Discussion of last Florida Legislative Session and prediction for next Session; Geller speaks at NCLGS Conference in Minneapolis on Sports Gaming
I haven’t posted for a while because the Legislature was in Committee Meetings or Session, and I didn’t want to write anything that could conflict with the positions of any clients or potential clients. I’ve still been active, and I’ll bring you up to date now.
The Florida Legislature last year tried to pass comprehensive gambling legislation, with the emphasis on Sports Betting. Senate President Bill Galvano was once again the main driver of gambling legislation, based on his outstanding knowledge in this area. Remember that Galvano is a former President of the National Council of Legislators from Gaming States (NCLGS), an organization where I also served as President. Galvano prepared the legislation, and then largely turned it over to one of his closest confidants, Senator Wilton Simpson, who is scheduled to succeed Galvano as Senate President. President Galvano consulted with me on his proposed Legislation, and told several reporters and editors that I was his chief advisor on this Legislation.
The passage of comprehensive gambling legislation is always difficult, and this year was no exception. There were too many competing interests (as usual), and, as I predicted, it’s been made more complicated by the passage of the Constitutional Amendment last November (Amendment Three, Voter Control of Gambling). It’s still not clear what’s the actual effect of Amendment Three . The Seminole Tribe has suspended their payments to the State of Florida while indicating a willingness to continue talking. It’s still unclear if the Florida Legislature will sue the Governor based on the last Governor’s entering into a Compact with the Tribe without Legislative approval. Remember that the Florida Supreme Court ruled in Rubio vs. Crist that Indian Gaming Compacts could be negotiated by a Governor, but require ratification by the Legislature. Former Governor Scott entered into a compact with the Seminole Tribe through the process of resolving litigation between the State and the Tribe. This settlement has never been approved by the Legislature, and I believe that this renders any agreement at least subject to question. One of the biggest issues in the Litigation was over “designated player games”, and that remained among the most contentious issues in last year’s proposed Legislation.
This year the Session begins in January instead of March, with Committee meetings beginning in September. I’m sure that there will once again be gambling legislation, with Sports betting at the center of any such legislation. I last spoke on the topic of Sports Gambling Legislation in Minneapolis on July 12 at a NCLGS conference. I will publish my slightly edited remarks in the next day or two. I also would like to invite anyone with an interest in the Seminole Gambling Compact to view my remarks in Gaming Law Review, Economics, Regulation, Compliance and Policy Volume 22, Issue 8, October 2018, pages 469-484. https://www.liebertpub.com/toc/glr2/22/8 . This is the text of a panel discussion for a meeting of the American Bar Association Business Law Section.
The United States Supreme Court has issued its ruling in Christie v. NCAA, Case 16-476, stating that the Professional and Amateur Sports Protection Act (PASPA) is unconstitutional. Many people mistakenly think that this has legalized Sports Betting. I expect the ruling to be far less consequential than many think, especially in Florida.
No one knows how much is wagered on illegal Sports Betting in the US today because it’s, well, …illegal. I’ve seen estimates ranging from $107 billion to $300 billion. I think that today’s accurate number is probably somewhere between $150 billion and $200 billion, based on averaging the numbers I’ve seen, even though they’re only guesstimates. Some people assume that all of those wagers and more will immediately go into legal Sports Betting. I disagree.
People enjoy the traditional Office Pool on things like the NCAA Basketball tournament, and other events. Most of those people won’t stop the pools to go wager at a casino. Some people wager on credit with illegal bookies who have “creative” ways of collecting debts. Those people will still go to bookies because of the credit issue. States will tax sports betting (some will do so with heavy taxes), private operators will want to make a profit, and the Sports Leagues have already demanded a cut. I think that the Sports Leagues and states are expecting a larger cut than will prove to be feasible. With all of those takeouts, a bookie should be able to offer better odds.
