Category Archives: U.S. Federal

Legal sports betting and Constitutional questions

Federal law prohibits betting on sports in all of the United States, with a few narrow exceptions. Be that as it may, several state governments now want to license brick-and-mortar venues to offer wagering on sports. Sooner or later, the controversy will have to be tried in federal court.

Last week I wrote an article for Global Betting & Gaming Consultants exploring the potential path to legalized sports betting in the United States. The article explains that ultimately federal courts must decide whether the Professional and Amateur Sports Protection Act (PASPA) is consistent with the U.S. Constitution.

A federal court action would focus on two distinct issues: 1) whether the Tenth Amendment to the Constitution reserves for each of the 50 states the right to provide their own laws for sports betting, and 2) whether the Interstate Commerce Clause gives power to the federal government to make laws for sports betting.

These issues will in any event take years to settle.

Please visit the website of Global Betting & Gaming Consultants to read the full article: New Jersey’s Rush for Sports Betting Must Blast Through Federal Courts.

Obama’s Online Poker Position: Let the States Decide for Themselves

The White House has issued a statement regarding its views about online poker. The statement was issued in an e-mail to individuals who participated in the “We the People” petition process by signing a petition calling for the legalization of online poker.

The response from the White House echoes the Memorandum Opinion issued by Obama’s Justice Department in December regarding the scope of the federal Wire Act. The Obama administration says each of the 50 states has the right to make  its own decisions:

“…Online gambling on sporting events or contests violates federal law. The legality of other forms of online gambling is dependent upon the law of the states where the bettor or gambling business is located. It is left to each state to determine whether it wishes to permit such activity between its residents and an online poker business authorized by that state to accept such wagers… (emphasis added).

The e-mail in its entirety is posted below:

-

(Sent Friday, May 18, 2012)

What We Have to Say About Online Poker

By Brian Deese, Deputy Director of the National Economic Council

Thank you for taking the time to participate in the “We the People” petition process. We launched this online tool as a way of hearing directly from you, and are pleased to see that it has been effective in soliciting your feedback. We understand your interest in the petition to support the legalization of online poker, and appreciate the opportunity to share President Obama’s concerns about this issue.

The Administration understands that many Americans engage in paid online poker games for entertainment purposes. Online gambling on sporting events or contests violates federal law. The legality of other forms of online gambling is dependent upon the law of the states where the bettor or gambling business is located. It is left to each state to determine whether it wishes to permit such activity between its residents and an online poker business authorized by that state to accept such wagers, but online gambling that is not authorized by state law may also violate federal statutes.

The rapid and anonymous nature of the internet distinguishes online games from onsite games, such as those in casinos, and creates distinct challenges. For example, there are many means of technologically circumventing restrictions on online gambling that can allow individuals from countries where gambling is illegal — or even minors — to play using real currency. Online games also have greater potential for fraud because gambling websites are much cheaper and easier to establish than on-site locations, and like telemarketing scams, can appear and disappear overnight. Finally, online gambling can be used in money laundering schemes because of the volume, speed, anonymity, and international reach made possible by internet transactions. The Administration will continue to examine this issue and is open to solutions that would help guard against the use of online gambling sites as tools for conducting illegal activities or preying on unsuspecting individuals to the extent that online gambling is permitted.

Thank you once again for signing the online petition. We appreciate hearing your opinions and look forward to hearing from you again soon.

Standards published for the control of problem gambling on the internet

 On April 23, the National Council on Problem Gambling published a set of standards it feels should be a part of all regulatory systems for internet gambling.

The National Council on Problem Gambling (NCPG) does not advocate that internet gambling should be prohibited. Instead, the organization argues that legalization of internet gambling should be accompanied by standards which mitigate the negative social effects of gambling.

“The most ethical and cost effective response to gambling addition issues raised by internet gambling is a comprehensive public health strategy that includes prevention, education, treatment, enforcement  and research services,” according to NCPG.

NCPG developed its standards after studying gambling regulatory codes from around the world and gathering empirical evidence and feedback from experts in the field. The organization also considered laws covering the online purchase of other age-controlled products such as alcohol and tobacco.

NCPG is an important political player because it is the largest organization that lobbies for programs and services to assist problem gamblers and their families. NCPG spokespersons are frequently invited to offer testimony to Congress and state legislatures.

NCPG’s “Internet Responsible Gambling Standards” are contained in a brief 7-page document (.pdf).

