Barstool Sports, in front of Massachusetts regulators on Wednesday, defended its “Can’t Lose Parlay” promotion as a joke that any “reasonable person” would see as a risk. The remarks came during a regulatory non-compliance hearing stemming from Barstool’s use of the promotion in Massachusetts
The adjudicatory hearing was held to address Barstool’s use of the sports betting promotion on four March 10 NCAA basketball games (Ohio State vs. Michigan State, Indiana vs. Maryland, Alabama-Birmingham vs. North Texas, and Ohio vs. Toledo). Barstool founder David Portnoy’s March 10 tweet of his $13,458 bet slip on the parlay was also reviewed during the hearing.
Massachusetts has strict rules against using any risk-free language on sports betting advertising or marketing.
Barstool parent company Penn Entertainment’s legal counsel Jonathan Albano told the Massachusetts Gaming Commission that “no reasonable person who saw a parlay with longshot odds … would have concluded that they were engaging in a risk-free sure-thing type of bet.”
He added that there were “no regulatory violations” because of what he asserted is clear risk involved in the parlay, which Albano called a “humorous, satirical reference.”
The commission did not issue a decision on Wednesday regarding the allegations of non-compliance against Barstool. MGC Chair Cathy Judd-Stein said the commission will have an opportunity to “privately deliberate and ultimately issue a decision.”
Massachusetts Regs Prohibit Risk-Free Sports Betting Promotions
Massachusetts sports betting operators are prohibited from using language in their marketing “that would reasonably be expected to confuse or mislead patrons in order to induce them to (bet)”, according to March 15 comments made by MGC investigations official Loretta Lillios. Marketing anything as “free of risk in general, or in connection with a particular promotion” is also prohibited under the rules.
Penalties – including license revocation – are possible, depending on how the commission ultimately rules in the matter.
Barstool Acted in ‘Good Faith,’ Penn Claims
No Massachusetts bettors are believed to have wagered on the parlay, and Barstool and its parent company Penn Sports Interactive have discontinued the “Can’t Lose” promotion in the Bay State.
Albano said the promotion has run in up to 15 other states where, he said, there have been no known complaints about its use.
“This commission isn’t bound by what any other regulators do, but … when that Massachusetts ‘Can’t Lose Parlay’ was offered, the licensee (was) free to offer it in 15 jurisdictions. To them, it was significant,” said Albano. He also said Portnoy acted “in good faith” when he tweeted his $13,000-plus betting slip as a promotion.
It was Penn National VP Chris Soriano who initially contacted the MGC about the promotion on March 12. MGC staff said today that Soriano continued talks with the agency on March 13 and that he told the MGC the promotion was no longer being offered in the state.
Soriano, who was present at Wednesday’s hearing, told the commission that Barstool and Penn are willing to sign an order or other documentation specifying that they will not use the “Can’t Lose Parlay” promotion in Massachusetts at any time in the future.
Albano did not contradict Soriano’s comments. He continued, however, to maintain that the “CLP” promotion in Massachusetts on or until March 10 did not constitute regulatory violations or any violation of law, with a focus on protected speech.
“My point is, as someone born and bred in Massachusetts, Massachusetts residents are no less sophisticated, less reasonable, or less able to ascertain that if you have to win four legs of a longshot bet it is not a sure thing,” said Albano.
MGC Commissioners Grill Penn at Hearing
Some unconventional betting analogies surfaced as Massachusetts regulators grilled Penn – specifically on its defense of “can’t lose” language being in compliance with state regulations against risk-free promotion.
Cap’n Crunch’s Crunch Berries made an appearance as Judd-Stein challenged the argument of reasonableness.
“I’m not sure exactly what the legal standard is. But … where is it on the app that says this is not free of risk. That you can – in fact, you are highly likely to lose?,” Judd-Stein asked Albano.
Albano compared a four-leg parlay with long odds to the ingredients on the back of a box of Crunch Berries. People know the “berries” aren’t real, based on the ingredients.
The odds and need to win four legs “are the ingredients on the box,” he said. Judd-Stein didn’t seem convinced.
“Although I love funny, I don’t love funny at anyone’s expense, however,” she said during the exchange with Albano.
Commission to Rule on Other Non-Compliance Matters Soon
The Barstool hearing is the latest in a string of MGC hearings against sports betting operators for potential violations of the Commonwealth’s sports betting rules.
The commission is expected to soon rule on alleged violations self-reported earlier this year by sportsbooks at MGM Springfield, Encore Boston Harbor, and Plainridge Park Casino. Those violations, reported in February, came from bets accepted on in-state college teams outside of tournament play. Sports betting on Massachusetts college teams is allowed in-state only when those teams are engaged in tournament play.
Last month, the MGC announced that DraftKings faces potential penalties for allegedly violating state sports wagering rules after the sportsbook reportedly accepted hundreds of wagers on unapproved tennis matches. The alleged violations were self-reported by DraftKings on March 23.
An adjudicatory hearing for DraftKings has not yet been scheduled.