March 2019

Click cover image to download full 32-page issue (3.5 MB PDF file). Cover photo courtesy of Elliott Lund, AGS LLC

View select content from the “Gaming Law” issue of COMMUNIQUÉ (March 2019), the official publication of the Clark County Bar Association:

In the full, color, printed edition, readers may find a variety of practical content, including these special features:

  • “It’s 2019: Work Hard and Play Hard” By Clark County Bar President Jason P. Stoffel
  • Summaries from January 2019” by Joe Tommasino, Esq.
  • Pro Bono Corner: Not Your Typical Supreme Court Oral Argument by Emily A. Ellis, Esq.
  • Bar Activities
  • Member Moves
  • Court Changes
  • The Marketplace

Special thanks to the following advertisers for their support of COMMUNIQUÉ (March 2019):

© 2019 The content on this page was originally published in COMMUNIQUÉ*, the official publication of the Clark County Bar Association. (March 2019). All rights reserved. For permission to reprint this content, contact the publisher Clark County Bar Association, 717 S. 8th Street, Las Vegas, NV 89101. Phone: (702) 387-6011.


Sports Betting in America

Natice Locke
Jennifer Roberts, Esq.

By Jennifer Roberts, Esq. & Natice Locke

On February 3, 2019, one of the largest-viewed sporting events in the world was held in Atlanta, Georgia – the National Football League’s Super Bowl LIII. That day, residents within eight states were legally permitted to wager on the outcome of that game. Legislation has been proposed in several other states to allow sports wagering in time for next year’s game. So, why now?

In May 2018, the United States Supreme Court issued the opinion of Murphy v. NCAA. That case declared a 1992 federal law, known as the Professional & Amateur Sports Protection Act (“PASPA”), to be an invalid breach of power into the ability of states and Native American tribes to regulate sports betting. PASPA essentially prohibited state governments from authorizing any form of sports betting, except for a few grandfathered states, including Nevada. Because of PASPA, Nevada held the monopoly on full-scale sports wagering under federal law for over 25 years and has had legal sports wagering since 1949, well prior to PASPA.

Since New Jersey failed to take advantage of its original one-year allowance to legalize sports betting at Atlantic City casinos, in 2011, the state decided to respond to what its citizens demanded through a state-wide referendum – legalization and regulation of sports wagering. In response to legislation to authorize regulations, however, the major sports leagues – NFL, NCAA, NBA, MLB, and NHL, which uniquely held injunctive enforcement powers under PASPA – went to court to stop New Jersey. The leagues were successful up to the Third Circuit Court of Appeals after the U.S. Supreme Court denied certiorari.

New Jersey persisted and, instead of legislation that authorized sports betting, the state decided to repeal its criminal laws against bookmaking within Atlantic City casinos and New Jersey horse racetracks. The same sports leagues went back to court and, this time, the U.S. Supreme Court took the case, which resulted in the Murphy decision. In addition to declaring PASPA invalid, the decision noted that states had authority to legalize and regulate sports betting. The case neither made sports betting legal, nor did it prevent the federal government from regulating sports wagering or making it a federal crime in the future.

For now, states and tribes are left to decide whether to legalize and regulate sports wagering. Nevada continues to offer sports wagering, including on tribal lands, in addition to New Jersey, Pennsylvania, Mississippi (plus tribal), Delaware, West Virginia, New Mexico (tribal only), and Rhode Island.

A few of the primary decisions that states must consider when deciding to legalize and regulate sports betting include:

  1. Which government agency will oversee sports wagering and who will operate it? So far, a few states allow commercial operators governed by state gambling commissions or boards, while others operate through the state lottery. There has also been some interest by horse racing commissions to oversee sports betting.
  2. Will the state permit mobile sports betting? Currently, mobile wagering accounts for more than half of sports wagers in Nevada, and that number is expected to increase. If mobile sports betting is permitted, another question is whether accounts to wager by phone or the internet must be set up in person at a land-based gambling establishment or whether the account can be set up and funded remotely.
  3. How will federal law come into play? Not only is federal legislation to regulate sports wagering still a possibility, as evidenced by the recent Hatch-Schumer sponsored bill (that ultimately stalled), one of the biggest federal impacts on sports wagering is a 1961 criminal law known as the Federal Wire Act. This law was enacted to tackle interstate gambling activities, such as bookmaking, using wire communications. Although the law was passed well before the internet and mobile technology, the law remains in effect and limits the ability to conduct sports wagering across state lines, even between two jurisdictions where it is legal.

