Unrestrained Promotion of Sports Betting Target of New Bill

It’s been six years since the U.S. Supreme Court ruled in Murphy v. NCAA that it was unconstitutional for Congress, through the Professional and Amateur Sports Betting Act of 1992 (PASPA), to compel states to deny sports betting when there was no accompanying federal standard. 

The opportunity remains for Congress to reassert its authority and adopt a federal standard. A new bill introduced in the House of Representatives and the Senate, The Supporting Affordability and Fairness with Every Bet (also called “the SAFE Bet Act,” H.R. 9590 and S. 5057) would do just that. The Act aims to address the public health challenges posed by sports betting. 

Introduced by U.S. Rep. Paul Tonko (D-N.Y.) and U.S. Senator Richard Blumenthal (D-Conn.), the Act would require states to gain approval from the Justice Department to offer legalized sports gambling. Approved states would need to adopt sports betting frameworks that, among other things, prohibit sports betting broadcast advertising between 8 a.m. and 10 p.m. local time, ban those ads during live sporting events, disallow ads that try to induce gambling through “bonus bets” and similar promotions and block marketing tactics that target problem or ineligible gamblers (such as those under the age of 21) and urge them to place bets. 

The Act would also outlaw proposition bets, which are also called “prop bets” or in-play bets and refer to wagers on specific events or outcomes in a game. For example, whether a player will record a certain number of rebounds during a quarter of a game or whether a hockey player will score during a period are prop bets. Under the leadership of president Charlie Baker, the NCAA has aggressively urged states to ban prop bets, which are notoriously difficult to detect. An athlete, coach or referee can rig a play in a way that furthers a prop bet but doesn’t impact who wins or loses a game and thus often evades notice.

The time for Congress to do something increasingly appears overdue. 

Consider Murphy and its aftermath. The ruling was a defeat for the Justice Department, major pro leagues and the NCAA and, from a practical standpoint, opened the door for states to legalize sports betting. As of this writing, sports betting is legal in 38 states plus Washington D.C. and Puerto Rico. 

Meanwhile, the same pro leagues that firmly pushed for PASPA’s passage and that openly decried sports betting’s addictive qualities, worried that players and coaches would fall prey to “underworld figures” and warned that bribed athletes would undermine the integrity of games by exhibiting “selective effort”, pivoted 180 degrees after losing Murphy. They turned legal defeat into business profit by partnering with sportsbooks, negotiating lucrative data licensing deals and striking gold with new revenue streams that tap into a growing, multibillion-dollar industry.

The fallout of legalized sports betting has garnered more attention in recent months. Sports betting ads, be they on television or online, are incessant and bombarding. Fans, including children, are constantly reminded about how easy it is to place a bet on a phone and even if they don’t want to bet on which team will win, they can place prop bets on how an individual player will perform by the end of game or even during part of the game. 

Then there are the scandals. Several pro athletes, including Jontay Porter (NBA), Tucupita Marcano (MLB) and Kayshon Boutte (NFL), have run afoul of league rules and in some cases laws because of their betting activities, and there have been several high-profile betting scandals involving college athletes. Pro leagues awkwardly punish athletes for sports betting while greenlighting business ventures that encourage betting. 

These developments have caught the eyes of social scientists and the legal community.

Charles Fain Lehman, a Manhattan Institute fellow, recently penned “Legalizing Sports Gambling Was a Huge Mistake” in The Atlantic. The article canvasses academic studies and finds: more than one in three Americans bet on sports; money spent on betting means less money put into investment accounts; with online sports betting, households are more likely to go bankrupt and suffer debt delinquency; and legal sports betting is linked to increases in domestic violence, anxiety and depression. A legislative fact sheet provided by Tonko’s office also indicates that one in one five individuals with a gambling addiction “will attempt suicide, the highest of any mental health disorder.” 

Altogether, it’s a harrowing picture. 

In their defense, leagues and players’ associations have invested sizable resources in instituting “responsible gaming initiatives.” The NFL, for example, recently extended a multimillion-dollar partnership with the National Council on Problem Gambling and, with the NFLPA, mandates extensive gambling-related education for players, coaches and agents. There are also restrictions on gambling signage in team facilities and each NFL team is assigned an integrity representative, who is usually a retired FBI agent or former cop, who monitors for suspicious activities and coordinates with local law enforcement. 

Although responsible gaming measures likely mitigate gambling problems, especially those of players and coaches and other individuals governed by leagues and unions, they’re limited in purview. Responsible gaming also isn’t designed to fully remedy underlying public health challenges. 

This is one of the reasons why several health and legal experts say the Act is critical.

Northeastern University law professor Richard Daynard, who is president of the Public Health Advocacy Institute (PHAI), describes sports betting as an addictive product backed by an industry that, like Big Tobacco years ago with smokers, portrays the bettor as simply making a choice while diminishing the role that advertising plays in influencing behavior.

Daynard is a legendary figure in legal circles. He was instrumental in litigation against tobacco companies, has spearheaded initiatives to address obesity, opioids, gun control and e-cigarettes, and has advised Tonko and Blumenthal on the Act. Last December, the PHAI brought a class action against DraftKings in a Massachusetts Superior Court alleging deceptive practices, misleading advertising and other claims that center on deposit requirements associated with bonus sign-up promotions (in court filings DraftKings denies any wrongdoing and argues the claims should be barred).

Daynard sees the Act as advancing key goals. “Online sports betting,” he told Sportico in an email, “has much more in common with casino slot machines than with traditional sports betting.”

Dr. Harry Levant, PHAI’s director of Gambling Policy who has also advised Tonko and Blumenthal, concurs. He describes the Act as the start of the federal government joining a movement that will bring needed public health reform and regulation.

“We have known for more than 10 years that gambling is an addictive product and gambling disorder is an addiction similar to heroin, opioids, tobacco, alcohol, and cocaine,” PHIA said in a statement. “With every other addictive product, the government seeks to regulate advertising, distribution, and consumption. With online sports gambling, the exact opposite is occurring as the gambling industry and its sports partners encourage people to bet on every micro-event within each game.”

Whether Congress embraces sports betting reform remains to be seen. As shown in other legislative topics related to the sports industry—particularly name, image and likeness—Congress has exhibited a pattern of displaying enthusiastic interest in reforms and holding high-profile hearings but failing to advance any bills. Yet given the public health dynamics identified by the Act, perhaps sports betting reform will have longer legs on Capitol Hill. 

We’ll see.