Introduction 844 I. Legal Background on the 847 Mobile Sports Gambling Industry A. A Brief History of Gambling in the United States 848 B. Federal, State, and Case Law on Sports Gambling 851 1. Wire Act, Travel Act, and Illegal Gambling Business Act 852 2. Professional and Amateur Sports Protection Act 853 3. Unlawful Internet Gambling Enforcement Act 854 4. Murphy v. NCAA 856 5. Post-Murphy Tristate Area Sports Gambling Laws 857 II. Mobile Sports Gambling Unprecedented Accessibility to a Life- Altering Vice 859 A. Dual-Pronged Addiction: Problem Gambling and Cell Phone Usage 860 1. Problem Gambling in the United States 861 2. Mobile Device Usage and Sports Betting Apps in the United States 864 B. Current Market Landscape of Mobile Sports Gambling 865 1. Sports Gambling in the States Since Murphy 866 2. Lurking in the Shadows--The Robust Illegal Sports Betting Market 869 3. Sports Gambling Today--From Las Vegas to Anytown, USA 870 C. Gambling's Impact on Low-Income, Minority, and Younger Communities 871 1. Low-Income and Minority Communities 871 2. Young People 874 D. Addendum on the Quiet Native American Impact 876 III. Combatting Problem Gambling Proposals for Limiting Addiction and Losses 877 A. Starting with the States--Regulation and Education 878 B. Taking Notes from the British System of Gambling Regulation 881 C. Adjusting Licensing Requirements and Opening the Market 885 D. Ginsburg's Murphy Dissent--Federal Regulation Through a Truncated PASPA 887 E. Federal Dollars for Problem Gambling Research and Treatment 889 F. Limits on Advertising, Promotions, and Betting Options 889 1. Advertising 890 2. Promotions 892 3. Betting Options 893 G. Legislation and Activity Current in Progress 894 Conclusion 895
"Eat your betting money, but don't bet your eating money."--Unknown
INTRODUCTION
In the 1970s, Ace Rothstein, the antihero of Martin Scorsese's Casino and legendary sports gambling oddsmaker, was sent to Las Vegas to run the (fictional) Tangiers Casino for the mafia. (1) During his time out west, he witnessed a radical shift in Las Vegas, from the "Rat Pack" era of the mid-twentieth century to the current "corporate" or "megaresort" era beginning in the 1990s. (2) As the film concludes, Ace laments that "[t]oday [Las Vegas] looks like Disneyland. And while the kids play cardboard pirates, Mommy and Daddy drop the house payments and Junior's college money on the poker slots....Today, it's like checkin' into an airport." (3)
In some ways, things have not changed. The gambling industry still dominates Las Vegas, (4) and patrons continue to lose irresponsible amounts of money in casinos. (5) But Ace's head would spin if he learned not only that Vegas has continued to commodify itself in his pejorative "Disneyland" sense, but that Disney is now literally in the sports betting business. (6)
Further, Ace would marvel at the fact that Las Vegas is no longer the only place to legally gamble on sports. In fact, sports gambling in 2024 is not like "checkin' into an airport"--it is more like checking your email. The rise of mobile sports gambling represents an unprecedented explosion in the accessibility of the vice. (7) The list of states with legal mobile sports gambling grows every year. (8) Today, in much of the country, it only takes a few taps on a phone to access a nearly limitless selection of bets ranging from the National Football League (NFL) to pickleball. (9)
With all its instancy and convenience, the swift adoption of mobile sports gambling has raised critical concerns. The accessibility of sports gambling is key to understanding the present and continuing destructive effects the activity has on society. Namely, sports gambling has a severely detrimental financial impact on low-income, young, and minority communities, who are often living in areas where mobile sports gambling is legalized. (10)
This Note is not just a story of the evolution of law and society in the context of sports gambling. Rather, this Note discusses this evolution at its turbulent intersection with modern technology. Tackling mobile sports gambling requires a dissection of the phrase, recognizing issues of addiction related to both the mobile aspect as well as the sports gambling aspect. The widespread adoption of legalized sports gambling by states would certainly not have had the same robust and immediate impact on communities without the ubiquity and pervasiveness of mobile phones. (11) When it comes to vices like drugs, alcohol, and gambling, accessibility is everything--it is the lifeblood of addiction. When all it takes is a few quick taps on an iPhone to allocate money that should be used for paying rent to a bet that the New York Jets will win by more than three points next Sunday, it may be time to evaluate the system in which that is possible.