The biggest issue about the size of the market is whether or not Sports Betting will be able to be offered online. Most boosters say yes, but I don’t know why. I believe that Sports Betting will, at least initially, be limited to bricks and mortar casinos.
Many people think that the famous December 23, 2011 “Christmas Surprise” ruling from the United Stated Department of Justice, Office of Legal Counsel, authorized internet gambling, including Sports Betting. Incorrect. The OLC ruling was much more limited. It was based on an acknowledged conflict between the prior interpretation of the Wire Act of 1961, and the 2006 Unlawful Internet Gambling Enforcement Act (UIGEA). The interpretation of the Wire Act had been that any type of Internet Gambling was illegal, but UIGEA specifically excluded Intrastate online gambling from penalties. OLC issued the Christmas Surprise ruling announcing that their longtime previous interpretation of the Wire Act was incorrect, and that the Wire Act should only apply to Sports Betting, and that only Sports Betting is illegal over the internet. Department of Justice Ruling December 2011 on Internet Gambling. Let me include quotes from that opinion:
“We conclude that interstate transmissions of wire communications that do not relate to a “sporting event or contest,” 18 U.S.C. § 1084(a), fall outside of the reach of the Wire Act. Because the proposed New York and Illinois lottery proposals do not involve wagering on sporting events or contests, the Wire Act does not, in our view, prohibit them.”
“The Criminal Division’s conclusion that the New York and Illinois lottery proposals may be unlawful rests on the premise that the Wire Act prohibits interstate wire transmissions of gambling-related communications that do not involve “any sporting event or contest.” See Crim. Mem. at 3; Crim. Supp. Mem. at 2. As noted above, both Illinois and New York dispute this premise, contending that the Wire Act prohibits only transmissions concerning sports-related wagering… We conclude that the Criminal Division’s premise is incorrect and that the Wire Act prohibits only the transmission of communications related to bets or wagers on sporting events or contests.”
This provision contains two broad clauses. The first bars anyone engaged in the business of betting or wagering from knowingly using a wire communication facility “for the transmission in interstate or foreign commerce of bets or wagers or information assisting in the placing of bets or wagers on any sporting event or contest.” Id. The second bars any such person from knowingly using a wire communication facility to transmit communications that entitle the recipient to “receive money or credit” either “as a result of bets or wagers” or “for information assisting in the placing of bets or wagers.” Id.5”
“Reading the entire subsection, including its second clause, as limited to sports-related betting also makes functional sense of the statute. Cf. Corley v. United States, 129 S. Ct. 1558, 1567 n.5 (2009) (construing the statute as a whole to avoid “the absurd results of a literal reading”). On this reading, all of subsection 1084(a)’s prohibitions serve the same end, forbidding wagering, information, and winnings transmissions of the same scope: No person may send a wire communication that places a bet on a sporting event or entitles the sender to receive money or credit as a result of a sports-related bet, and no person may send a wire communication that shares information assisting in the placing of a sports-related bet or entitles the sender to money or credit for sharing information that assisted in the placing of a sports-related bet.”
Based on the DOJ opinion, a consensus has emerged among serious attorneys that the Wire Act prohibits interstate internet gambling, but permits intra-state internet gambling if authorized by the legislature of that state. It is not clear if interstate compacts are permitted. Information on shared pari-mutuel pools through the internet, although apparently otherwise prohibited by the Wire Act, are expressly permitted through the later Interstate Horse Racing Act.
It currently appears to me that the clear wording of the Wire Act and the December 2011 DOJ memo both, at a minimum, continue to prohibit internet wagering on sports betting. It is not clear to me at this time if even sports betting at local brick and mortar casinos in states that authorize sports betting would be permitted if that wagering is part of interstate pools. Remember that the Wire Act prohibits not only wagering on sport events, but also prohibits “ information assisting in the placing of bets or wagers.”
