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Posted on: June 8, 2023, 04:38h.
Last updated on: June 8, 2023, 04:38h.
Free speech and sports betting are colliding in Massachusetts. At issue is Barstool Sports and its “Can’t Lose Parlay” promotion, which Penn Entertainment falls under the same category as Buffalo chicken wings.
In Massachusetts, it’s prohibited to include any language in advertisements or promotions for sports betting that a “reasonable person” might interpret incorrectly. This includes the use of “risk-free,” which, along with “free bets,” has now fallen out of favor with gaming regulators in many jurisdictions.
Barstool was called in front of the Massachusetts Gaming Commission (MGC) on Wednesday to explain its “Can’t Lose Parlay” promo available during March Madness. Penn rejected the allegation that the promo implied a risk-free offer and laid out its case, although the debate is far from over.
Testing The Legal Limits
In the promo, which Barstool began using in other states in 2019, longtime sports media personality and Barstool podcast host Dan Katz loads up a parlay bet. The ad was designed to show the ease with which bettors can create multi-leg parlays and carried the “Can’t Lose Parlay” language.
The MGC asserts that any reasonable person would assume that catch-phrase means there’s zero risk in placing the bet. Any sports bettor, even someone who has only placed a single bet, knows that all bets carry risks.
Penn lawyer Jonathan Albino asserted as much during the hearing. He pointed to the satire involved – Dan Katz is not known for being a betting sharp – and that the MGC doesn’t have the authority to define “reasonable person.”
He also asserted that other consumer products could fail the “reasonable person” test. Among these, he said are Buffalo chicken wings and Crunch Berries cereal. No reasonable person believes that Buffalo chicken wings contain buffalo meat, nor do they believe that Crunch Berries contains real berries.
Deflating the MGC’s stance even more, Penn stated that only 122,000 “Can’t Lose” bets took place. Of those, the majority of the bettors were experienced bettors and none was from Massachusetts.
Barstool has already removed the promo and, in order to stay on the regulator’s good side, promised to never revive it again.
The MGC hasn’t yet decided on whether there should be any punishment. The commission recessed for further deliberations at a later time before issuing its ruling.
Free Speech and Free Bets
Albano made it clear that now is not the time for the MGC to “start a different speech regulation regime.” The regulator’s board is made up almost entirely of lawyers, with the exception of Bradford Hill, but this doesn’t mean they can establish laws outside the commission’s realm.
There has been a push to ban the use of “free bet,” “free play” and other verbiage in gambling ads. Pennsylvania was one of the first to ban sportsbooks from using the language.
Some regulators believe that the phrases leave consumers believing there’s no risk involved and that they can get something completely for free, with no investment. However, the business model has been in use in other consumer segments for decades.
Every consumer is used to seeing “buy one, get one free” or “try before you buy” ads. All of them require a financial commitment and, in many cases, carry a large and hidden risk. Sports bettors, on the other hand, know there’s a risk.
The MGC argued that a new bettor wouldn’t have the education to know. However, a new bicycle rider can’t sue a manufacturer because he didn’t learn how to properly ride before jumping on the bike. That would be a reasonable expectation.
Arguing the semantics of “reasonable person” or “risk-free” at this point won’t solve the issue. Clear guidelines – designed only with the help of gaming industry insiders – that can be applied across the board are necessary.
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