Federal Law Against Sports Gambling

How DraftKings is preparing for legal sports betting

You can bet on it: Sports gambling is about to expand, big time, in the United States.

The DOJ reversed their 2011 DOJ Opinion Memo on the Wire Act in 2019 to reflect a prohibition against all US-based interstate gambling. Casino, lottery, poker, sports betting, and information companies were given a 90 day period to meet new compliance standards or face violating Federal Law. May 14, 2018 The federal law at issue in the case is the Professional and Amateur Sports Protection Act, which dates back to 1992. The law, known as PASPA, bans most states from (among other things) authorizing sports gambling; it carved out an exception that would have permitted New Jersey to set up a sports-betting scheme in the state’s casinos, as long.

Right now, the only place you can legally bet on sports is Nevada.

But on Monday, the Supreme Court struck down a federal law that prohibited legalized sports gambling anywhere but Nevada.

So what does this court decision mean, exactly?

Now that there is no longer a federal law against sports gambling, each state is free to pass laws that govern where people will be able to bet on sports and how.

'It'll be a state-by-state matter,' said Eugene Christiansen, an expert on casino gambling and consultant to the industry. 'I'm sure there will be a wide variety as to how fast or how slow the licensing proceeds.'

Are any other states close to approving sports betting?

Six states, including New Jersey which that brought the lawsuit to the Supreme Court, have already passed laws to allow casinos to take sports bets once the federal law was struck down, according to Geoff Freeman, CEO of the American Gaming Association. Those states are New Jersey, New York, West Virginia, Mississippi, Pennsylvania and Connecticut.

Another 12 states have introduced legal sports gambling legislation.

Even in states that have approved sports gambling, it'll take some time to complete the approval process, which will requirecompanies to be licensed in order to take sports bets.

'In the case of New Jersey I think we're talking weeks before we have sports betting in place,' he said. 'For most of the other states, I'd expect it start at the beginning of the football season this fall.'

How widespread will sports betting become?

There are a total of 40 states that have some kind of casino -- either state-regulated or tribal. Experts say they believe most if not all of those states will eventually allow sports gambling, simply because they won't want their own casinos to be at a competitive disadvantage with casinos just across state lines.

'It's the same reason we've seen the spread of casinos to so many states -- the states have been watching consumers going out of state to place bets,' said Josh Schiller, an attorney who has represented various gaming interests. 'People enjoy betting on sports.'

But experts say it could still take a few years before sports books are legal in states that haven't begun the process.

'Gaming law is something that typically takes time,' said Freeman. 'It's more complex than many people think.'

Will I be able to place a sports bet online in another state where it is legal?

Monday's decision only allows states to control gambling within their own borders. It does not open the door for interstate online gambling, or placing online bets with foreign sports books. That would require additional legislation or lawsuits.

How important is sports gambling for casinos?

Actually, it's not a very profitable business. For instance, gamblersin Nevada lost about $250 million betting legal on sports last year. But that equals only about 2% of the Nevada gaming industry's take overall.

Additionally, casinos have the potential to lose big on sports bets, unlike in house games. So sports betting can be the least profitable part of the casino, or even a money loser, according to experts.

Casinos fought for the approval to take sports bets because it's an important way to draw customers into the casinos. Otherwise, they would lose that business to illegal competitors, such as bookies and offshore gambling sites.

CNNMoney (New York) First published May 14, 2018: 4:00 PM ET

Federal Law Against Sports Gambling Rules

Gambling Law: An Overview

Gambling, though widespread in the United States, is subject to legislation at both the state and federal level that bans it from certain areas, limits the means and types of gambling, and otherwise regulates the activity.

Congress has used its power under the Commerce Clause to regulate interstate gambling, international gambling, and relations between the United States and Native American territories. For example, it has passed laws prohibiting the unauthorized transportation of lottery tickets between states, outlawing sports betting with certain exceptions, and regulating the extent to which gambling may exist on Native American land.

Each state determines what kind of gambling it allows within its borders, where the gambling can be located, and who may gamble. Each state has enacted different laws pertaining to these topics. The states also have differing legal gambling ages, with some states requiring the same minimum age for all types of gambling, while for others, it depends on the activity. For example, in New Jersey, an 18-year-old can buy a lottery ticket or bet on a horse race, but cannot enter a casino until age 21. Presumably, the age 21 restriction is due to the sale of alcohol in that location.

A standard strategy for avoiding laws that prohibit, constrain, or aggressively tax gambling is to locate the activity just outside the jurisdiction that enforces them, in a more 'gambling friendly' legal environment. Gambling establishments often exist near state borders and on ships that cruise outside territorial waters. Gambling activity has also exploded in recent years in Native American territory. Internet-based gambling takes this strategy and extends it to a new level of penetration, for it threatens to bring gambling directly into homes and businesses in localities where a physical gambling establishment could not conduct the same activity.

