Inside Asian Gaming

inside asian gaming November 2015 34 make anyone involved with illegal gambling potentially liable under the anti-racketeering laws. These laws were expressly designed to include investors and others involved with OC who like to keep their hands clean. There are three ways a non-actor, like ESPN, could be criminally liable merely for running ads for a business that violates anti- gambling laws. The crime that is often called “the prosecutors’ friend” is conspiracy. Almost all state anti-gambling crimes are mere misdemeanors. But conspiracy to commit a misdemeanor is a felony. Prosecutors only have to prove is that there was an agreement to do an act that violates the law and that one of the co-conspirators took a substantial step toward completing that act. Co-conspirators do not even have to know that what they are agreeing to do is illegal. The second and even more common way for a non-actor to be criminally liable for the actions of another person is accomplice liability. Unlike conspiracy, which is a separate crime, accomplice liability is a theory of liability. Often called aiding and abetting, this is a way to make anyone who helps another commit a crime become guilty of that crime. The get-away driver is guilty of bank robbery, even though he never sets foot in the bank. For DFS, the last and possibly most frightening way for a person to be criminally responsible for the actions of another are special statutes. In the case of gambling, the most important is the federal Illegal Gambling Businesses Act. Congress enacted the IGBA as part of the Organized Crime Control Act. It makes everyone who participates in a business that violates a state anti-gambling law guilty of a major federal felony. The only requirement is that the business has five or more people and does at least US$2,000 in business a day. Arizona, Iowa, Louisiana, Montana and Washington have expressly made fantasy sports illegal. DFS operators say they do not take players from those states, because they know that doing so would be a violation of the IGBA. But there are a dozen other states with anti-bookmaking and other laws on the books which might also apply to DFS. It is possible for an individual to be guilty of multiple crimes under these doctrines. For example, if someone agrees to help an illegal gambling business that has not just five but six other people involved, he can be charged with both conspiracy and the IGBA. And the IGBA opens the door to even worse anti-OC statutes, including RICO, Racketeer Influenced and Corrupt Organizations. RICO allows federal prosecutors to seize all of a defendant’s assets that were derived from OC activities – the so-called “tainted fruit of the poisonous tree.” Plus, of course, potential penalties include many years in prison. Everyone wants to know what is going to happen with DFS. Given this list of horrors, it may be surprising to hear that I am rather optimistic about the operators. The most important reason is money – big money coming from very powerful institutions. Researchers at Princeton and Northwestern universities recently proved what every student of American politics already knew: Big money buys political influence. The professors examined 1,800 separate public policy debates between 1981 and 2002 and compared the preferences of average citizens with those of the wealthiest individuals and largest special interest groups. The results: There was virtually no correlation between what the vast majority of Americans wanted and the actual laws that were enacted; but affluent citizens and powerful special interest groups were able to get legislatures to pass or defeat bills reflecting their positions. Of course, we don’t need to have studies to show how laws are made, or not made. The National Rifle Association was able to prevent Congress from passing a single new gun control law, even those supported by a majority of gun-owners, after the massacre of 20 students and six adults at Sandy Hook Elementary School in 2012. If the mass Gambling and the law “The timing of the $350,000 DraftKings scandal could not have been worse. The Attorneys General of New York and Massachusetts, and apparently of at least three other states, were already investigating whether DFS violated any of their state laws.”