Delaware Supreme Court hears sports betting arguments
By Doug Denison, Staff Writer
Dover Post
Fri May 22, 2009,
DOVER, DEL. -
The Delaware Supreme Court heard oral arguments Thursday on the pros and cons of the sports lottery law signed by Gov. Jack Markell last week.
Lawyers chosen by the court to provide conflicting analyses of the matter each were given approximately 30 minutes to plead their cases.
At stake was whether or not the Delaware constitution allows for single-game betting or if it limits betting to a parlay system.
Additionally, the two attorneys plus a lawyer retained by the National Football League debated whether sports contests like football games rely enough on pure chance that betting on them can be deemed a “lottery.â€
In March, the governor asked the court to provide an advisory opinion on his proposed legislation, but the court said it would not comment on an unsigned bill. Under the procedure, each justice on the court will render a separate opinion on the matter. Though the opinions do not constitute a ruling of the court, they do carry weight if cases pertaining to the matter come before a Delaware court.
As the bill worked its way to the governor’s desk, the court asked for briefs from two Wilmington attorneys.
Arguing in favor of sports betting was attorney Andre G. Bouchard, of the firm Bouchard Margules & Friedlander.
Bouchard attempted to establish that a single-game bet, also known as a straight bet, is permitted under the law and that a betting system that relies on a point-spread or “line†cancels out the skill necessary to win an athletic contest and makes chance the determining factor for a winning wager.
Justice Randy J. Holland questioned Bouchard’s claim that the new law allows for straight bets, since specific betting systems are not named in the legislation.
Bouchard countered that since the law directs the Delaware Lottery Office to implement sports betting in a way that maximizes revenue and minimizes risk, straight bets with lines are legal.
Since straight bets are far more popular with gamblers than parlays, Bouchard said, the state is therefore directed to offer the more popular and profitable style of betting.
“[Nevada] derives most of the revenues from legalized gambling from single sporting event bets,†he said. “Parlay bets raise revenue to be sure, but are far secondary to straight bets in terms of their revenue potential…Straight bets are where the action is.â€
Justice Jack B. Jacobs also took Bouchard to task in his claim that the skill of players in a sports contest is not the determining factor in the outcome of a bet on that contest.
“Forgetting gambling, pitting one football team against the other, whatever the outcome, is going to be a matter largely of skill, is that right?†he asked.
Bouchard said that though skill is a factor in a football game, it is not the sole factor.
“There are many elements of chance in play on the field as well,†he said. “You can’t determine injuries that can happen in game time, you can’t determine the mood of the players, you can’t determine the weather…There are many factors you can’t control.â€
Bouchard said that when bookmakers set a line on a particular game, they account for all aspects of skill that could contribute to the outcome of the game. With an expertly-set line, the determining factor for the outcome of the bet becomes chance.
“[Without an] intermediary, an element of skill can be applied to making that wager, when you have the intermediary placing odds the whole equation changes,†Bouchard said. “I think a good argument could be made that it is pure chance in that case.â€
Arguing in opposition to the law was Lawrence C. Ashby, of the firm Ashby & Geddes, who said that not only does the manner in which the governor wants to implement the sports lottery violate the constitution, but straight betting with a line does not remove the element of skill inherent to a sports contest.
Ashby told the court that the legislation does not sufficiently address the measure of control the state will have over the sports lottery operation, something he said must be done to ensure that the law complies with the gambling portion of the constitution.
If the state is not the direct operator of the sports lottery, the law would not meet the constitutional test, he said.
“We’re going to hire a bookie who is not going to be under state control who is the critical operator,†Ashby said. “People are going to be licensed and hired, it’s all going to be independent contractors.â€
Ashby used most of his time to poke holes in Bouchard’s argument that straight bets with a line rely on pure chance which cannot be overcome by a better’s own skill and expertise.
By taking a different interpretation of scholarly studies referred to in Bouchard’s own brief, Ashby tried to show that though straight bets may average out to a win for the house over time, results from shorter periods show that betters can beat the system.
For example, he cited the picking prowess of renowned sports commentator Jimmy the Greek, who, Ashby said, was able to predict the outcome of 80% of professional football games in a single season.
“Mr. Bouchard won’t concede that a football game is predominantly speed, skill and endurance, but he should because 80% can’t be random,†he said. “All of life is filled with chance, but mostly you can get it right and you can get it within a few points.â€
Chief Justice Myron T. Steele questioned Ashby’s claim that betters who wager on a game do so with immunity from chance, even if they have superior knowledge of the game and players, as Jimmy the Greek did.
