American football

Betting on Transparency

Betting on Transparency

March 10, 2020

Betting on Transparency

By: James Trusty

Professional sports leagues are struggling to take coherent and consistent positions on the emerging market for legalized sports betting. Commissioners are issuing edicts to their leagues about the danger gambling poses to their sport, but they are also beginning to officially partner with the gaming industry due to the promising bottom-line impact and growing acceptance of sports betting in general. Their wobbling between moral opposition and financial partnership is ignoring the trajectory of gambling in the U.S. as well as the availability of a middle ground between moral absolutism and criminal collusion.

Fumbling Along with Selective Outrage

NFL Commissioner Roger Goodell recently issued an email to all NFL employees:

“Gambling, particularly betting on NFL games or other sports, presents risks to the integrity of our competition and team cohesion, and can undermine the confidence and trust of our fans and colleagues in America’s greatest game. We therefore owe it to our fans and everyone associated with the League to take all appropriate steps to safeguard our game against possible threats from illegal gambling as well as gambling in a legal, regulated context.”

The rules say “no gambling in any form on any NFL games,” and that apparently covers daily fantasy sports as well, with the only exception being made for fantasy leagues with prizes under $250. For the moment, then, the NFL appears to be taking a hardline stance about player (or other employee) gambling.

In a previous blog on this subject (https://www.ifrahlaw.com/ifrah-on-igaming/why-is-player-betting-a-cardinal-sin/) I pointed out the sordid cost-benefit analysis that supports the current NFL policy. A 6’4” defensive end beating up a wife or child is acceptable to the league, as it does not seem to threaten the league’s bottom line.  But an injured player, out for the season and watching a playoff game that does not include his team, could risk permanent suspension for punching a $10 bet into his mobile app. And, of course, the NFL crimps its public announcements of purity by having a Daily Fantasy Sports partner, a casino partner, and a sports betting data partner.

The Steady Drumbeat of Hypocrisy

The MLB has made it clear that a player (or umpire, Club or League official or employee) faces a one-year ban for betting on any baseball game, and a lifetime ban for betting on his own team.  Major League Rule 21(d) even requires prominent posting of this prohibition, in English and Spanish, in the clubhouse to remind players that gambling is not permitted.

But let’s take a look at the gargantuan “integrity” scandal embroiling the league right now:  the Astros’ sign-stealing, trashcan-drum signaling, World Series theft.  This Spring training has featured flip-flopped Floridians in folding chairs booing Astros at every at-bat, likely followed this summer with every major league pitcher throwing beanballs at the earholes of these Houston Black Sox, er Astros. The vigilante movement to discipline unpunished players may be good for MLB’s ratings but it is increasingly hard for the Commissioner to pretend he’s the guardian of integrity when the Astros literally stole the 2017 World Series without penalty. Ask Dodger ace Clayton Kershaw how he feels about 51 off-speed pitches being thrown without even a batter nibbling, or Mike Bolsinger, who lost his job in the Majors after coded trash can drumming ensured his every pitch was known in advance. Now, this integrity-filled enterprise has security guards stealing signs from any fan who dares remind us of the scandal.

In the public discourse over how to manage the emergence of sport betting, it seems like Major League Baseball should defer to the rest of us.  Fans got past the human growth hormone years, when Mark McGwire, Barry Bonds, and Sammy Sosa needed needles more than their bats, but this current scandal needed a cleansing like Judge Kennesaw Mountain Landis in 1919, lopping off professional heads and asking questions later. Instead, every player has escaped even the most minimal of punishments. One logical question is whether the league is afraid of finding out that the Astros were just the one team that got caught. They may be afraid that one bogus World Series winner is just the tip of the cheating iceberg. Either way, until they show a modicum of concern about fundamental fairness, we probably cannot learn much from MLB’s position(s) on gambling.

Puckering Up to Sports Betting

Hockey has proven to be an interesting study when it comes to gambling. Commissioner Gary Bettman used to express serious moral opposition to sports betting, or at the very least he would use a rhetorical cousin to moral opposition, by saying sports fans who bet on games will create an “unseemly” presence within the otherwise virtue-filled crowd. It is as if Bettman watched too many old movies, envisioning shady characters with fedoras and cigars who would invade the rink, showering goalies with cash so they could let a few goals slip by. But when the floodgates for legal betting broke open with the Supreme Court’s 2018 overruling of the Professional and Amateur Sports Protection Act in Murphy v. NCAA, the league quickly anticipated and embraced the change that was coming. By late 2018, NHL had an official sports betting partner with MGM Resorts, and more recently it announced partnership with William Hill, the sportsbook that already dominates the Vegas betting scene. The league continues to have prohibitions against player betting, but as it welcomes the notion of expanding its fan base through betting, this seems an opportune time to fine-tune both its rules and its enforcement operations.

Integrity Enforcement

Calling for a more transparent, consistent, and permissive approach does not mean that I want games to be fixed or players to bet on their own games. While the gaming world has changed dramatically from the early days of Mafia concerns, there still needs to be vigilance, or even hyper-vigilance, when it comes to the integrity of the games.

What the casual sports fan may not fully appreciate is that we are in a technological state where analytics reign supreme. If Player X decided to miss two free throws in a row at the end of a game, someone somewhere will be able to announce that in the last 2,346 free throws by this player during games, practice, or on a nearby park’s playground, he never flattened his shot’s arc apex under 42% like he did on those two missed shots. Maybe the leagues create “speed gun” policies, where a player suspected of gambling, based upon technology, impliedly consents to a full examination of his electronic devices. If we lighten the general restriction (still not allowing a player or team employee to bet on his own team or his team’s opponent) we can still demand absolute transparency. Maybe add in that any and all bets made by league employees must be electronically submitted to the league’s front office within four hours of their placement.  Perhaps a cap on overall betting expenditures so no player spends their way into addiction or misery. There is probably still room to say that technology alone will not build the entire case for someone throwing a game, but it will certainly establish a significant lead, and it might usher in the strictest and most scientific enforcement standards ever used by the professional leagues.

So put me down in the category of freedom. And freedom from hypocrisy when it comes to the value system that the major sports leagues espouse. Transparency, consistency and technological tracking will do a lot more for sports integrity than the current ad hoc and profit-based decision making that we see across the leagues.

James Trusty

James Trusty

James M. Trusty After 28 years as a prosecutor, James (“Jim”) Trusty brings to Ifrah Law extensive experience in complex, multi-district white collar litigation, especially in matters involving RICO, The Computer Fraud and Abuse Act, and The Money Laundering Control Act of 1986.

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