New York Law Firms Agree With Senators: No Amendment Needed For Mobile Wagering

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NY sports betting

Armed with legal opinions from some of the top law firms in the state, New York Sen. Joseph Addabbo Jr. is making the case that mobile NY sports betting can be authorized without a constitutional amendment.

Backing up the Senate’s inclusion of language to allow online betting hosted from upstate casinos in its budget proposal, Addabbo told Legal Sports Report that he provided the governor’s budget director with a packet of reputable legal opinions.

Read the mobile NY sports betting opinions here:

Is mobile NY sports betting resolved?

The opinions rely on legal precedent to conclude that Gov. Andrew Cuomo is mistaken in his contention that lawmakers can’t move forward without a two-year delay to put a constitutional amendment on mobile NY sports betting before voters.

“The constitutionality issue is closed,” Addabbo said, adding:

“It’s a hurdle we can easily jump over. We have a number of independent law firms that have written briefs on how it would be constitutional. If we take a broad-but-correct interpretation of our current constitution, we can do sports betting in the four casinos with a mobile component.”

NY constitution under the lens

New York’s constitution prohibits any expansion of gambling without an amendment, which requires approval from two consecutive legislatures and a voter referendum. A 2013 amendment permits NY sports betting at the four new upstate casinos but makes no mention of mobile.

Gibson Dunn, however, used just two pieces of legal logic to assert that mobile falls under that previous amendment:

  1. Mobile sports wagering fits comfortably within the contours of “casino gambling,” which the constitution authorizes the legislature to legalize and regulate.
  2. Online sports wagering occurs “at” a casino “facility” because online sports wagers are made at the physical location of the server on which bets are received and accepted.

The firm elaborated that the amendment does not require a “physical presence” and that the legislature is responsible for defining terms and implementing casino gambling.

This was reiterated in the cited case Dalton v. Pataki: “The language of the constitution is not so rigid as to prevent [the] update and modernization …”

The horse racing argument in NY sports betting

Three of the opinions pointed out that New York horse racing law considers a bet to be placed at the location where it is received.

When the 2013 amendment passed, the existing law already permitted bettors to wager remotely by telephone. Regulations issued by the NYS Gaming Commission subsequently codified that “telephone bets shall be deemed to have been made in the county in which the telephone exchange receiving such telephone call bet is located.

The Debevoise & Plimpton memo concluded:

“In other words, the location at which the electronic wager is deemed to occur is the location at which the wager is accepted. Courts would likely apply the same principle to mobile sports wagering.”

Addabbo concurs.

“The server is where the wager takes place, very similarly to our horse racing when done on wires,” he said. “I could be in my home county of Queens placing a bet on a mobile app, and it would mean nothing until the server accepts it.”