Steele gave the example of a better who wagers early when the line is in his favor, only to see his team’s quarterback benched.
“You bet at the window when the quarterback was healthy, and then you find out the next day he’s been locked up for DUI and he’s not going to play. Doesn’t a chance distort whatever element of skill you bring to the window?†he asked Ashby.
Ashby responded by saying that while those types of circumstances are instances of chance, they are not the primary factors in determining who wins a sports contest.
“All gambling assumes that, you assume the horse is still going to be healthy, the jockey isn’t going to be locked up. There is an element of chance but by and large, most of the time with the kind of gambling we are talking about, there is not lightning hitting the quarterback in the fourth quarter. It is a remote chance, it is not the causative chance,†he said.
Ashby hung his hat on this contention. “It’s a gamble, but its not a lottery,†he said.
After he finished, Ashby ceded approximately five minutes of his time to NLF attorney Kenneth J. Nachbar, of the Wilmington firm Morris, Nichols, Arsht and Tunnell.
Nachbar’s focused his argument on questioning the court’s ability to offer an opinion on the issue without proper fact-finding and in the absence of an evidence record that would be established as part of a normal court case.
While Nachbar’s presentation seemed to be a set up for a formal lawsuit on behalf of the NFL, he said after the hearing that his client was not yet prepared to discuss making that leap.
“We will wait and see what the Supreme Court does, and then we’ll act appropriately,†he said.
Also in the courtroom was Ed Sutor, CEO of Dover Downs Hotel & Casino, who said he was pleased with Bouchard’s argument.
“I think our advocate made a compelling case,†he said.
Sutor also said he and his colleagues in the Delaware gambling industry have buried the hatchet with the administration after a round of bitter debates over the governor’s plan to raise the state’s share of gambling revenues—a proposal which made its way into the signed law.
For now, Sutor and the industry are on Markell’s side.
“The closer to Vegas-style betting we get the better it will be,†Sutor said. “If we’re forced to go with the parlay it will make it far less profitable.â€
Steele did not say when the justices would render their opinions, but he did guarantee they would deliver them “as fast as humanly possible.â€
By Doug Denison, Staff Writer
Dover Post
Fri May 22, 2009,
DOVER, DEL. -
The Delaware Supreme Court heard oral arguments Thursday on the pros and cons of the sports lottery law signed by Gov. Jack Markell last week.
Lawyers chosen by the court to provide conflicting analyses of the matter each were given approximately 30 minutes to plead their cases.
At stake was whether or not the Delaware constitution allows for single-game betting or if it limits betting to a parlay system.
Additionally, the two attorneys plus a lawyer retained by the National Football League debated whether sports contests like football games rely enough on pure chance that betting on them can be deemed a “lottery.â€
In March, the governor asked the court to provide an advisory opinion on his proposed legislation, but the court said it would not comment on an unsigned bill. Under the procedure, each justice on the court will render a separate opinion on the matter. Though the opinions do not constitute a ruling of the court, they do carry weight if cases pertaining to the matter come before a Delaware court.
As the bill worked its way to the governor’s desk, the court asked for briefs from two Wilmington attorneys.
Arguing in favor of sports betting was attorney Andre G. Bouchard, of the firm Bouchard Margules & Friedlander.
Bouchard attempted to establish that a single-game bet, also known as a straight bet, is permitted under the law and that a betting system that relies on a point-spread or “line†cancels out the skill necessary to win an athletic contest and makes chance the determining factor for a winning wager.
Justice Randy J. Holland questioned Bouchard’s claim that the new law allows for straight bets, since specific betting systems are not named in the legislation.
Bouchard countered that since the law directs the Delaware Lottery Office to implement sports betting in a way that maximizes revenue and minimizes risk, straight bets with lines are legal.
Since straight bets are far more popular with gamblers than parlays, Bouchard said, the state is therefore directed to offer the more popular and profitable style of betting.
“[Nevada] derives most of the revenues from legalized gambling from single sporting event bets,†he said. “Parlay bets raise revenue to be sure, but are far secondary to straight bets in terms of their revenue potential…Straight bets are where the action is.â€
Justice Jack B. Jacobs also took Bouchard to task in his claim that the skill of players in a sports contest is not the determining factor in the outcome of a bet on that contest.
“Forgetting gambling, pitting one football team against the other, whatever the outcome, is going to be a matter largely of skill, is that right?†he asked.
