Barstool’s ‘Can’t Lose’ Promo Subject Of Massachusetts Gaming Commission Hearing

Written By Dan Holmes on June 7, 2023 - Last Updated on August 8, 2023

Following more than two months of deliberation, the Massachusetts Gaming Commission (MGC) held an adjudicatory hearing on a “Can’t Lose Parlay” ad campaign used by Barstool Sportsbook in March.

Responsible gambling has been a big focus for the MGC, and Barstool’s use of “Can’t Lose Parlay” falls in a bit of a gray area when it comes to Massachusetts sportsbook promotions.

The commissioners spent Wednesday discussing the terminology. Here’s what you need to know:

Consumers and ‘risk-free’ activity

On March 10, the very first day with legal Massachusetts online sports betting apps, Barstool offered a “Can’t Lose Parlay” (CLP) promotion on a podcast hosted by Dan Katz, also known as “Big Cat.”

The CLP was promoted in the Barstool sports betting app in Massachusetts. In addition, Barstool founder Dave Portnoy Tweeted a photo of his bet slip for a wager of $13,458.70 on the CLP via the Barstool Massachusetts app.

Jonathan M. Albano defended PENN Entertainment, which owns Barstool Sportsbook. He acknowledged the “Can’t Lose Parlay” was featured on the date in question, but argued that it did not violate Massachusetts gaming law.

“Big Cat’s Can’t Lose Parlay did not violate state law,” Albano said. “In context through the eyes of a reasonable consumer, we submit that [when they] saw a parlay that requires a customer to win not one, not two, not three, but four bets, no reasonable person would believe they were engaging in a risk-free activity.”

While he stressed that in the opinion that the Barstool “Can’t Lose Parlay” did not violate Massachusetts sports betting law, Albano explained that his company would permanently end the “Can’t Lose Parlay” offering. According to PENN, Barstool has not run the Can’t Lose Parlay offering since March 13.

Satire vs. legality

“The [Can’t Lose Parlay] is a humorous, satirical reference to Mr. Katz’s reputation as an awful bettor,” Albano said. “Katz [has admitted] that he is a terrible, terrible gambler, and ‘a loser who never wins at gambling.'”

Albano added that Katz had regularly shared on social media that “no one should ever listen to his advice.”

Albano leaned on the argument that the Barstool “Can’t Lose Parlay” is not to be taken seriously, because it relates to Katz’s personality and reputation as a bad gambler.

“This is not a factual matter, but rather a satirical reference,” Albano said.

According to Albano, the Can’t Lose Parlay had more than 122,000 unique players in several states in 2023, and 55% were repeat customers. Of those, 90% of them lost their first bet. The fact that many customers placed a parlay bet a second time is an indication that they were not duped into thinking it was without risk, Albano argued.

Albano also mentioned that PENN offers links and access to gambling resources and help to explain what a parlay is, and how it’s riskier, but with potential for larger payouts.

He also cited that no other state has had consumer issues with the CLP.

“The CLP has been offered in 15 jurisdictions,” Albano explained. “No regulatory authority has objected to the offer, and (PENN) has no record of a consumer objecting to the offer. Massachusetts residents are not less sophisticated, less able, less educated to understand that you have to win four bets to win the parlay.”

RELATED: Responsible Gambling Support In Massachusetts

PENN defends Portnoy’s social media use

PENN defended Portnoy’s use of social media to share his Can’t Lose Parlay wager.

“Everything in the tweet was accurate. [There was] no false statement. The tweet is not and was not a regulatory violation,” said Albano, who pointed out that BetMGM has also shared posts on social media when Mattress Mack has placed large sports bets with its app.

“The legal standard that applies here is the same that applies for signs we’ve all seen like ‘world’s best pizza,’ [or] buffalo wings that contain no buffalo meat, or that Captain Crunch Berries are made with berries or Froot Loops are made with fruit. No reasonable person would take [Can’t Lose Parlay] as a risk-free activity.”

Commissioner Eileen O’Brien pressed PENN on the issue of whether Portnoy’s tweet was in violation of the Massachusetts regulation that prohibits the endorsement of a “risk-free” bet.

Albano wriggled around the issue of the tweet, struggling to explain whether it was an outright endorsement, while admitting PENN “owned” the message because it came from an individual closely associated with Barstool.

“Anyone who was interested in the parlay, who saw his tweet, would have to go to Barstool to place a bet. It was a promotion of the bet,” Albano said.

Commissioner Brad Hill said that if even a small portion of the “average joe” bettors in Massachusetts are confused by CLP, it’s his job to protect those consumers.

But Albano argued that the standard set by courts across the country, including the US Supreme Court, is whether a “reasonable person” would be misled. He cited that the Federal Communications Commission has established a standard that such instances of speech in advertising must be looked at in context and must also weigh the reasonableness of the intended consumer.

“The standard of how the language is viewed in the eyes of a reasonable person is the standard that the regulation should be applied.” Albano said. “The law is clear on that.”

The MGC moved to a private session to discuss the alleged Barstool violation. Any decision, including disciplinary action, will be released in writing at a future date.

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Dan Holmes is a Staff Writer for PlayMA with plenty of experience under his belt. Dan has written three books about sports and previously worked for the National Baseball Hall of Fame and Major League Baseball. He also has extensive experience covering the launch of sports betting in other states, including Ohio and Maryland. Currently, Dan is residing in Michigan with his family.

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