There are many key issues for states and tribal jurisdictions to consider when looking at legalizing sports wagering. With regulated sports wagering, a jurisdiction can provide consumer protections, compete with a large illegal market, and capture revenues to benefit residents. By the time Super Bowl LIV is held, there will almost certainly be more than ten states with sports betting. Within the next ten years, there may be legally regulated sports wagering in as many as 30 states.

Jennifer Roberts, Esq. is the Associate Director of the International Center for Gaming Regulation at UNLV. She also owns her own boutique law firm, Roberts Gaming Law, Ltd. Her legal practice focuses on federal, state, and local liquor laws, as well as land use and zoning; business licensing and compliance; and regulatory and administrative law. She teaches gaming law at the William S. Boyd School of Law at UNLV and the S.J. Quinney College of Law at University of Utah.

Natice Locke is a 3L at the William S. Boyd School of Law. She is a Las Vegas native and attended the University of Nevada, Reno for undergrad. Natice worked as a case manager for a treatment foster care agency prior to law school.She is currently on the Nevada Law Journal and looks forward to graduating in May.


Nevada Gaming Control Board Takes A Stand Against Sexual Harassment

Mary Tran, Esq.
Glenn Light, Esq.
Karl Rutledge, Esq.

By Karl Rutledge, Esq.; Glenn Light, Esq.; and Mary Tran, Esq.

In the last several years, there has been a surge in the number of sexual assault victims who have publicly disclosed their stories. Sexual harassment is prevalent across a broad range of industries, including Hollywood, media, hospitality, and healthcare. Emily Stewart, “These Are the Industries With the Most Reported Sexual Harassment Claims”, Vox , November 21, 2017, https://www.vox.com/identities/2017/11/21/16685942/sexual-harassment-industry-service-retail. As such, many industries have been spurred to reexamine their own policies to prevent sexual harassment. The gaming industry is no different.

We have all heard the famous motto about mischief in Las Vegas: “What happens in Vegas, stays in Vegas.” With a city likened to the biblical Sodom and Gomorrah, it is not difficult to imagine that sexual misconduct has made its way into the gaming industry, with offenders being customers, colleagues, and superiors. In fact, Bloomberg explained in a February 11, 2018 article that Nevada “leads the nation in sexual harassment complaints per capita.” See Christie Smythe & Christopher Palmeri, “Steve Wynn Is Out but Las Vegas Is Still a Tough Town for Women”, Bloomberg, February 11, 2018, https://www.bloomberg.com/news/articles/2018-02-11/steve-wynn-may-be-out-but-vegas-is-still-a-tough-town-for-women. This statistic could demonstrate that employees in Nevada are educated about resources available to them. On the other hand, it could demonstrate a need for a stronger stance against sexual harassment.

In a response to these concerns, on April 2, 2018, the Nevada Gaming Control Board (“NGCB”) proposed amendments to Regulation 5 that included a new Regulation 5.250, which requires Nevada gaming licensees to implement comprehensive plans to address sexual harassment prevention. Failure to comply with these proposed amendments could result in disciplinary action. The most recent iteration of the proposed amendment, dated November 5, 2018, requires each licensed gaming establishment or other licensed gaming business to maintain a comprehensive plan and written policies that:

(a) provide procedures and methods available for reporting sexual harassment;
(b) detail the procedures the licensee will follow to investigate reports of harassment;
(c) set forth consequences for a person within the licensee’s organization found to have committed an act of sexual harassment; and
(d) require an annual assessment of the policies to ensure that employees are being effectively educated.

