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Barstool Sports Defends ‘Can’t Lose Parlays’ with First Amendment

Barstool Sports is using the First Amendment of the US Constitution to defend its Can’t Lose Parlay promotion from the long arm of the Massachusetts Gaming Commission. It’s the latest, and most bizarre, chapter in the race to define the parameters of the regulated US sports betting market.

Earlier this year, the Commission questioned the legality of the Can’t Lose Parlay. Phrases like “can’t lose” imply that there is no risk involved with the wager, they said, putting Barstool Sports in violation of gaming regulations.

Barstool, which is owned by Penn Entertainment, refused to take the case lying down and offered a rare (and vigorous) defense of their ads at a hearing earlier this week. Barstool was represented by First Amendment expert Jonathan Albano, who argued that no reasonable person would ever think that any parlay didn’t involve risk, and that the Commission should just back off.

“In context through the eyes of a reasonable consumer, we submit that [when they] saw a parlay that requires a customer to win not one, not two, not three, but four bets, no reasonable person would believe they were engaging in a risk-free activity,” he said in comments reported on MSN.

Albano also went on to suggest that legal protections afforded to products like Crunch Berries (breakfast cereal) – which are not berries – should be given to Can’t Lose Parlays.

Commissioner Eileen O’Brien was entirely unimpressed with the argument. She pointed out that 55 percent of players who took advantage of the offer were repeat bettors, and that 90 percent of them lost on their initial parlays. When Albano pointed out that that meant they knew what they were getting into she shot him down saying, “So, another way to look at that Attorney Albano, was those people are chasing losses, and so to be blunt, I’m not overly persuaded by that piece of information.”

A full report on the Can’t Lose Parlay controversy from the Gaming Commission will be released at a later date.