Below is an outline of the standards:

  • Policy
    • Policy commitment to responsible gambling
    • Strategy for responsible gambling
    • Support
  • Staff Training
    • Corporate policy
    • Training
  • Informed Decision Making
    • Information about gambling
    • Personalized information
    • Limit setting
    • Time out
  • Assisting players
    • Policies
    • Responding to information requests
  • Self-exclusion
    • Self-exclusion
    • Self-exclusion policies
    • Exclusion length
    • Communication with players
    • Access to help
    • Conditions of exclusions
    • Enforcement
    • Reinstatement
    • Renewal
  • Advertising and promotion
    • Advertising policy statement
  • Game and site Features
    • Passage of time
    • Display cash
    • Game features
    • New features
    • Registration
    • Multiple accounts
    • Free games
    • Encouragement to retreat
    • Underage gambling
    • Credit
  • Research
    • Transparency

What rights do tribes have in internet gambling?

“Even if there were no tribes in the United States, adopting appropriate legal rules for internet gambling would still be a difficult endeavor….”

I recently wrote an article for Tribal Government Gaming magazine in which I try to answer the question of what rights belong to Indian tribes with regard to participating in U.S. markets if a state or the federal government were to legalize internet gambling.

I conclude that each of the 50 states has the power to make its own decisions any way it reasonably believes appropriate. In some cases, a legislature might determine that allowing only one or two operators is the appropriate solution for managing policy concerns about the potential social costs of gambling. In some states, the preferred operators will not be a tribe. But in others, such as California and Connecticut, tribes can make a great case for being the state’s most qualified operators.

Furthermore, in the event that Congress were to enact a federal network for internet gambling, then tribal operators should probably be able to participate as freely as operators licensed by the states.

You can read the complete article online at Tribal Gaming Government magazine.

 

Catch up on Indian Gaming issues in time for the Indian Affairs Committee hearing on Feb 9

The U.S. Senate Committee on Indian Affairs will a hold an informational hearing on Feb. 9 to discuss internet gambling issues in light of the Justice Department’s new view of federal law.

The last hearing of the Indian Affairs Committee on Nov. 17th illuminated several key issues, and the upcoming hearing is an ideal forum for bringing them into clearer focus.

For example, there already exists a federal agency with experience regulating gambling. If the federal government is going to assume new duties related to the regulation of gambling on the internet, it might make most sense to delegate those duties to an agency that already has relevant experience. In the United States, that agency is the National Indian Gaming Commission.

Created pursuant to the Indian Gaming Regulatory Act (25 U.S.C. 2701), the National Indian Gaming Commission (NIGC) oversees aspects of the regulation of gambling on tribal territory in conjunction with tribal regulatory authorities who are local to the tribe.

General Counsel for NIGC, Larry S. Roberts, appeared as a witness at the Indian Affairs Committee’s last hearing, but at that time Roberts was generally reluctant to comment on any potential role for NIGC because no federal bill has ever proposed to give NIGC a role.  Nonetheless, Roberts’ testimony and the question and answer exchange which takes place afterward provides great perspective of the issues.

Overall, compared to the earlier hearings in the House Energy and Commerce Committee, the discussion at the Indian Affairs Committee’s last hearing was far more productive. This is partly because the Indian Affairs Committee proceeded on the assumption that regulation is probably necessary, so the committee was therefore able to spend more time contemplating the most effective means to achieve necessary goals. Meanwhile the House Energy and Commerce Committee has struggled to overcome the gateway question of whether internet gambling should even be regulated in the first place.

Video of the last Indian Gaming Committee hearing on Nov. 17th is available for streaming on the committee’s website.

Also available on the committee’s website is the testimony of all witnesses at the last hearing, including Larry S. Roberts, General Counsel of the National Indian Gaming Commission; Bruce “Two Dogs” Bozsum, Chairman of the Mohegan Tribe (located within Connecticut); Glen Gobin, Chairman of Tulalip Tribes (located within Washington); Ernie Stevens, Chairman of the National Indian Gaming Association; Alfonse D’Amato, Chairman of the Poker Players Alliance; Penny Coleman, Principal of Coleman Indian Law (firm based in Washington, D.C.); and Grant W. Eve, whose company provides consulting and certified public accounting firms for more than 100 tribal entities.

