By: Nicole Harvey
On September 12, Representative Paul Tonko (D-N.Y.) and Senator Richard Blumenthal (D-Conn.) introduced the Supporting Affordability and Fairness with Every Bet Act (“SAFE Bet Act”) on the footsteps of the Capital. The legislation addresses a broad range of issues related to sports betting, including safeguards against gambling addiction, predatory advertising, suspicious activity reporting, and collegiate prop betting. The most significant—and most controversial—aspect of the bill is that it would require states to apply for the right to “administer a sports wagering program.”
Under the proposed framework, states would have to renew their sports wagering program license every three years. The U.S. Attorney General (“AG”) would be responsible for reviewing the applications and determining whether a state’s sports wagering program meets the federal standard. During the press conference announcing the bill, Blumenthal pointed to “faint-hearted and half-baked” state regulation to justify such a stringent level of federal oversight.
That characterization did not sit well with lawmakers who spent countless hours crafting state legislation to make responsible gaming a reality for their constituents. The American Gaming Association expressed a similar sentiment, with Chris Cylke, Senior Vice President of Government Relations, declaring, “[i]ntroducing heavy-handed federal prohibitions is a slap in the face to state legislatures and gaming regulators who have dedicated countless time and resources to developing thoughtful frameworks unique to their jurisdictions.” An interview in May of this year with National Collegiate Athletic Association (“NCAA”) President and former Massachusetts Governor, Charlie Baker, regarding prop betting also throws cold water on Blumenthal’s claim that state regulation is “faint-hearted.” In the interview, Baker called for a ban on college prop bets and stated, “[t]he NCAA has been working with states to deal with these threats and many are responding by banning college prop bets.” Even the National Council on Problem Gambling (“NCPG”) gave the SAFE Bet Act a lukewarm reception, expressing in a statement that they were “neutral” on the bill and pivoted to endorsing the Gambling Addiction Recovery, Investment, and Treatment Act instead.
Although it did not endorse the SAFE Bet Act, the NCPG did commend the bill for drawing attention to the need for stronger consumer protections for gamblers; and they are right to do so. Gambling addiction is a recognized psychiatric disorder; and, therefore, regulations should treat gambling just like alcohol, tobacco, and other addictive substances. However, Congress can implement safeguards proposed in the SAFE Bet Act—such as prohibiting targeted and predatory advertising, establishing self-exclusion lists, and mandating that a portion of sports wager operator’s revenue fund addiction treatment and education programs—through federal statutes alone. This roundabout method of mandating that state law incorporate these measures rather than codifying them directly in the federal code is peculiar.
In addition to the SAFE Bet Act’s strange statutory framework, the vagueness of some of the provisions will make it difficult for states to craft responsive policies. For example, the provision regarding addiction treatment and education mandates that state codes and regulations will ensure an “appropriate percentage” of operator revenue goes toward funding those measures. However, it provides no guidance as to how states should determine what constitutes an “appropriate percentage.” Presumably, that will be up for the AG to determine, given the bill empowers the AG to accept or deny a state’s application.
This opens a whole other can of worms given the AG is a political appointee and their policy stances can vary greatly administration-to-administration. What one AG deems an “appropriate percentage,” the next may not. A three-year renewal cycle means states will have to obtain recertification from each executive administration. This creates the potential that states will need to make significant changes to their gambling laws and regulations every three years to align with the current administration’s policies.
In conclusion, Senator Blumenthal may have been throwing a stone at a glass house when he called state efforts to regulate sports betting “half-baked.” In its current form, the SAFE Bet Act seems like a way for Congress to implement its broad ideas for reform and pass off the challenging work of actually creating a comprehensive policy to the states. If Congress feels that sports betting necessitates a national policy, it should roll up its sleeves and craft detailed legislation itself.
Student Bio: Nicole Harvey is a third-year evening student at Suffolk University Law School and a staff member for the Journal of High Technology Law. Nicole is also an Intelligence Analyst at the Office of the Massachusetts Attorney General. She received a Bachelor of Science degree in Politics, Philosophy, and Economics, with a concentration in Law & Justice, and a minor in Law & Public Policy from Northeastern University in 2019.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL, Suffolk University Law School, or the Office of the Massachusetts Attorney General.
