political will. Like, it's been 30 years, so there's not like a big constituency for really caring about gambling at this point. People are complacent, but there is a small and well-funded constituency for legalizing it because they see an opportunity to make lots of money on the backs of people's misery. And the court is in position to say, we're not, we're not saying gambling has to be legal.

• 34:30Michael Liroff?

  We're just saying, oh, you didn't quite phrase this right. You didn't quite structure this right. And then tossing it into this dysfunctional mess. And what we're left with is what we have now, which is

• 34:44Peter Shamshiri?

  Right.

• 34:44Michael Liroff?

  truly hellish, truly.

• 34:47Peter Shamshiri?

  And another situation, it reminds me a little bit of like Citizens United where the court strips away. The protections from keeping all of this money flowing through our system. And then the money starts flowing and the court's like, well, you can pass another law. Exactly. But it's too late. The lobbyists have their claws in the politicians. It's too late. Now, we have companies that are running multi-billion dollar operations reliant on sports betting. I mean, it's too late, right? If Congress isn't going to ban FanDuel now, it takes a whole economy out. Like this classic sort of Supreme Court move. Unleash the money and then be like, well, oops. You know, I guess it's too late.

• 35:31Peter Shamshiri?

  I guess you guys don't want to fix it. Here's another thing I want to, it's sort of ancillary here, but it's not immediately obvious. But there are a bunch of federal laws that do what the Supreme Court is saying you can't do, which is commanding state legislatures. Right after this case came out, a professor at Georgetown, Brian Goll, I think it's pronounced, wrote about this. There are federal laws that limit the ability of states to impose various taxes. States are limited in the taxes that they can impose on Fannie and Freddie Mae, for example. This is all considered part of Congress's commerce power. Congress can regulate commerce. That means they can do things that prevent the states from impeding commerce. You learned about this in law school.

• 36:15Peter Shamshiri?

  When this case came out, some scholars were really concerned about what might happen to these laws. Right? And so far, we haven't really seen any significant challenges. I think because no one really thinks the Supreme Court Right. meant to intrude upon these laws, which I'm bringing up not because like I'm worried about these laws getting struck down necessarily, but because I think it goes to show that like the court just created a rule that lives in a fantasy world. Yeah. Right? It's a rule that doesn't account for how our country actually functions because the justices don't really know how it functions. And that should be the takeaway from this case. Like, the case sucks because it's a great example of the court living in a theoretical reality rather than an actual reality.

• 36:59Peter Shamshiri?

  They strike down a law based on a rule that they pulled out of thin air, completely ignoring the day-to-day function of our government. This fully formed government policy designed to limit gambling gets struck down. And then you get widespread gambling, which leads to all of the social ills that Congress was looking to prevent. And I want to be clear that like, our position is not that the federal government should be able to boss states and localities around. If the federal government could just tell states and cities what to do.

• 37:31Speaker 04

  Right.

• 37:31Peter Shamshiri?

  You wouldn't have sanctuary cities, for example. And there's about to be a big legal fight about that exact issue. So it's not that like, we have any particularly strong feelings about the anti-commandeering doctrine here. This case is just about a court that is veering out of control, like doctrinally sloppy and also too willing to step in and make policy wherever it sees fit. You know, that's what I take away from this case. And I guess the last thing we should talk about is how this has basically just ruined sports.

• 38:05Speaker 04

  It's awful.

• 38:06Peter Shamshiri?

  Yes.

• 38:06Speaker 04

  All of the ads.

• 38:07Michael Liroff?

  It's really bad.

• 38:08Speaker 04

  It's terrible.

• 38:09Peter Shamshiri?

  It sucks. We were talking about this. The sports betting apps saturating the entire sports experience feels like a microcosm of this bigger thing. It feels like nearly every product and service and experience is decaying a little bit, especially as companies get bigger and prioritize growth, which means they take existing services and they bleed them dry. More ads, more monetization, fucking Google feeds you five sponsored ads before you get your first search result. Everything feels like a worse version of what we had before. Part of this is probably in our heads, probably not entirely true, but sports feels like

• 38:53Peter Shamshiri?

  one area where it's objectively true. And so does ads. And this is really a tangent, but we were talking about this. Ads are getting bizarrely bad, and the sports betting app ads are so bad that I can't even comprehend it sometimes. Like, you'll see it and be like, what was that?