 

DOJ gets out of the way (Memorandum Opinion on Internet Gambling)

A small fire was started in December when US Attorney General Eric Holder, through his Legislative Affairs Office, sent a letter to Senators Jon Kyl and Harry Reid. The subject of the letter was a Memorandum Opinion drafted by Holder’s Legal Counsel Office, addressing two very specific questions of federal law related to internet gambling.

The Memorandum Opinion is significant because it adopts a shocking new interpretation of federal law with regard to unsettled questions surrounding internet gambling. It used to be the official position of the US Justice Department that all gambling on the internet violates federal law. The former position inferred a very broad scope from the language of the Wire Act of 1961.

The new position adopted in the Memorandum Opinion takes a more literal reading of the Wire Act, limiting its terms to interstate wagering on sports, which was likelier the intent of Congress in 1961.

Presumably Holder’s Office of Legal Affairs sent the Memorandum to Senators Kyl and Reid because the the Senators had earlier in 2011 published a letter of their own in which they criticized Holder’s Justice Department for a lack of consistency and aggression in enforcing internet gambling law. The Senators requested that Holder either confirm the Justice Department’s traditional approach to the Wire Act or else explain any new approach to Congress. In that regard, the Memorandum Opinion speaks for itself.

The broad significance of the Memorandum Opinion is that if the Wire Act applies only to sports wagering, then state legislatures are free to license and regulate poker, casino games, and lotteries on the internet. The effect in media and government has been profound, and there are many indications that policymakers in the state and federal governments are having serious discussions about the prospects of legalization.

For an in-depth exploration of the Memorandum Opinion, please see an article I wrote for Global Betting & Gaming Consultants of the UK: US Government Moves out of the States’ Way.

See also: Memorandum Opinion of the Attorney General’s Office of Legal Counsel: Whether Proposals by Illinois and New York to Use  the Internet and Out-of-State Transaction Processors to Sell Lottery Tickets to In-State Adults Violate the Wire Act

See also: Letter from Attorney General’s Office of Legislative Affairs to Senators Jon Kyl and Harry Reid (please note, this is a large file– 4.3 Mb)

 

Markets will be isolated within state borders for several years

With a presidential election year looming, there is little reason to expect this bitterly partisan Congress to enact a good internet gambling law. But Nevada is proceeding with its intrastate poker regulations nonetheless, and California’s legislature seems poised to enact an intrastate law of its own.

The inevitable result is that US markets will be segregated for the first several years. A Nevada license will be good in Nevada only, and a California license will be good in California only.

Incidentally, Nevada and its population of 2.7 million (0.86% of the US) is much less appetizing than California and its population of 37.25 million (11.91% of the US).

I recently wrote a chapter for Global Betting & Gaming Consultants’ Interactive Gaming Report  which provides an overview of the policy discussion in America, including the anticipated roles of the state and federal governments, as well as the shape of regulations in states that are likely to be first movers. The latest edition also examines the potential strength of several strategic alliances that have been formed to compete in American markets, including MGM and Boyd’s technology agreements with Bwin.Party, Caesar’s long-term agreement with 888 Holdings’ Dragonfish, and the Fertitta brothers’ purchase of Cyberarts.

To read an article I wrote promoting the report, please see: US E-gaming Markets Will Be Segregated At First.

 

Presidential hopeful Gary Johnson supports internet poker

Prospective US presidential candidate Gary Johnson says “Online gambling should be legal for adults.”

And it is easy to believe the former governor of New Mexico (1995-2003) would work toward legalization if elected. Johnson has a reputation for being a champion of libertarian principles, and he is a vocal advocate of decriminalizing marijuana.

“Live Free” is Johnson’s campaign slogan, and he has devoted a page of his website to obtaining donations from voters who support the freedom to wager on the internet. As for general internet and technology issues, Johnson’s website states that “The federal government should not restrict commerce that doesn’t hurt anyone.”

Johnson’s chances of obtaining the presidency are slim though. In fact, Johnson himself is so certain he will not win the Republication nomination that he has begun to consider running with the Libertarian Party (See: Huffington Post: Gary Johnson Considering 2012 Election Bid as Libertarian Candidate).

Ladbrokes lists Johnson’s odds of being elected president as 200 to 1, behind even Rick Santorum (100 to 1) and Hillary Clinton (40 to 1). Additionally, Ladbrokes lists Barack Obama at 5/6, Mitt Romney at 5/2, Newt Gingrich at 9/2, Rick Perry at 25/1, Ron Paul at 25/1, Jon Huntsman at 40/1, Herman Cain at 50/1, Michele Bachmann at 66/1, Buddy Roemer at 250/1, and Fred Karger at 500/1.