Finally, the prospects are even worse in Florida. Florida is unlikely to have an opportunity to have a Special Session of the Legislature prior to the elections. There will be a referendum on the November ballot pertaining to voter control of gambling that may or may not impact sports betting. It is also certainly possible that competition between the different gambling industries in Florida, and opposition from the same forces that are pushing the anti-gambling referendum (such as Disney) may result in an inability of Florida to pass any sports betting legislation.
Will the Florida Legislature Call a Special Session in the near future to try and pass a gambling bill?
There has been discussion of whether we will have a Special Session in Tallahassee to discuss and hopefully pass comprehensive gambling legislation. I will discuss the possibility of whether a Special Session will be called, and, if so, whether or not it will result in actual legislation.
During the twenty years that I served in the Florida House and Senate, I learned the most basic rule of Special Sessions: “Don’t call one until you have an agreement on what the Legislature will pass.” I can say definitively as of today that the Legislature has not reached an agreement (yet), so as of today, they will not be calling a Special Session.
There are reasons why a Special Session may be called. There is a proposed amendment to the Florida Constitution known as Amendment Three which would take away from the Legislature most authority to amend gambling legislation and would instead require voter approval of any changes. This Legislation has been largely funded by the state Amusement Park industry (especially Disney), and has also received substantial support from the Seminole Indian Tribe. I will write more about Amendment Three in a future blog post, but it is sufficient for now to say that many in the Legislature think that a Special Session may be their last chance to make major revisions to the gambling laws of Florida.
Another reason to call a Special Session is more basic politics: Money. Fundraising. The Florida Legislature has finished its Regular Session and is not scheduled to meet again until after the November elections. The current Speaker of the House, Richard Corcoran, is widely believed to be running for Governor of Florida, although he hasn’t formally filed yet for that position. His best remaining chance of substantial fundraising is from the Gambling industry, if there are discussions of having a Special Session. The two negotiators from the House and Senate on gambling are Speaker-Designate Jose Oliva, and President-Designate Bill Galvano. Their duties as Speaker/President Designates are to raise money for their candidates in their respective Chambers. I regard all three people I’ve mentioned as honorable people, but the ability to raise some additional money for their caucuses should not be overlooked.
I have been told that the current President of the Florida Senate, Joe Negron, who is not running for anything and who has even discussed resigning his seat in the Senate when his term as President is up, has given a deadline to reach an agreement, as he doesn’t want this issue lingering. I was told that the original deadline expired last week, and that the Designates have a short time remaining to reach an agreement. As an aside, I must add an editorial comment that I think Joe Negron has been a great Senate President, and I personally would hate to see him resign and miss his last two years in office.
At the end of the day, I believe that there either will be no Special Session, or the Special Session will be unsuccessful. They’re simply too far apart. The Speaker, who certainly has been sounding like he’s running for Governor, needs to try and be the most conservative guy in the room to do well in a Republican primary. That means he needs to at least sound like he’s passed a conservative bill, reducing gambling. The Senate has been in favor of permitting slot machines in the approximately eight other counties where referendums have passed permitting slot machines, and the Senate has also been in favor of continuing “designated player games”, also known as “player-banked games”, as opposed to House-banked games. Those at least sound like expansions of gambling, and the proposed compromise of closing down some dormant pari-mutuel permits sounds like an insufficient reduction to be seen as a reduction in gambling, if the other items are added.
Many legislators don’t seem to understand the concept of exclusivity under the Indian Gambling Regulatory Act (IGRA). The Seminoles are currently paying the State of Florida nearly three hundred million dollars per year. In exchange for this, the Seminoles have been given statewide exclusivity on house-banked card games, and regional exclusivity on slot machines. Some legislators seem to think that slot machines can be expanded statewide without affecting the regional exclusivity, and thus the required payments under the existing Seminole Compact. I believe that they’re wrong.
When considering how far apart the House and Senate are, and when further adding in the affect that offering additional slot machines to pari-mutuels throughout the State would have on the Seminole Compact, I believe that there either will be no Special Session on Gambling, or, if there is, it will be unsuccessful.