• 39:13Michael Liroff?

  Yeah.

• 39:14Peter Shamshiri?

  Like, it's almost like they're just flashing images and colors in front of your brain, trying to get you to remember what, like FanDuel or whatever. It feels insane.

• 39:24Speaker 04

  Yeah, no, it's pretty crazy. And, you know, there's also this, like, complicating rent. The whole thing for me, which is like going back to the problem of sports gambling on sport itself. And the fact that in many of these ads, athletes themselves are participating, right? Get paid by the sports gambling companies to participate in ads to promote sports gambling. And obviously, you know, there's like a ticky tack kind of narrow thing. Well, the athlete themselves, LeBron James is, you know, certainly prohibited from betting on NBA games. Right? Of course, but like we're, we're blurring lines here very obviously, right?

• 40:09Michael Liroff?

  Absolutely.

• 40:10Peter Shamshiri?

  Yeah.

• 40:11Michael Liroff?

  Absolutely. You know, this might be nostalgia. I might be wrong, but I feel like as a kid, there were like three types of ads, like a taxonomy, which was like, you know, polished sort of legitimate companies like Budweiser with like the Clyde Stales or something. And they'd have themes and they'd have jingles and they'd have, you know, running gags and characters, right? Or like the mayhem guy for the insurance company. And then there would be local ads, which is just like a dude in front of his store, talking to the camera. And then the third would be like scammy companies and they would feel very scammy.

• 40:52Michael Liroff?

  And they would be like, yeah, just like the American flag. And they would repeat their name like five or six times over and over and over. And try to just like drill it into your brain. And it feels like that third category of ads is becoming the only category of ads. And it makes me feel like our entire economy is becoming like a scam economy, you know, does that?

• 41:18Peter Shamshiri?

  Yeah, I know what you mean. It feels like, you know, people use the term in shitification, right? Which is this very specific term, I guess it's about, you know, platform decay. But it feels like it has a broader application in these contexts where like.

• 41:35Peter Shamshiri?

  Everything feels a little bit more like a scam than it was before. And it's like it bleeds into things like the ads where even the ads, they feel like half baked in a way that makes you feel like you're being scammed. I was telling you guys about, this isn't gambling related, but I said this is a tangent. The Snoop Dogg Mahomes ad is one of the weirdest ads I've ever seen.

• 41:59Michael Liroff?

  I just saw it after we talked about it. I was like, oh my God.

• 42:02Speaker 04

  It's terrible.

• 42:03Peter Shamshiri?

  It's like someone pitched the idea of, oh, let's have it be a thing where Mahomes announces that he's leaving and everyone's freaking out, but it turns out he was just leaving his cell phone provider to go to T-Mobile or whatever. Which, fine, that's a very basic hack commercial gag, but they don't actually do the gag. Instead, they have Snoop Dogg explain the gag. He's like, Mahomes said he was leaving. People was tripping. Turns out he just meant he was leaving his provider. So there's no, you skipped over the joke. It's just Snoop explaining the structure of the joke that you would have made.

• 42:38Michael Liroff?

  It's bizarre.

• 42:39Peter Shamshiri?

  It's the sign of a dying civilization. I don't know any other way to put it. Like, what's happening?

• 42:46Michael Liroff?

  There are two ads for me that are like that. One, we talked about this, is the beer ad with Stavros and Andrew Santino. Is that his name? These are two stand-up comedians. They're doing a beer ad. And it starts with on Santino and he's like, your team lost. And then like the camera pans over in a clear cut because they're clearly not even on the same set or recording at the same time. And they cut to Stavros looking up and he's like shaved his eyebrows or something. And I'm like, it's so fucking weird and stilted. It's not, you have two funny guys. It's not funny.

• 43:28Michael Liroff?

  I don't understand. I don't even know what beer it's for because I get so upset watching it that I like fucking blackout. Like I blackout. It's bizarre.

• 43:37Peter Shamshiri?

  There's something about this that like, you're on social media.

