At a recent Massachusetts Gaming Commission meeting, commissioners discussed clarifying rules regarding personalities directly encouraging specific wagers.
No employees of sports betting operators, vendors or third-party marketing entities “may advise or encourage patrons to place a specific wager of any specific type, kind, subject or amount,” according to current Massachusetts sports betting advertising regulations.
The commission’s legal counsel said implementing the rule created some confusion. Many raised questions about how it applies to formal advertising and more casual marketing that uses “paid public figures advising customers.”
Amendments proposed to help clarify issues with regulation
At the Feb. 15 MGC meeting, counsel presented three potential amendments to help clarify these two regulatory questions:
- Who, if anybody, may encourage, suggest or discuss the merits of a particular wager?
- What disclosure requirements apply to individuals who are permitted to encourage, suggest or discuss the merits of a particular wager?
First, commissioners proposed an amendment to prohibit employees of sports betting operators from encouraging a particular wager. Additionally, the amendment kept anyone “otherwise paid by the operator” or affiliated marketing entities from persuading potential bettors.
This could include social media influencers or sports personalities sponsored by or paid to endorse sports betting platforms.
The other suggested amendments would allow those individuals compensated by operators or associated entities to encourage particular bets as long as they follow FTC guidelines regarding paid endorsements and public disclosure.
However, FTC guidance doesn’t offer precise guidelines since there are a variety of platforms on which endorsements could be made.
For example, if a recommendation was made on social media, a simple “sponsored” or “paid” demarcation might suffice. If the recommendation was part of a TV broadcast, a verbal acknowledgment of any paid connection might be more suitable.
ESPN Bet deal raised concerns that regulation needed revisiting
Mina Makarious, a partner at the firm Anderson & Kreiger who works on regulatory matters for the MGC, said the idea for a clarifying amendment was to “bring additional options that would allow patrons to know when someone is speaking about a sports wager, whether or not they are in some way affiliated, endorsing (or) being paid by in some other way by the operator or a part of their marketing.”
He said the commission’s sports wagering division had questions on encouraging wagers by “folks that may not be as clearly tied to the operators.” Makarious also said ESPN’s partnership with PENN Entertainment to launch ESPN Bet was partially responsible for bringing the issue to the forefront again.
“Candidly, the ESPN BET issue was another reminder to look at this (regulation) again. When we first talked about this, some of the media platforms the operators were talking about were coming from companies that were recognized publicly by folks as operators first and media second. ESPN is just the opposite. So, it at least triggered the thought of, ‘Should we be looking at this again?’”
ESPN Bet MA launched last November after Penn abandoned its previous deal with Barstool Sports. Last year, the MGC held hearings with PENN officials over Barstool’s “Can’t Lose Parlay” promotion. The commission alleged that it violated rules around misleading advertising language.
Commissioners request input from AG
Commissioner Eileen O’Brien said she was leaning toward the amendment that strengthens the original intent of the regulation and not allow wager recommendations with disclosures.
“This is an area that I feel very strongly that we don’t want to weaken in any way. We worked really hard to try to draw a line and be at the forefront of this.
“The ESPN/ESPN Bet deal, this is getting into some of that gray area – about who can do a bet, who can advocate, which hat are you wearing. I’m not a big fan of disclaimers solving it, letting you do something that we don’t think is great, then slapping a disclaimer on and calling it OK.”
The commission decided to table the issue for now. It has requested input from the Massachusetts Attorney General’s Office (which helped shape the initial regulation) and from sportsbook operators. Commissioners generally felt that they needed more context and examples of potential violations before making a decision on an amendment.
