![handle is hein.journals/flrf75 and id is 1 raw text is:
ANTICOMPETITIVE SPORTS BETTING LICENSES AND STATE
POWER: RESPONSE TO PROFESSOR DAY
Ryan M. Rodenberg*
In State Power and Anticompetitive Conduct, Professor Gregory Day
expertly explains why states face incentives to monopolize markets1
and comprehensively argues that state action immunity is misguided.2
While the Supreme Court has repeatedly exempted states from antitrust
review as a matter of federalism3 since its seminal Parker v. Brown4
ruling in 1943, Professor Day persuasively posits that [t]he ideal
proposal is to overrule Parker in its entirety.5 Professor Day unpacks his
argument by explaining how anticompetitive conduct arises when states
use licensing requirements-a modern way of insulating an incumbent's
power and excluding competition-in a variety of fields, including
cosmetology, taxidermy, interior design, beekeeping, and fortune
telling.6 In this Response, I extend Professor Day's analytical
framework to another timely example of anticompetitive licensing
stemming from state regulation: sports betting.7
Since the Supreme Court's 2018 decision in Murphy v. National
Collegiate Athletic Ass'n,' sports gambling has been legalized in two-
thirds of the states and the District of Columbia.9 The fervent pace
resulted from the Supreme Court's deference to states in the absence of
any concrete federal regulation.10 Writing for the majority in Murphy,
Justice Samuel Alito concluded, Congress can regulate sports gambling
* Professor, Florida State University
1. Gregory Day, State Power and Anticompetitive Conduct, 75 FLA. L. REV. 637, 643
(2023).
2. Id. at 642.
3. Id. at 640.
4. 317 U.S. 341 (1943).
5. Day, supra note 1, at 682.
6. Id. at 651 (citing Alexander Volokh, Antitrust Immunity, State Administrative Law, and
the Nature ofthe State, 52 ARIZ. ST. L.J. 191, 194 (2020)).
7. Indeed, I cited licensing concerns as a potential legal friction when asked to forecast the
future of the U.S. sports betting industry in 2023: The next five years will see various teams and
leagues consolidate power as 'gatekeepers' in the U.S. sports betting market. Whether through
licensing schemes, integrity-risky data mandates or equity stakes in sports betting companies,
such teams and leagues will build on the legal arguments made during the Supreme Court case
and strive to monetize sports wagering as much as possible. David Purdum, Five Years into
Sports Betting Legalization: Breaking Down the Numbers, ESPN (May 12, 2023, 7:00 AM),
https://www.espn.con/chalk/story/ /id/37605381/five-years-sports-betting-legalization-
breaking-numbers-supreme-court-us-stats# [https://perma.cc/2DAL-4G8A].
8. 138 S. Ct. 1461 (2018).
9. Purdum, supra note 7.
10. See Murphy, 138 S. Ct. at 1484-85.](ViewImageLocal?handle=hein.journals/flrf75&div=1&collection=&method=preview&ext=.png&size=3)
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