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Gambling and the Law®: New York 'Anti's' Blow It

N.Y. 'Anti's' Blow It

By I. Nelson Rose

WagerWeb.com Contributing Writer

The opponents of legal gambling, the "anti's," in New York were given a once-in-a-lifetime opportunity to outlaw the forms of betting they hate most. They managed to get their case heard by the highest court in the state. And they blew it -- big-time.

Any decent gaming lawyer could have won their case in less than five minutes.

The two main legal issues were whether the state could enter into compacts to allow tribes to open casinos and whether tracks could get a decent share of the revenues of Video Lottery Terminals (VLTs). Many, if not all, of the state's racetracks would have to eventually close if they could not install gaming devices.

The anti's big mistake can be found in a footnote, number 4:

"... there is a conflict in the interpretation of IGRA -- whether a state must negotiate with tribes concerning all forms of Class III gaming when it allows any type of Class III gaming, or whether it must only negotiate for the specific games permitted in the state. We do not address this issue as the plaintiffs have challenged the authority to enter into tribal-state compacts in general, rather than the authority to negotiate for particular games."

Anyone who knows anything about Indian gaming knows:

1) Congress passed a statute called the Indian Gaming Regulatory Act ("IGRA");

2) IGRA divides all gaming into three classes; and

3) Tribes can offer Class III games only if that form of gambling is permitted in the state and there is a tribal-state compact.

Somehow, the lawyers for the anti's missed the point. They argued that the state did not have the authority to enter into compacts at all.

The anti's went on and on about the state's public policy against "commercial casinos." But the proper legal response is, "Who cares?"

The U.S. Supreme Court held that the only public policy issue on whether a tribe can operate a form of gaming is whether the state permits it for non-Indians. If a state allows charities to run bingo games, it shows that the state does not have a public policy against gambling in general and bingo in particular. And tribes can then open high-stakes commercial bingo halls.

The anti's based their entire case on the theory that the state does not have the power to enter into compacts. So, the only question is whether the state permits any form of Class III gaming.

Now, let's see: Does New York state law permit any form of Class III gambling? Is it possible the anti's did not know that New York has a state lottery, parimutuel betting on horse races and charity casino table games like roulette -- all Class III?

The amazing thing is that all the anti's had to do was ask the right question -- Does New York state permit slot machines? The answer is clearly, "No."

But this would have required conceding that tribes could have some forms of Class III gaming, including those casino table games.

The tracks were as lucky as the tribes.

Here's how the Court found video Keno to be a lottery, even though lotteries require "multiple participation:": "players compete against one another for prizes ... by choosing a series of keno numbers, colors or symbols from a finite pool in the hope that they, as opposed to other players, will have matched those colors, numbers or symbols later drawn ..."

It's clear that the justices never played keno.

New York judges know how much the state needs gaming revenue.

With a Court this much on the side of more gambling, the anti's might have lost anyway, even if they had known what they were doing.

© Copyright 2006. Professor I Nelson Rose is recognized as one of the world's leading authorities on gambling law. His latest books, Gaming Law: Cases and Materials and Internet Gaming Law, are available through his website, www.GamblingAndTheLaw.com

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