Sports Betting Advertising Ban Draws Criticism From Massachusetts Teams

Massachusetts pro sports teams joined broadcasters and sportsbook operators in asking lawmakers to not include an advertising ban in sports betting legislation.

In a letter to members of the conference committee on Massachusetts sports betting, the teams requested lawmakers “reject the Senate’s proposed complete ban on advertising during game telecasts, as well as several other ad restrictions included in the Senate bill.”

David Friedman, executive vice president of legal and government affairs for the Boston Red Sox, provided Play MA a copy of the letter after mentioning the opposition to the advertising ban Sunday during the National Council of Legislators from Gaming States conference in Boston.

The Senate included the in-game advertising ban when it passed sports betting language in May.

The letter reads:

“These unprecedented ad restrictions are impractical, unnecessary, and unduly burdensome, and they are also unconstitutional. No other jurisdiction has taken such measures, which would have the unintended effect of undermining the legal sports betting market and enabling illegal operators to continue to attract customers in Massachusetts.”

Massachusetts lawmakers must act on sports betting legislation by July 31.

Teams call advertising ban unconstitutional

The teams urged the conference committee to reject three ad restrictions included in the Senate bill. Here are the restrictions and the rebuttal from the teams:

• A ban on advertising on television during the live broadcast or online streaming of a sporting event, to the extent practicable, including the period beginning 5 minutes before the start of the sporting event and ending 5 minutes after the end of the sporting event.

“No other state bans all sports betting advertising during game broadcasts. This overbroad and unduly burdensome measure would violate the First Amendment. To the extent that it is designed to prevent minors and people with gambling problems from betting on sports, it is not narrowly tailored to achieve those goals and it places a major burden on protected speech.”

• A ban on advertising, marketing and branding by means of television, radio or internet, to the extent practicable, unless at least 85 per cent of the audience is reasonably expected to be 21 years of age or older, as determined by reliable, up-to-date audience composition data.

“The notion that there is ‘reliable, up-to-date audience composition data’ measuring the age of individuals consuming modern forms of digital content is just not accurate. Any serious attempts to enforce this provision would likely result in protracted disputes about the reliability of relevant data as applied to the immediate situation.”

• A ban on any form of advertising, marketing or branding that is determined by the commission to disrupt the ability of a viewer, at a sporting event or remotely, to watch, listen to or otherwise experience a sporting event.

“This ad restriction is completely vague, entirely subjective, and impossible to implement. How would the Gaming Commission determine whether a particular type of ad disrupts a viewer?”

Who sent the MA sports betting letter and to whom?

The letter, dated May 25, is addressed to the six conference committee members:

• Sens. Michael Rodrigues, Eric Lesser and Patrick O’Connor
• Reps. Aaron Michlewitz, Jerald Parisella and David Muradian

Gov. Charlie Baker, Senate President Karen Spilka and House Speaker Ron Mariano were CC’d.

Massachusetts’ five professional sports teams and the PGA Tour put their names on the letter:

• Charlie Jacobs, CEO, Boston Bruins (NHL)
• Rich Gotham, president, Boston Celtics (NBA)
• Sam Kennedy, president and CEO, Boston Red Sox (MLB)
• Jonathan Kraft, president, New England Patriots (NFL)
• Brian Bilello, president, New England Revolution (MLS)
• Leonard Brown Jr, chief legal officer, PGA Tour

Senate reasoning behind advertising ban

Rodrigues, the Senate chair for the conference committee, was behind adding the advertising ban.

On the Senate floor, Rodrigues said the ban was an attempt to keep those under the legal sports betting age of 21 from seeing the commercials.

“The bill institutes a whistle-to-whistle ban on television advertising similar to what they do in Europe. This bill limits advertising on television and online, where less than 85% of the audience is 21 years old or older, similar to what we do in the cannabis legislation.”

In the letter, teams countered with:

“To be clear, we agree that underage gambling and problem gambling are serious matters. But league policies and other provisions in the House and Senate bills – provisions we support – can directly address these concerns without infringing on protected speech or creating impossible administrative hurdles.”

The teams point to language in the House bill as reasonable measures for advertising guidelines.

Two members of the conference committee, O’Connor and Parisella, spoke previously to Play MA  against the advertising ban.

Advertising is legal operator’s edge over black market

Teams contend preventing sports betting operators from advertising during games undermines the primary goal of legalized sports betting. That is to steer customers away from illegal offshore sportsbooks and toward legal, regulated operators.

“TV advertising is often a regulated sportsbook’s biggest competitive advantage over offshore operators that are forced to focus their marketing efforts on less regulated channels,” the teams wrote. “While it is understandable that some may be concerned with potential oversaturation of sports betting ads during games, a complete ban during game broadcasts would do more harm than good.”

The ban, they said, also appears to preclude responsible gambling messages during games. Sports leagues incentivize operators to offer responsible-gambling focused advertisements, according to the letter.

Ban could hurt TV deals for teams

Teams also believe an advertising ban would hurt their revenue, regardless of whether they directly participate in sports wagering. (Sports teams also asked for “preferential treatment” toward sports betting licenses in the letter.)

Freidman told Play MA an advertising ban could lessen the amount of money teams get from broadcasting deals. Broadcasters also are lobbying against the ban.

“I think it would be very bad for the industry to get off the ground,” Friedman said. “It detracts from the value of TV broadcast rights. I don’t think it’s intended to hurt teams, but it hurts teams more than others. And I think it’s unconstitutional, too.”