NFL (Accidentally) Defends Sports Betting as Game of Skill

We’ve recently discussed the notion of legal sports betting, and whether or not it could ever become a nationwide reality. One of the biggest obstacles, however, was that the national pro sports leagues do not generally approve of legalized sports betting. NBA Commissioner Adam Silver has been one major proponent of legal sports betting due to the need to regulate the practice more closely, but he hasn’t always had a lot of support from his peers. Now, the NFL is arguing that sports betting is not gambling because it is a game of chance, not a game of skill.

Or, to be more precise, they accidentally made that defense in favor of legal sports betting about twelve years ago. Confused? Let’s rewind a bit.

Recent Events in Legal Sports Betting

NFL Commissioner Roger Goodell is still against legal sports betting, but lawyers hired by the NFL in 2003 may have unintentionally hurt his cause. (Carlo Allegri/Reuters)

NFL Commissioner Roger Goodell is still against legal sports betting, but lawyers hired by the NFL in 2003 may have unintentionally hurt his cause. (Carlo Allegri/Reuters)

Back when a lawyer expressed 95% certainty that New Jersey would legalize sports betting by autumn of this year, we expressed some doubts. Not that we wouldn’t love to see it happen, but it’s the sort of claim that people often make when they think a law they support might get passed. But New Jersey is still working on legalization, and they aren’t really getting too far. Furthermore, whether or not sports betting should be considered a game of skill is not even entering into the conversation.

The federal appellate court works all year and, according to Fort Lauderdale legal expert Daniel Wallach, “The deadline is when they feel like it.” So while we’d like to continue believing that mounting pressure from citizens, casinos, politicians and sports leagues might influence a faster change, the courts really have no reason to give in. They can take as long as they want, allowing them to ensure that they are comfortable with their decision. And while New Jersey’s waiting for the results of their own battle, the nation at large is also dealing with the notion of legal sports betting.

It’s a shame that the courts can take their time, because pressure is mounting. We covered this a lot, when we talked about the growing sense of favoritism toward American sports betting. We talked about how men such as John McCain are helping by voicing their positive opinions, how sportsbooks around the world are helping by raking in massive amounts of taxable revenue, and how the sports leagues (such as the NBA and NHL) are helping by becoming a bit more open to the idea of legal sports betting.

There was one major sports league, however, that did not appear to be on the side of legal sports betting: the NFL. The league that is now claiming sports betting to be a game of skill is the same league that shut down Tony Romo’s fantasy football convention back in June. And while some stated the issue to be the planned location of the event—a Las Vegas casino—this masks the true matter at hand. The NFL’s policies do allow for sponsorships and events involving casinos. However, those casinos cannot run a sportsbook on the premises. And since the NFL doesn’t consider fantasy sports to be a form of real sports betting, it’s safe to wager that the convention wasn’t shut down for the sake of stopping the event itself.

NFL Commissioner Roger Goodell has certainly had a lot on his plate aside from the issue of legal sports betting. There has been a lot of controversy this year, from Deflategate to the Washington Redskins name controversy. The last thing he probably wants to deal with right now is the issue of legal sports betting, especially when he’s in the middle of trying to enforce stronger personal conduct policies for NFL players.

Unfortunately for Goodell, the issue of legal sports betting might be pushed by documented statements from both the NFL and the Department of Justice. ESPN did some research, and found that both organizations have previously referred to sports betting as a game of skill. This is the same designation that makes other forms of gaming such as poker and blackjack acceptable. If it’s a skill-based contest, then there is less reason to make it illegal. Goodell claims that the league has not changed their position on the issue of legal sports betting, but previous references to the practice as a game of skill might make their current position much more difficult to uphold.

This bit of news has some believing that legal sports betting will soon be on its way. Whether or not this is true, however, remains to be seen. Since some politicians such as John McCain would like there to be further congressional hearings before a decision is reached one way or the other, it could be some time before the outcome is determined. In the meantime, however, let’s take a look at the statements made by both the DOJ and NFL, and the reasons that sports betting is most definitely a game of skill.

Sports Betting as a Game of Skill

US Attorney Loretta Lynch is responsible for the DOJ’s definition of sports betting as a game of skill. (Jesse Ward/New York Daily News)

US Attorney Loretta Lynch is responsible for the DOJ’s definition of sports betting as a game of skill. (Jesse Ward/New York Daily News)

The DOJ was very straightforward in defining sports betting as a game of skill. To be more precise, the statements came from US Attorney General Loretta Lynch, who wrote back in 2013: “Sports betting…involves ‘substantial (not slight) skill.’ Sports bettors can employ superior knowledge of the games, teams, and players in order to exploit odds that do not reflect the true likelihoods of the possible outcomes.”

She also writes about betting lines: “While a sports bettor cannot (legally) influence the outcome of a game, sports bettors can and do influence the ‘betting line’ or ‘point spread’ in order to improve their odds of making a successful bet. Specifically, a gambler intending to make a large bet on one team may first place one or more smaller, strategic bets on the other team to move the betting line and make it more favorable for the ultimate intended bet.” By gosh…not only does that sound like a US Attorney General defending the concept of legal sports betting, but she actually seems to know what she’s talking about. If you don’t believe us, check out our complete guide to sports betting for more information on betting lines and how crucial they are to becoming a winning player.

