Along with convincing some court that football is its private property, the NFL's next-best bet may be its insistence that the trademarks of the teams—for example, even the name Philadelphia Eagles, as two words or as either one—cannot be infringed upon for commercial reasons. Arguing for Delaware in court, James M. Mulligan Jr. said that it sounded to him as if the NFL was "in search of an enforceable right." Delaware Attorney General Richard R. Wier Jr. says, "Get a law book and point to the one we're violating."
A thornier question seems to be whether picking football winners involves chance or skill. Winning a lottery is almost entirely a matter of chance. As Oliver Wendell Holmes once wrote, "What a man does not know and cannot find out is chance as to him, and is recognized as chance by the law." But picking three, four or five football winners—not to mention 14 winners—would seem to require a measure of skill, and one of the NFL legal briefs says that "common sense dictates that the term lottery simply does not mean football gambling."
All this legalese doesn't bother Tony Angelo very much. Angelo is the proprietor of Angelo's Market in Wilmington and sells everything from cultivated snails to bikes; he also is one of 150 agents authorized to sell the football cards and cannot imagine why any right-thinking person would be opposed. "It's perfect," he says. "It's gonna create a lot of interest in football. It's gonna benefit our state. It's gonna benefit my store. And I can't see how it will hurt the NFL."
Understand that Tony already has sold four big winning lottery tickets in less than a year—one for $15,000 and three for $10,000. One of the $10,000 variety he sold to himself; another he sold to his brother. Such fortune does breed a certain enthusiasm for games of chance. Tony, like every other agent, gets 5% of ticket sales (he sells around $4,500 worth a week) and the equivalent of 2% of all winnings over $100. "I do good because people like to buy from a winner," says Tony. On the other hand, a Wilmington barber, through whose hands a few illegal football cards have been known to pass, thinks the legal lottery is "terrible." Like others, he thinks the scheme may fail because the state can't compete with bookies in the areas of credit and tax-free winnings. He also remembers that the first Delaware lottery failed in 1975 and had no big winners for a five-week period; it was revived under a new format six months later.
Martin Rudnitsky, who runs The Smoke Shop in Wilmington, sells lots of lottery tickets and is naturally excited over football cards. "At last," he chortles. "Now Delaware's gonna be first in something." Whether its first lasts is another question.