As the Supreme Court acknowledged when it effectively legalized sports gambling, opponents of their decision "contend that legalizing sports gambling will hook the young on gambling, encourage people of modest means to squander their savings and earnings, and corrupt professional and college sports." (12) To protect young people and low-income communities from great financial peril, it is due time the proper tools are put into place to address these contentions.
Part I of this Note provides a legal and historical background of mobile sports gambling. More specifically, Section I.A expounds on the history of gambling in the United States, (13) while Section I.B focuses on critical pieces of federal, state, and case law relating to gambling. (14)
Part II tackles the greatest issue with mobile sports gambling--the unprecedented accessibility via mobile applications. (15) Section II.A assesses the consequent dual-pronged addiction involving both gambling and cell phone usage created by this accessibility. (16) Whereas for much of its history legal sports gambling had been confined solely to Nevada, today all it takes is a few seconds to legally place a bet in a majority of the nation. (17) Section II.B outlines the current market for mobile sports gambling, including the illegal market and the recent expansion to mobile accessibility. (18) Section II.C discusses the impact of gambling on low-income, minority, and young communities, while Section II.D provides a brief glimpse into the effect the modern sports gambling regime has had on the Native American community more specifically. (19)
Part III assesses potential solutions and proposals to the looming threat of increased gambling addiction bolstered by increased accessibility. (20) Section III.A discusses potential state regulation, Section III.B proposes adopting pieces from the British regulatory regime, and Section III.C considers adjustments to the licensing system and opening up the market. (21) Sections III.D and III.E recommend salvaging federal law and providing federal funding, respectively. (22) Section III.F suggests limits on advertising and promotions for mobile sports gambling, and Section III.G provides an addendum on proposed legislation and steps currently being taken to address gambling addiction in the modern mobile era. (23)
I. LEGAL BACKGROUND ON THE MOBILE SPORTS GAMBLING INDUSTRY
Part I of this Note provides a brief cultural and legal history of gambling in the United States. Section I.A provides historical information on the activity, while Section I.B discusses individual legislation and cases. More specifically, Section I.B.1 covers legislation including the Interstate Wire Act (Wire Act), Section I.B.2 discusses the Professional and Amateur Sports Protection Act (PASPA), and Section I.B.3 explores the Unlawful Internet Gambling Enforcement Act (UIGEA). (24) Section I.B.4 examines the seismic shift in the sports gambling landscape caused by the United States Supreme Court's decision in Murphy v. National Collegiate Athletic Association. (25)
A. A Brief History of Gambling in the United States
Gambling, defined as the "practice of risking money or other stakes in a game or bet," (26) has deep roots in the history of the United States. (27) In fact, the activity far precedes the nation's founding, with lotteries, or "an event or affair whose outcome is or seems to be determined by chance," (28) established to raise revenues for the earliest American colonies. (29)
Lotteries, however, soon gave way to betting on horseracing, the earliest and most prominent example of sports betting in America. (30) Popularized in England as far back as the 1600s, horseracing rose to prominence in the United States in the nineteenth century. (31) Following the United States Civil War and into the latter half of the nineteenth century, racetracks began to create formal betting systems to increase patronage to the races. (32) Since wealthy families primarily owned the horses, gambling became a means for middle and lower-income individuals to become involved in the sport, catering to those with a "futile hope of quick and easy riches through gambling." (33)
While horseracing persisted legally, other methods of gambling, most notably lotteries, were soon rooted out and prohibited through both federal and state law. (34) In 1890, Congress passed a law banning the distribution of lottery materials through the United States Postal Service. (35) Five years later, Congress utilized its authority under the Commerce Clause to prohibit interstate transmission of lottery-related materials. (36) The constitutionality of the 1890 and 1895 laws, challenged on the basis of states' rights, was upheld by the Supreme Court in In re Rapier and Champion v. Ames, respectively. (37) It was not until 1964 that legal state lotteries returned, when New Hampshire relaunched their state-run lottery. (38)
All the while, other types of gambling, and more specifically sports gambling, operated in a technically illegal but generally underenforced gray area. (39) Sports gambling was popular but unregulated...