The NFL was not so straightforward and, as has been pointed out above, probably didn’t mean to defend sports betting as a game of skill. What happened is that, back in 2003, they were trying to keep Delaware from renewing its football-themed sports lottery. They hired a law firm to represent them, and the lawyer made the case that “the Delaware Constitution does not permit the Delaware Lottery Office to offer such sports gambling.” There were multiple reasons given for this; however, the one that stuck out to ESPN was the fact that the lottery was a game of chance. In other words, it did not qualify as true sports betting because it was not a game of skill.

Interestingly enough, the arguments made by Lynch and by the NFL’s lawyers are very similar to arguments that we have made in the past. Back in April, we talked about the unfair stigma against sports betting, and how it’s more of a game of skill then some other legal gaming enterprises such as slot machines, craps, and roulette. At that time, we had no idea that the DOJ had made similar arguments two years prior, or that the NFL had made arguments against the lottery even before that.

However, it certainly makes sense. If you look at our guide to sports betting, linked above, you will see that those who really want to profit will often utilize a lot of math in their bankroll management. We’ve also written about the best methods of handicapping baseball, basketball, and football. If sports betting were not a game of skill, then one would not have to factor so many different stats into each wager.

Even prop betting, which arguably involves many more elements of chance that most other types of sports betting, could be considered a game of skill. In fact, we covered some of the best strategies for prop betting just last month. Those with a large amount of knowledge regarding teams, players, and various stats will generally have a slight edge over others when it comes to placing prop bets. This makes futures and other prop bets look like they might easily fall under Lynch’s definition of what constitutes a game of skill.

There are a number of strategies that influence a person’s success when it comes to sports betting. They have to be able to find the right sportsbook, choose the appropriate type of bet (which is generally anything other than parlays), manage their bankroll and read the stats to try and pick the right team. Is there an element of chance? Yes, just as skilled poker players may still run out of luck if the wrong cards are drawn. But if sports betting wasn’t a game of skill, then Vegas oddsmakers wouldn’t have accumulated the necessary skills to ensure that they always make a profit. Come to think of it, these documents from the DOJ and NFL haven’t really told us anything new. All they’ve really done is (thankfully) given the fight for legal sports betting a second wind.

The Current Legal Outlook for Bettors

MGM is hoping to capitalize on the newly revamped possibility of legal sports betting. (MGM Hakkasan Hospitality)

MGM is hoping to capitalize on the newly revamped possibility of legal sports betting. (MGM Hakkasan Hospitality)

The current legal outlook for bettors is something that seems to change slightly just about every time we cover new facts relating to the legalization of sports betting. That said, it will be pretty difficult to determine where things stand right now. We know that these documents describing sports betting as a game of skill will give proponents of legalization a somewhat stronger foothold, but we don’t know how long it will take or even if things will work out as positively as we’re hoping.

We do know, however, that a number of new opportunities will greet sports bettors if legal sports betting should become a reality. We’ve already talked about the new up and coming sports betting sites this year, but there are bound to be more if sports betting is legalized. There are also bound to be more brick and mortar venues, especially in states such as New Jersey that have been lobbying for this sort of thing for quite some time now.

Not surprisingly, one of the biggest new outlets for sports betting will come from Las Vegas. MGM recently introduced an arena on the strip with 20,000 seats, dedicated entirely to sports betting. Realizing that sports betting offers high revenues, they’ve teamed up with International Game Technology (IGT), another company that intends to make the most of legal sports betting if it should pass into law. The two are introducing a new sportsbook system and mobile app, which they hope to release by as early as November of this year.

One thing is for certain: if the designation of sports betting as a game of skill allows it to become legal, then the sports upon which people are allowed to wager will follow a similar guideline. For instance, Wrestlemania is not a game of skill since the outcome is predetermined. One sportsbook in particular tried to offer bets on wrestling, but their efforts were shut down by the Gaming Control Board. Luckily, the sports we cover (MLB, NBA, NFL, NHL, NCAA Basketball and Football) will all be safe. Unless some vast conspiracy is uncovered, no one can say that the outcomes of those sports are predetermined.

Online fantasy sports betting sites such as FanDuel and DraftKings are going to be extremely helpful in establishing precedent for legalized sports betting as a game of skill. When the federal government decided to start shutting down online poker sites and other online venues for various forms of gaming, they decided not to shut down fantasy sports sites. It was determined that “while fantasy sports involve both chance and skill, the skill elements are the dominant ones.” If they reach the same conclusion with traditional sports betting, then it will likely be legalized without much fuss.

The United States is not the only nation starting to revamp its view on sports betting. In Russia, there are rather strict regulations on the advertising of sportsbooks. However, they are considering a change to their laws that would allow sportsbooks to advertise on television and radio at any time of day. They would also be allowed to publish print ads, as well as advertisements in any building with an on-site sportsbook. The only places in which such advertising would not be allowed are public transportation terminals. This is likely due to the restriction that these ads cannot appeal to minors, thus cannot be permitted in places where numerous minors might see them.

So, other nations are beginning to adopt a more open-minded view of sports betting. Meanwhile, with the NFL accidentally defending the practice and the DOJ adamantly backing up their claim that sports betting is a game of skill, it looks like the United States might finally have the foothold needed to ensure that legal sports betting does become a reality. Goodell might not be happy about it, and the NFL will probably think twice before allowing their lawyers to release statements in the future. Either way, this could be a major win for sports bettors everywhere.