Bouchard said that though skill is a factor in a football game, it is not the sole factor.
“There are many elements of chance in play on the field as well,†he said. “You can’t determine injuries that can happen in game time, you can’t determine the mood of the players, you can’t determine the weather…There are many factors you can’t control.â€
Bouchard said that when bookmakers set a line on a particular game, they account for all aspects of skill that could contribute to the outcome of the game. With an expertly-set line, the determining factor for the outcome of the bet becomes chance.
“[Without an] intermediary, an element of skill can be applied to making that wager, when you have the intermediary placing odds the whole equation changes,†Bouchard said. “I think a good argument could be made that it is pure chance in that case.â€
Arguing in opposition to the law was Lawrence C. Ashby, of the firm Ashby & Geddes, who said that not only does the manner in which the governor wants to implement the sports lottery violate the constitution, but straight betting with a line does not remove the element of skill inherent to a sports contest.
Ashby told the court that the legislation does not sufficiently address the measure of control the state will have over the sports lottery operation, something he said must be done to ensure that the law complies with the gambling portion of the constitution.
If the state is not the direct operator of the sports lottery, the law would not meet the constitutional test, he said.
“We’re going to hire a bookie who is not going to be under state control who is the critical operator,†Ashby said. “People are going to be licensed and hired, it’s all going to be independent contractors.â€
Ashby used most of his time to poke holes in Bouchard’s argument that straight bets with a line rely on pure chance which cannot be overcome by a better’s own skill and expertise.
By taking a different interpretation of scholarly studies referred to in Bouchard’s own brief, Ashby tried to show that though straight bets may average out to a win for the house over time, results from shorter periods show that betters can beat the system.
For example, he cited the picking prowess of renowned sports commentator Jimmy the Greek, who, Ashby said, was able to predict the outcome of 80% of professional football games in a single season.
“Mr. Bouchard won’t concede that a football game is predominantly speed, skill and endurance, but he should because 80% can’t be random,†he said. “All of life is filled with chance, but mostly you can get it right and you can get it within a few points.â€
Chief Justice Myron T. Steele questioned Ashby’s claim that betters who wager on a game do so with immunity from chance, even if they have superior knowledge of the game and players, as Jimmy the Greek did.
Steele gave the example of a better who wagers early when the line is in his favor, only to see his team’s quarterback benched.
“You bet at the window when the quarterback was healthy, and then you find out the next day he’s been locked up for DUI and he’s not going to play. Doesn’t a chance distort whatever element of skill you bring to the window?†he asked Ashby.
Ashby responded by saying that while those types of circumstances are instances of chance, they are not the primary factors in determining who wins a sports contest.
“All gambling assumes that, you assume the horse is still going to be healthy, the jockey isn’t going to be locked up. There is an element of chance but by and large, most of the time with the kind of gambling we are talking about, there is not lightning hitting the quarterback in the fourth quarter. It is a remote chance, it is not the causative chance,†he said.
Ashby hung his hat on this contention. “It’s a gamble, but its not a lottery,†he said.
After he finished, Ashby ceded approximately five minutes of his time to NLF attorney Kenneth J. Nachbar, of the Wilmington firm Morris, Nichols, Arsht and Tunnell.
Nachbar’s focused his argument on questioning the court’s ability to offer an opinion on the issue without proper fact-finding and in the absence of an evidence record that would be established as part of a normal court case.
While Nachbar’s presentation seemed to be a set up for a formal lawsuit on behalf of the NFL, he said after the hearing that his client was not yet prepared to discuss making that leap.
“We will wait and see what the Supreme Court does, and then we’ll act appropriately,†he said.
Also in the courtroom was Ed Sutor, CEO of Dover Downs Hotel & Casino, who said he was pleased with Bouchard’s argument.
“I think our advocate made a compelling case,†he said.
Sutor also said he and his colleagues in the Delaware gambling industry have buried the hatchet with the administration after a round of bitter debates over the governor’s plan to raise the state’s share of gambling revenues—a proposal which made its way into the signed law.
For now, Sutor and the industry are on Markell’s side.
“The closer to Vegas-style betting we get the better it will be,†Sutor said. “If we’re forced to go with the parlay it will make it far less profitable.â€
Steele did not say when the justices would render their opinions, but he did guarantee they would deliver them “as fast as humanly possible.â€
get it done Delaware, I will go up there at least once every other weekend if straight bets are legalized, that equals gas, food, hotel, betting games and horses maybe even some BJ and you know people from philly, ny etc etc will do the same
