GPWA Times Magazine - Issue 33 - October 2015

Nov. 1, outside of those sites losing their ability to obtain a New Jersey affiliate li- cense in the future. In a mid-August phone interview with the GPWA, gaming attorney Martin Owens noted a 1998 Supreme Court de- cision in Greater New Orleans Broadcasting Association v. United States , which ruled it is legal to advertise gambling as long as the gambling is lawful in the place where it is offered. “The fact of the matter is that state law is not supposed to operate, in most cases, outside the boundaries of the state; so New Jersey’s options, as far as getting tough with (an affiliate), are pretty lim- ited,” said Owens, who has specialized in online gaming law since 1998. Owens said an affiliate may be in trouble if it were to provide a notarized certifica- tion to the DGE but continue to promote unregulated sites. The extent of that pun- ishment remains unclear, however. “There is a lot of precedent to show that affiliates who submit a certification would therefore be under the jurisdiction of New Jersey’s laws,” Owens said. “But it depends very much on how much New Jersey wants to crack down. If you’re talk- ing criminal penalties, New Jersey hasn’t specified any consequences yet.” Affiliates making good money promot- ing U.S.-facing sites may decide to ignore the DGE’s memo and continue with busi- ness as usual. One consideration for those affiliates, however, is determining how they might be perceived by larger states with bigger markets – like California and Pennsylvania – if those states end up regulating online gambling. Those states could decide to invoke a “bad ac- tor” clause on affiliates who ignored New Jersey’s memo, for instance. At the same time, it might not be worth it for affiliates to wait on U.S. states to regu- late online gambling and set up their own affiliate marketplaces. “Here’s the dirty little secret about California,” Owens said. “If the gover- nor signed an online poker bill into law tomorrow, it would still take about two years, based on estimates I’ve heard from several sources, for the state’s Gambling Control Commission to generate guide- lines, regulations and standards.” “An affiliate should look at the U.S. and realize that every time they want to pro- mote sites in a regulated market, they will have to go through a licensing process,” Owens continued. “That means back- ground checks, fees, investigations, appli- cations. It’s a lot.” Promoting regulated sites in New Jersey, for now, might not be worth the time, ef- fort and, most importantly, the opportu- nity cost. Analysis provided by Martin Owens should not be considered legal advice for any particular party. If you have questions regarding gaming law, be sure to consult a qualified professional. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Dan Podheiser is the editor of the GPWA Times Magazine . He has followed the online poker industry for more than a decade, played on U.S.-friendly sites prior to Black Friday and plans regular trips to visit his parents to play on regulated sites in New Jersey. Follow him on Twitter @danpodheiser. There is a lot of precedent to show that affiliates who submit a certification would therefore be under the jurisdiction of New Jersey’s laws . . . If you’re talking criminal penalties, New Jersey hasn’t specified any consequences yet.” — Martin Owens 28 New Jersey affiliates can no longer have it both ways