But we must point out that internet gambling is not really an executive branch issue. Certainly it is good to have a president that advocates good internet gambling laws, but ultimately responsibility for enacting good laws belongs to Congress.

Rep. Barney Frank and Sen. Jon Kyl retiring after 2012

US Congress will lose two of its most informed Members on internet gambling policy after 2012 in Representative Barney Frank and Senator Jon Kyl.

In recent years Rep. Frank has been one of the most fervent supporters of federal legislation to license and regulate internet gambling, and prior to enactment of the Unlawful Internet Gambling Enforcement Act (UIGEA) in 2006 he had been one of the most vocal opponents of legislation to prohibit internet gambling. Those who have worked and those who will continue to work toward enabling legislation are indebted to Rep. Frank for what he has accomplished so far. As a longstanding member of the House Financial Services Committee, Frank for many years has argued against the curtailing of Americans’ freedom to engage in internet gambling and other harmless adult activities. As chair of the committee in the last Congress, Rep. Frank obtained a favorable vote on a bill that would enable internet gambling, but ultimately the bill was never taken up on the floor of the House. Rep. Frank again sponsors a similar bill this Congress, but he no longer controls the Financial Services Committee agenda, having been unseated as chairman when the Republicans took control of the House after the 2010 elections. Rep. Frank continues to be influential, nonetheless. Earlier this month he appeared as a panel member at a hearing held by an Energy and Commerce subcommittee to discuss internet gambling issues. Furthermore, Rep. Joe Barton declares that his H.R. 2366 builds upon the work that Rep. Frank accomplished in the last Congress.

But even though Rep. Frank has always been a champion of personal freedoms, his passion for gambling is clearly lacking. Agreeing in principal that internet gambling should be regulated is easy for Rep. Frank, but it is evident that other issues sit closer to his heart. It is difficult to believe Rep. Frank would care to get bogged down in figuring the complicated details of an effective interstate regulatory system for internet gambling. So while Rep. Frank has done well to keep internet gambling issues in the spotlight, at this point his retirement will not harm progress. His intellectual rigor and straightforward nature will be greatly missed, but momentum will carry on without him.

As for his plans after politics: “My intention would be to do some combination of writing, teaching and lecturing,” said Frank. For more information, please see the following article in The Hill: Frank retires, blames redistricting.

In all likelihood, the more significant event is the retirement of Senator Jon Kyl, a legislator who may be equally as informed as Rep. Frank on internet gambling issues. Today the veteran Senator is the Republicans’ Whip in the Senate, and recently he was a member of the Joint Select Committee on Deficit Reduction. Prior to UIGEA, Sen. Kyl had been one of the most vocal advocates of prohibiting internet gambling. Recently he joined Senator Harry Reid of Nevada in writing a letter to criticize the U.S. Justice Department’s lack of consistency and aggression in enforcing internet gambling laws.

Sen. Kyl’s opposition to internet gambling always seemed to be grounded in notions of morality, but he has hardly spoken of internet gambling since UIGEA’s enactment in 2006. If there was ever any reason to think Sen. Kyl could have a change of heart, it would be grounded in hopes that his experience on the Senate’s Finance and Judicial Committees had taught him to be sympathetic to policies that preserve states’ rights and divert taxable revenues away from offshore black markets and into the purses of legitimate state regulated operators.

As testaments to Sen. Kyl’s career in the Senate, he served as chair of the Republican Policy Committee from 2003 to 2007 and chair of the Republican Conference in 2007.

Upon announcing retirement from the Senate in 2007, Jon Kyl said he would love to consider becoming a vice presidential candidate in 2012. (cough cough… Newt Gingrich… cough cough). Please see the following articles in The Hill: Kyl openly courts 2012 vice presidential nomination and in Politico: Sen Jon Kyl announces his retirement from Senate.

Subcommittee Hearing in US House – Internet Gaming: Regulating in an Online World (Highlights)

The US House Subcommittee on Commerce, Manufacturing and Trade held its second informational hearing for internet gambling issues on November 18. The hearing dealt generally with the threshold question of whether the federal government should regulate gambling on the internet. Questions about the mechanics of a federal regulatory system were given only cursory explanation. The comparative strengths and weaknesses of H.R. 2366 and H.R. 1174 were also given only cursory explanation, but it is beginning to appear that H.R. 2366 is the only bill that will move.