Internet Gambling

Federal Regulation

In the 1990s, when the World Wide Web was growing rapidly in popularity, online gambling appeared to represent an end-run around government control and prohibition. A site operator needed only to establish the business in a friendly offshore jurisdiction such as the Bahamas and begin taking bets. Anyone with access to a web browser could find the site and place wagers by credit card. Confronted with this blatant challenge to American policies, the Department of Justice and Congress explored the applicability of current law and the desirability of new regulation for online gambling.

In exploring whether an offshore Internet gambling business taking bets from Americans violated federal law, attention was focused on the Wire Act, 18 U.S.C. § 1084 (2000). The operator of a wagering business is at risk of being fined and imprisoned under the Wire Act if the operator knowingly uses a 'wire communication facility' to transmit information related to wagering on 'any sporting event or contest.' 18 U.S.C. § 1084(a). An exception exists if that act is legal in both the source and destination locations of the transmission. § 1084(b). The Wire Act’s definition of “wire communication facility” appears to embrace the nation's entire telecommunications infrastructure, and therefore probably applies to online gambling. See § 1081.

The Department of Justice maintains that, under the Wire Act, all Internet gambling by bettors in the United States is illegal. U.S. House of Representatives Committee on the Judiciary Hearing on Establishing Consistent Enforcement Policies in the Context of Online Wagers, 110th Cong., Nov. 14, 2007 (testimony of Catherine Hanaway, U.S. Attorney (E.D. Mo.), Dept. of Justice). The Fifth Circuit disagreed, ruling that the Wire Act applies only to sports betting, not other types of gambling. In re MasterCard Int’l Inc., 313 F.3d 257 (5th Cir. 2002).

In 2006, Congress passed the Unlawful Internet Gambling Enforcement Act, which made it illegal for wagering businesses to knowingly accept payment in connection with unlawful Internet gambling (though it does not itself make Internet gambling illegal). 109 Pub. L. 109-347, Title VIII (Oct. 13, 2006) (codified at 31 U.S.C. §§ 5301, 5361–67). It also authorizes the Federal Reserve System to create regulations that prohibit financial transaction providers (banks, credit card companies, etc.) from accepting those payments. See 31 U.S.C. § 5363(4). This Act, along with threats of prosecution under the Wire Act from the Department of Justice, has caused several Internet gambling businesses to withdraw from the U.S. market.

In response, House Representatives introduced multiple bills in 2007 to soften federal Internet gambling law. If passed, the Internet Gambling Regulation and Enforcement Act and the Internet Gambling Regulation and Tax Enforcement Act would license, regulate, and tax Internet gambling businesses rather than prohibit them from taking bets from the United States. Alternatively, the Skill Game Protection Act would clarify the Wire Act to exempt certain games such as poker and chess.

State Regulation

In addition to federal measures, some states have enacted legislation to prohibit some types of Internet gambling. In 2006, Washington State amended its Code to make knowingly transmitting or receiving gambling information over the Internet a felony. See Wash. Rev. Code § 9.46.240 (2006). Other states with similar prohibitions have made it a misdemeanor instead. See e.g., 720 ILCS 5/28-1 (2007).

States have not been particularly active in enforcing these laws, possibly due to a conflict with the dormant Commerce Clause doctrine. That doctrine theorizes that state law applying to commerce outside the state’s borders is unconstitutional because that power lies with federal, not state, government. In particular, federal preemption has obstructed states’ attempts to regulate gambling activity on Indian reservations within state borders. See Missouri ex rel. Nixon v. Coeur D’Alene Tribe, 164 F.3d 1102 (8th Cir. 1999). The federal Indian Gaming Regulatory Act, 25 U.S.C. § 29 (2000), governs gambling activity on Indian reservations, but the extent to which it and other federal gambling laws preempt state action in the Internet arena is uncertain.

menu of sources

Federal Material

U.S. Constitution and Federal Statutes

U.S. Code: Title 15, Chapter 24: Transportation of Gambling Devices
U.S. Code: Title 15, Chapter 57, Interstate Horseracing
U.S. Code: Title 18, Chapter 50: Gambling
U.S. Code: Title 18, Chapter 61: Lotteries
18 U.S.C. §1953 (Interstate Transportation of Wagering Paraphernalia Act)
18 U.S.C. §1955 (Illegal Gambling Business Act of 1970)
25 U.S.C. §§2701-2721 (Indian Gaming Regulatory Act)
U.S. Code: Title 28, Chapter 178: Professional and Amateur Sports Protection
Code of Federal Regulations: Title 25, Chapter 3: National Indian Gaming Commission, Department of the Interior
Proposed Internet Gambling Prohibition Act of 1997 (not passed)

Laws On Gambling

Federal Judicial Decisions

Greater New Orleans Broadcasting Association, Inc. v. United States, 527 U.S. 173 (1999)
Ratzlaf v. United States, 510 U.S. 135 (1994)
Chickasaw Nation v. United States, 534 U.S. 84 (1999)

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