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Sen. John Eklund, a lawyer for nearly 40 years, is tired of hearing arguments that the Ohio Casino Control Commission (CCC) could not legally regulate sports wagering but the Ohio Lottery Commission (OLC) could.
That is the narrative being pushed by House lawmakers led by Rep. Dave Greenspan. Eklund admits that it has played a part in S 111 not having any momentum in the first half of the Ohio legislative session. It hasn’t even been assigned to a committee.
“I think part of the reason it has been slow to move on the Senate side has been because of some lingering and, in my opinion, unjustified concerns over the extent of which the Ohio Constitution would permit the Casino Commission to regulate this activity.
“I have argued that point publicly, privately and six ways to Sunday. I’m not just talking through my hat. I’ve researched it, read cases, and I certainly know enough about the constitution of Ohio.”
The argument against the CCC overseeing OH sports betting revolves around the old argument about whether wagering on sports is a casino game. Greenspan has an opinion from the Legislative Service Commission that indicates, under the Ohio Constitution, it is not.
“Nothing in the Ohio Constitution says the Casino Control Commission may not regulate sports gaming,” Eklund said. “Nothing. If they want to take that tact, which I think is wrongheaded, I could make the equally wrongheaded argument that the Constitution doesn’t authorize the Lottery Commission to regulate sports gaming. A lot of this is trying to interpret words to get a particular result.”
Greenspan contends that for Ohio sports betting to be considered a casino game under the state constitution, it is required to be classified as such by Michigan, West Virginia, Indiana or Pennsylvania.
While those states might not officially label sports betting a casino game, all either have or are pursuing authorizing sports wagering at casinos.
Eklund’s argument for the legality of the CCC regulated sports wagering centers on three points:
“This is not even much of an interpretation,” Eklund said. “It’s just a careful reading of the constitution.”
If the House wants to attempt a narrow interpretation of the constitution as it relates to what the CCC can regulate, Eklund points out that the same can be done for the Lottery Commission.
“The constitution says the general assembly may authorize a commission of the state to operate lotteries,” Eklund said. “Where does that say the Lottery Commission has the authority to regulate sports gaming? It has the authority to conduct the lottery. It doesn’t have the authority under the constitution to regulate anything.”
Eklund is careful to point out that he isn’t saying that the Lottery Commission can’t oversee sports betting, just that it shouldn’t.
“My conclusion on the constitutional side is, just as there’s no prohibition from the Casino Control Commission regulating sports wagering, I don’t think there’s any constitutional prohibition on the lottery commission regulating it either. I’m not saying the Lottery Commission cannot be allowed to regulate sports gaming, but I’m saying it’s not well suited to do so.”
While the Senate plan has lacked momentum all session, Gov. Mike DeWine gave it a boost late in May by letting legislative leaders know he supports the CCC as Ohio sports betting regulator over the Lottery Commission.
“I don’t think the governor, who has had quite a noted career as a lawyer and prosecutor who deals with constitutional issues all the time, would come out in favor of the Casino Control Commission as regulator if it were unconstitutional. The fact the governor has come out and said he likes the Senate side suggests to me that he’s looking at this with an objective, thoughtful, lawyerly eye and reaching the same conclusion I’ve been espousing for some time.”
Most importantly, the governor weighed in on the topic bodes well for his likelihood of signing a sports betting bill with the CCC as the regulator. Legislators will have some convincing to do to get him to sign a bill with the Lottery Commission.
As president of the National Council of Legislators for Gaming States (NCLGS), Sen. William Coley has spent more time learning about the issue of sports betting than any other Ohio lawmaker.
Interviewed by Legal Sports Report at the NCLGS summer meeting in Minneapolis this month, Coley indicated that he didn’t think the CCC had the money to regulate sports betting in Ohio, nor could it raise the money because of constitutional limitations.
Eklund counters that he spoke with the leadership of the CCC and they have every confidence that they have the resources to regulate Ohio sports betting.
As for how the commission could raise money to regulate sports betting, it comes back around to the casino-game designation, but this time Eklund is taking the other side.
The constitution establishes a 33% tax on gross casino revenue and stipulates that no other casino gaming-related fees or taxes may be levied. Eklund contends that this does not apply to sports betting because the Ohio constitution defines casino gaming as slot-machine or table-game wagering.
All the Ohio sports betting action is expected to remain in the House when the legislature returns from recess in the first week of September.
With the Ohio legislative session going until the end of the year, Eklund contends that the Senate is in no rush and will wait to see what the House does on the issue.
“If the House bill comes over in the right form, I’ve got no pride of authorship,” Eklund said. “Hopefully we’ll deal with it promptly and not have to worry about the Senate version. But if the House sends over something inappropriate, I’ll urge the Senate leadership to get the Senate bill assigned and let’s get at it.”
House Speaker Larry Householder responded to the governor’s comments by reaffirming that he supports the Lottery Commission as the regulator and has doubts on the CCC’s constitutional authority to regulate OH sports betting.