Video replay of the entire 2-hour hearing is available on the House Energy and Commerce Committee’s Youtube channel.

Highlights are found at the following minute marks:

2:35  Rep. Bono Mack, subcommittee chair, gives her opening remarks.

8:00 Rep. Butterfield, ranking member of the subcommittee, gives his opening remarks.

12:43 Rep. Barton, chair emeritus of the Commerce and Energy Committee and chief sponsor of H.R. 2366, reads his opening remarks.

“The bill that I have introduced builds on the work that Mr. Frank and Mr. Campbell have already done.”

“I want to point out that the bill that we’re hoping to markup in this subcommittee deals only with internet poker. It does not deal with generic gaming or gambling. It is just internet poker, and as everyone knows, poker is a game of skill.”

18:15 Rep. Frank, chief sponsor of H.R. 1174 gives his opening remarks.

“Once we decide to do this, there are specific legislative details—and I think in a bipartisan way we can work them out. I will say Mr. Barton, Mr. Campbell, and I have already had some meetings, and we think it’s possible we can come to agreement on a lot of these specifics.”

“I hope this committee will go ahead with the basic principle, and then I look forward to our working on the specifics.”

24:34 Rep. Wolf read his opening remarks.

30:17 Rep. Campbell, sponsor of H.R. 1174 gives his opening remarks.

35:49 Rep. Barton, recognized for five minutes.

“Mr. Wolf, in your comments you repeatedly say “gambling.” You never once said “poker.” I mean, you do recognize that poker is a game of skill I presume?”

Rep. Wolf’s response (37:02): “I’m not here to tell you that internet poker is wrong. That’s not my ability. What I’m here to say is that if you put internet gambling in college dorms, people will literally in a few short minutes be bankrupt and broken… I think internet gambling will bring about suicide and problems.”

39:53 Rep. Butterfield recognized for five minutes.

To Rep Frank: “Please discuss the broader scope of your bill and why you think allowing bets and wagers on activities other than poker is the preferred approach.”

Rep. Frank‘s response “I don’t think we should ban poker or anything else that’s voluntary and doesn’t hurt anybody else, including gambling. Now, [H.R. 1174] does have a prohibition on sports betting; frankly that is a practical fact. I was pushing this bill in the committee I chaired and we couldn’t get it through over the objections of mostly the National Football League. And I will report to you that the National Football League believes that if we were to allow internet gambling, people might start betting on football games… At any rate I accepted that reality. But yes, beyond that, our bill does say ‘adults should be able to do on the internet what they prefer to do,’ and I don’t see any reason for banning gambling. There is a narrower issue on poker, but I’m for getting as much freedom as I can for people as long as they’re not hurting others. If all we could get would be poker I would be all for it. I am for the broader issue because I do not think that we should be restricting people’s freedom to do other things.

48:17 Mark Lipparelli, Chairman of Nevada Gaming Control Board, gives his opening statement.

53:50 Charles McIntyre, Executive Director of New Hampshire Lottery Commission, gives his opening statement.

58:42 Frank J. Fahrenkopf, Jr., President and CEO of American Gaming Association, gives his opening statement.

“We support federal legislation that will allow states and other appropriate authorities to license and regulate online poker, while also insuring that each state, such as New Hampshire, has the right to determine whether such activity should be permissible by the residents of their state.

We believe the best approach to making that happen is to modernize and strengthen the Wire Act of 1961 with conforming amendments to the Unlawful Internet Gambling Enforcement Act to unambiguously outlaw and hopefully eliminate illegal internet gambling.

The AGA asks that any gaming legislative proposal establish federal guidelines so there are consistent regulations for online poker in all jurisdiction that choose to have it.

1:04:22 Dr. Rachel A. Volberg, Senior Research Scientist of NORC at the University of Chicago, gives her opening statement.

1:24:30 Rep. Barton asks Liparelli: “Would online poker hurt or help brick and mortar casinos?”

 Liparelli’s response: “I think it’s been our experience that if there is an impact it’s already reflected in operations. Clearly there’s a lot of online gaming happening now. It’s exploded in the last seven years. So if there has been a direct impact, it’s probably already being felt. I think the industry participants that we talk to frequently see an opportunity there, but they see it as a compliment, rather than something that would impact their businesses directly.