The iGaming Business Black Friday webinar went off Tuesday morning as advertised, and while there wasn’t much new ground covered, here are a few highlights. First, the panelists (OnGame’s Peter Bertilsson, Catania Gaming Consultants’ Jo Kelly and Gambling Compliance’s Chris Krafcik) were more or less united on the following: (a) no other legal actions were likely to commence before a final determination is made in relation to the current indictment; (b) for the immediate future, the likelihood of progress being made on the US federal legislation front is slim to none.
Some other opinions voiced included the unlikelihood of any of the overseas defendants being extradited to the US, as Hong Kong remains the only jurisdiction with which the US has an extradition treaty specifically related to gambling charges. Assuming any of these indictments ever get to trial, panelists felt that the New York State anti-gambling statutes cited in the indictments would play a key role; specifically, the issue of whether the game of poker depends more on skill v. luck. The issue of proving bank fraud was also called into question, given that the banks involved made millions on these poker-related transactions.
Following the webinar, some North American-based online gaming legal eagles contacted CalvinAyre.com to offer a rebuttal. The first thing they wanted to refute was the notion that the fraud charges won’t stick because the bank profited or because poker is not technically gambling. Such claims have no basis in US law. Regardless of circumstances or motivations, making false statements to a financial institution is a federal crime. End of story.
Secondly, those New York State penal statutes were modified in the 1980’s with the express purpose of making gambling charges easier to stick. The litmus test is no longer whether skill or chance is dominant in a game of poker, backgammon or what have you – all that matters is that chance affects the outcome of the game to a “material degree.” That’s a far lower hurdle to get over, even for soft, flabby government attorneys.
Of course, some of the webinar participants had a definite dog in this hunt. OnGame’s Bertilsson, in particular, was keen to voice the tired meme that the indictments were a necessary corrective to benefit European public companies that had up to then been forced to compete “with one arm tied behind their back.” (Bertilsson neglected to point out that it was the companies themselves that tied that knot via their decision to go public.) Jo Kelly stated that for an online gaming company to be regarded as a ‘reputable’ firm, they needed to be publicly listed. Never mind that even public company über-fanboys eGaming Review rank privately-held Bet365 as the top company in the industry.
We have our own dog in this hunt, so we’re going to let him off the leash for a bit. From where we sit, for a company (in any industry) to be considered ‘reputable,’ it needs a strong brand and the correct legal structure. Specifically for the online gaming industry, that structure needs to be quick and flexible, two things for which private companies have a distinct edge (you know, from having the sense not to tie one of their arms behind their back). And imagining that the US market setbacks experienced by a few private poker companies are proof that being publicly listed is not only good but essential for success can be refuted with a single word: Asia. This is the world’s single biggest market, one completely dominated by private companies and from which public companies are barred from entering — you know, much as they are in the US today.