• 43:42Peter Shamshiri?

  And you're getting bombarded with absolute toxic nonsense. And then you're like, all right, well, let me take a break from that. Go to traditional media. And even that feels like a fever dream. It feels like this weird, out of body sort of experience where you're like, this isn't quite what a commercial is. This is what my feverish brain thinks a commercial should be.

• 44:04Michael Liroff?

  The fever dream, I was literally saving that phrase for my, the last ad, which is the Salesforce ad for its AI product agent force. Just saying that sentence makes me feel like I'm in a fever dream. But it's Matthew McConaughey, sitting at a table outside of a restaurant in the pouring rain, upset that he's sitting in the pouring rain, saying this sort of fiasco, you know, is what happens when you don't use AI. And they bring you food you don't like. And a waiter in a poncho drops off a shrimp cocktail for him. And he's like, looking at the shrimp cocktail like, oh, I fucking hate shrimp cocktail.

• 44:49Michael Liroff?

  What? What dining experience is this? This has never, ever happened in the history of dining. Has anybody who's been sat in the pouring rain and stayed there? And then received service by a waiter in a poncho, bringing them something they didn't order and don't want? What are you talking about? Like, this is not a problem that people have.

• 45:14Speaker 04

  And AI will solve this problem?

• 45:17Peter Shamshiri?

  That's what AI brings to you. I wonder whether they had AI write that commercial as proof of concept.

• 45:25Michael Liroff?

  It feels like it has to be. I don't get it. I don't get it. Like, it makes me feel like I'm going insane when I watch it. Like.

• 45:35Peter Shamshiri?

  Obviously, we're on a sort of tangent here. I feel like this is sort of evocative of the feeling that 2025

• 45:43Michael Liroff?

  Yes.

• 45:43Peter Shamshiri?

  is going to give us.

• 45:44Michael Liroff?

  It just feels like a bunch of stupid ghouls are at the helm of everything, of everything.

• 45:51Peter Shamshiri?

  Yeah, and that's almost what I feel like our job is, because I was like, well, what is our goal as a podcast under fascism? Now, one is to just talk about the court and the law in the way that we always have, and I think a way that has been proven largely correct.

• 46:08Michael Liroff?

  Right.

• 46:09Peter Shamshiri?

  But the other is like, the world around you is, in fact, a swirling nightmare. And I feel like it's sort of our job to be like that one foot on the ground that you have.

• 46:20Michael Liroff?

  Right.

• 46:20Peter Shamshiri?

  Where you will see something, like those commercials, like a Supreme Court decision, and you will feel insane. And maybe if we do our job, you will listen to us and feel a little bit less insane. That's what I, that's my, my resolution for the podcast for the coming year.

• 46:40Michael Liroff?

  That's a good goal. I like that. Yes.

• 46:46Peter Shamshiri?

  All right. Next week, TikTok v. Garland. It's the TikTok case, folks. The case about the TikTok ban that dropped a few days ago. Everyone wanted us to do an emergency episode on this one, but we decided against because the situation is evolving. It's a bit dynamic as we record this. So we thought we would let things play out for a few days and then give you the full scoop. It's going to be a good one.

• 47:15Michael Liroff?

  And before we say bye, our next Patreon app is going to be a mailbag app where we answer your questions. So if you're a Patreon member and you want to hear your question answered, shoot it to [email protected]. If you want to have your question answered and you're not a Patreon member, shoot us that question and then subscribe.

• 47:34Peter Shamshiri?

  Yep. Follow us on social media, at 54pod. Subscribe to our Patreon, patreon.com/54pod, all spelled out, for access to premium episodes, special events, all sorts of shit. We will see you next week.

• 47:48Speaker 04

  Bye.

• 47:49Michael Liroff?

  Bye.

• 48:00Michael Liroff?

  Five to Four is presented by Prolog Projects. This episode was produced by Dustin DeSoto. Leon Nafok and Andrew Parsons provide editorial support. Our website was designed by Peter Murphy. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations. If you're not a Patreon member, you're not hearing every episode. To get exclusive Patreon-only episodes, discounts on merch, access to our Slack community, and more, join at patreon.com/54pod.