Gambling and the Law®: By Professor I Nelson Rose

Sometime soon, the Supreme Court of the state of Washington will decide whether gambling is not gambling, if the loser is not required to pay the winner.

Washington, remember, is the state that makes it a felony to merely play poker on the Internet.

But, in February 2009, the Court of Appeals ruled in favor of Betcha.com, that its unique rules made its Internet betting services not “gambling” under Washington state law.

The case started in 2004, when Nick Jenkins came up with the idea for Betcha.com.

Here’s how the Court of Appeals described it:  “Betcha.com is the creation of its founder and CEO Nicholas Jenkins.  Jenkins conceived the honor-based betting model in 2004, and launched the site three years later after he researched its feasibility under Washington law and consulted a gambling law expert.”

I think that gambling law expert was me.

Nick and I exchanged lots of emails and phone calls, although I never gave him a formal legal opinion.  Nick was a lawyer, having practiced with one of the leading law firms in Los Angeles.  So he was able to do a lot of the legal research himself.
Still, it took him three years to get Betcha.com off the ground.

And then it only flew for a month.

Betcha.com opened its website to the public on June 8, 2007.   Two weeks later, agents from the Washington State Gambling Commission visited Nick in his Seattle office.  The Commission had concluded that Betcha.com was engaged in “illegal professional gambling” and they told him to stop all operations, return all fees it had collected from its customers, and get legal counsel.  Two weeks later, the Commission served Nick with a formal cease and desist letter.

On July 9, 2007, the Commission raided Betcha.com’s headquarters.  They seized the company’s computers and documents.  Nick notified the commission that he had shut down its website, and filed suit.

Since there were no facts in dispute, there was no need to have a full trial.  So, both Betcha.com and the Commission moved for summary judgment, arguing that they were entitled to win as a matter of law.

Washington state statutes define gambling as “. . . risking something of value upon the outcome of a contest of chance . . . upon an agreement or understanding that the [winner] will receive something of value. . .” if he wins.

But with Betcha.com, winners might not get paid, because losers were not required to pay losing bets.  Over and over again, Betcha.com made it clear that it was an honor system:

Betcha.com is a person-to-person betting platform . . . For legal reasons, betting on Betcha is done on the honor system — bettors who pay build their reputations (called “Honor Ratings”), bettors who don’t may find it tough to get action in the future.

The FAQ page included the question: “What if the person I’m betting against doesn’t pay?”  The Answer: “you are basically out of luck.”  “A losing bettor can decide that, for whatever reason, he just doesn’t want to pay.”

Betcha.com argued “there can be no understanding that a bettor will receive something of value where the website stresses that all bets are non-binding.”  The Court of Appeals agreed.

The Commission argued the definition of gambling, that the winner “will receive something of value,” simply meant it happens after the bet was decided.  The Court of Appeals said, this was a possibility, but Betcha.com still wins.
Criminal statutes have to give notice to everyone of what acts are forbidden.  This means words have to be easily understood, and not just by lawyers and writers of dictionaries.  If a word or sentence can be read two different ways, then the court is required to construe the language in the way that will favor the criminal defendant.  This is known as the rule of lenity.

The Commission won in the trial court.  The good news for Betcha.com is that it won on appeal.  The bad news is the Commission has appealed the case to the Washington Supreme Court, which agreed in September to hear the appeal.  
But at least for now Betcha.com has won, proving that words, and laws, do matter.

© Copyright 2010.  Professor I Nelson Rose is recognized as one of the world’s leading experts on gambling law and is a consultant and expert witness for players, governments and industry.  His latest books, Internet Gaming Law (2nd edition recently published) Blackjack and the Law and Gaming Law: Cases and Materials, are available through his website, www.GamblingAndTheLaw.com.

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