Divergent views on gaming law
Posted May 17, 2018 7:47 a.m. EDT
ALBANY, N.Y. _ Don't expect to make a legal bet on the NBA finals this spring in New York.
Despite the state Legislature paving the way for sports gambling almost five years ago, regulators in New York tasked with implementing a framework for the industry appear to be in a holding pattern following the U.S. Supreme Court's decision Monday to strike down a limit on the states that can offer sports gambling.
The state Gaming Commission is still reviewing the court's ruling and has not begun to roll out draft regulations that would eventually enable the new upstate casinos to provide sports gambling on their premises.
In New Jersey, sports gambling is on pace to be available before the end of the month. The Oneida Indian Nation, which operates Turning Stone Casino in Central New York, has indicated plans to adopt sports gambling soon.
Gov. Andrew M. Cuomo argued on Monday that the state's sports gambling language, tucked into the 2013 law authorizing full-scale casinos outside of Native American reservations, was not sufficient for the four full-scale casinos to offer sports gambling. "I don't see any way short-term that they can do that without legislative action," he said.
This analysis runs counter to the interpretation of industry experts and state Assemblyman Gary J. Pretlow, D-Yonkers, who was one of the authors of the 2013 law. Aside from the Legislature approving a tax rate, he said, the new upstate casinos will already have the ability to offer sports gambling once the Gaming Commission promulgates regulations.
Pretlow said the 2013 law required action by the commission if the casinos wanted to offer sports gambling. "They can't say, 'We're not doing it,'" he said.
Still, the commission is unlikely to propose regulations until they get a green light from the governor, according to Michael Kane, president of the New York Gaming Association, whose members include the Saratoga Casino Hotel and Rivers Casino & Resort in Schenectady.
"I don't expect anything from the Gaming Commission at this point," he said.
Cameron Macdonald, executive director of the Government Justice Center, contends the four new upstate casinos could take legal action to force the commission into acting. "It might be the type of thing where they could bring some sort of Article 78 proceeding demanding that the administrative body do its job," he said.
Kane said he wasn't aware of discussions about this possibility and doubted a casino would pursue a legal avenue to prompt state action.
In the wake of the Supreme Court's ruling, state legislators in both houses are working on crafting a new comprehensive framework for sports gambling before they go home for the summer in five weeks. The state Senate is hoping to roll out amendments to their legislation this week and the state Assembly could advance their proposal later this month.
Senate Republicans discussed the issue this week and Pretlow said Assembly Democrats were ready to act, but Cuomo has maintained there isn't enough time in the legislative session to act.
"At this point the governor doesn't need to be involved," Pretlow said. "The Legislature needs to do the legislation."
Any changes to the state law will have to comply with the state constitution, which defines what type of gambling is allowed. In 2013, a constitutional referendum was approved that allowed casino gambling at up to seven facilities and left the specifics to the Legislature.
Proponents of sports gambling maintain that it's legal under the recent amendment as long as it falls under the umbrella of the new casinos.
A focus of both houses is expanding sports gambling to other operators, such as the Saratoga Casino Hotel, Capital OTB and NYRA. These operators would have to work in a partnership with the full-scale casinos.
"It's about what we have to do to remain constitutionally correct," Pretlow said.
New legislation would also be necessary to authorize online sports gambling, as existing law restricts it to the casino premises.
Macdonald anticipated that if a sports gambling framework emerges that excludes interested operators, the parties who were left out might bring a legal challenge to the constitutionality of sports gambling in New York.
He argued that sports gambling goes beyond the authority approved by voters in the constitutional referendum.
"If you probably ask the average New York voters, they weren't thinking about the sports book tucked into the side," Macdonald said.
But Macdonald also noted that daily fantasy sports, generally considered to be a form of gambling, is treated in New York as a game of skill. "People just sort of accept that stuff happens the way it does and just go about their business when there is unconstitutional activity," he said.