- The Massachusetts Gaming Commission held an adjudicatory hearing for Penn Sports Interactive this afternoon
- The commission held the hearing on a discontinued Barstool Sportsbook promo called the “Can’t Lose Parlay”
- Representatives for Penn Sports Interactive believe “no reasonable person” could believe the bet holds no risk
It’s a question that philosophers have been debating since the dawn of time…is it possible for a sports betting personality to be so bad at sports betting that a “Can’t Lose Parlay” promo should automatically be considered satire?
The Massachusetts Gaming Commission (MGC) tried to determine just that this afternoon, as attorneys for Penn Sports Interactive argued that a discontinued Barstool Sportsbook “Can’t Lose Parlay” promotion was clearly satirical and did not convey “no risk” to customers who wagered on the promotion.
Is “Can’t Lose” Language Deceptive?
The MGC heard testimony during an adjudicatory hearing for nearly two hours this afternoon from PENN Sports Interactive attorneys to determine if the Barstool Sportsbook promotion’s language violated the Massachusetts sports betting and marketing regulations.
As is the case with any adjudicatory hearing, the MGC did not publicly release a final determination. It will release a written ruling at a later date.
The promotion in question is a now discontinued promo from Barstool Sports personality Dan “Big Cat” Katz. Named the “Can’t Lose Parlay,” the promo began in 2019 and typically featured boosted parlays of three-to-four legs promoted by the popular sports media personality on social media and the Barstool Sportsbook app.
According to MCG Investigations Enforcement Bureau attorney Zachary Mercer, the IEB became aware of the “Can’t Lose Parlay” promotion on March 12, 2023, after Chris Soriano, PENN VP and Chief Compliance Officer at Penn National Gaming, self-reported the promo.
PENN voluntarily halted the promotion on March 13 and has not offered it since. Soriano said the company will issue a written order to permanently discontinue the promo from here on out.
Mercer said the “Can’t Lose Parlay” in question included four men’s NCAA basketball games played on March 10, 2023.
Through the IEB’s investigation it was found that the promo may violate regulations “which prohibits not only unfair or deceptive branding, marketing, advertising, but also those that would reasonably expected to confuse or mislead patrons in order to induce them to engage in sports wagering.”
Representatives also believed the promo may have violated state regulation that prohibits “anything that would imply or promote that sports betting is free of risk in general, or in connection with a particular promotion or sports wagering offer.”
Is a Bad Gambler’s “Can’t Lose” Promotion Considered Satire?
In what would largely become the theme of the hearing, Penn Sports Interactive attorney Jonathan M. Albano argued that “no reasonable person” could see such a long-shot parlay and believe they were participating in a “no-risk bet.”
The “Can’t Lose Parlay” would typically include three or four games that a bettor would need to get right to win the promotion, he said. The title of the promo plays on the fact that Dan “Big Cat” Katz is not a successful gambler.
“The Can’t Lose Parlay is a humorous, satirical reference to Mr. Dan Katz’s reputation as an awful bettor…he has said he’s a ‘terrible, terrible gambler.’ A ‘loser who doesn’t win at gambling’ and that ‘nobody should ever listen to his advice.'” Albano said.
It’s the same legal standard that applies to signs advertising for things like “the world’s best pizza” or buffalo wings for sale that “don’t include any buffalo meat,” Albano argued.
“No reasonable member of the public would hold that Captain Crunch Berries are actually made of berries or that Fruit Loops are actually made of fruit. The point I’m trying to convey here, viewed in context no reasonable person would view the CLP as a risk-free or reduced risk wager,” he said.
The promo was featured in 15 separate jurisdictions before going live in Massachusetts in March 2023. No complaints were levied in those jurisdictions from regulators or from customers, Albano told the MGC.
Consumer date showed as of March 2023 that there were 122,428 unique CLP players, with 55% of those unique players were repeat bettors, and of those repeat bettors 90% had lost their first bet, he said.
“That I would suggest is compelling evidence that bettors who had hypothetically thought this was a sure thing and lost, surely 90% wouldn’t have come back for a repeat bet,” he said.
Commissioner Eileen O’Brien did not agree with this line of reasoning, saying it could just as easily show that 90% of bettors were “chasing their losses.”
Need to Protect Those Not in on Joke
Despite the argument that the promo was satire and most Barstool bettors were in on the joke, Commissioner Brad Hill said it’s the regulatory body’s duty to protect the 10% of the population who may not know the historic background of the promotion and who may just bet on the parlay because they see Katz doing so.
If a customer has never heard of Katz or doesn’t understand the irony of the promotion, Commissioner Jordan Maynard said it’s the MGC’s duty to ensure that every Massachusetts sports betting customer clearly and precisely understands the promotions they’re betting on.
“I’m worried about the one person who doesn’t understand the irony, who has never heard of Big Cat, who is perhaps on the app for five minutes, sees the words, and places the bet. That’s who I’m trying to account for.”
O’Brien also expressed her concerns over Barstool personality Dave Portnoy tweeting out the ticket to his Twitter followers of a bet he made on the March 10 CLP for $13,458.70. How is this not a clear promotion of a Barstool personality advocating for the “risk free” nature of the promotion, she asked.
Albano said every factual assertion in the tweet from Portnoy was true and contained the necessary responsible gaming language for the promo.
“Anyone was was interested in the parlay who saw the tweet would have had to go to the Barstool Sportsbook and see the odds of the parlay,” he said.
The MGC will issue a written ruling on the adjudicatory hearing at a later date.