The proposed amendment also allows the NGCB to inspect each licensee’s written policies and procedures at any time, and mandates an annual assessment of each licensee’s policies and procedures to ensure their employees are being effectively educated. The annual assessment would require licensees to disclose the number of sexual harassment claims filed by employees—which could alert the NGCB to a pattern of violence.

To date, the NGCB has held several workshops allowing members of the community to comment or make suggestions to the amendment during public comment. Several prominent members in the community echoed support for NGCB’s effort to enforce a baseline for sexual harassment guidelines, including then Governor Brian Sandoval and Caesars Entertainment Corporation. The Culinary Workers’ Union, Local 226 (the “Union”) added that the amendment was critical towards combatting existing perceptions that reporting harassment was futile. See Geoconda Argüello-Kline, letter to Becky Harris, April 10, 2018. In their remarks, the Union noted that employees in the gaming industry do not just face sexual misconduct from fellow employees or superiors, but also experience a power imbalance when the offender is “a guest who can afford a $450 bottle of vodka or thousands on a hotel suite.” Id. To diminish the feeling that reporting is hopeless, the Union suggested a stronger floor that mandates multilingual training on reporting procedures and multilingual sexual harassment reporting forms to ensure employees can understand the information. Id.

One community member, however, felt that the amendment was “unnecessarily detailed and not entirely consistent with the Board’s general regulatory regime.” See Mac Potter, letter to Becky Harris, October 23, 2018. The individual asserted that the amendment was duplicative, because the NGCB could already threaten license revocation of companies that are not compliant with existing state and federal laws. Id. Moreover, there are existing regulatory bodies that cover these issues—the Equal Employment Opportunity Commission and the Nevada Equal Rights Commission. Id.

However, as many members of the community expressed, Nevada prides itself as the gold standard in gaming regulation. While most gaming companies in Nevada have existing comprehensive sexual harassment policies, the NGCB’s effort to formalize these policies and procedures cements Nevada’s dedication stance against sexual harassment—one that recognizes the inherent dignity in all fellow persons. The proposed amendment not only enhances workplace safety by raising awareness to sexual harassment as a serious issue in the gaming industry, but also prioritizes sexual harassment prevention by providing additional regulatory scrutiny. These sentiments were embodied in the remarks of Ann McGinley, an employment discrimination law professor at the William S. Boyd School of Law, who noted that the annual reporting requirement of valid charges assures that gaming establishments “take their obligations seriously in this area.” See Ann McGinley, letter to Becky Harris November 13, 2018.

On November 14, 2018, the NGCB voted to forward the proposed amendment to the Nevada Gaming Commission (the “NGC”). See Howard Stutz, “Changes to Nevada Regulations Concerning Sexual Harassment Sent to the Gaming Commission After Governor Expresses Support,” CDC Gaming Reports, November 15, 2018, https://www.cdcgamingreports.com/sandoval-backs-changes-to-nevada-gaming-regulations-concerning-sexual-harassment/. The NGC has discretion to place the amendment on its agenda for a vote, but, as of the time of this writing, has yet to place the amendment on its agenda. The proposed amendment’s positive effects could reach well beyond Nevada, as the proposal creates a special opportunity for other gaming jurisdictions to reflect and emulate Nevada’s public policy of maintaining the integrity of the gaming industry and protecting the general welfare of Nevada’s inhabitants.

Karl Rutledge, Esq. is a partner and Chair of the Commercial Gaming Group at Lewis Roca Rothgerber Christie LLP.
Glenn Light, Esq. is a partner in the Commercial Gaming Group at Lewis Roca Rothgerber
Christie LLP.
Mary Tran, Esq. is an associate in the Commercial Gaming Group at Lewis Roca Rothgerber Christie LLP.


EJDC Launches Gambling Treatment Diversion Court: Redemption Before Retribution for Problem Gamblers

By Jason Close, Esq.

Jason A. Close

Diversion court programs are not new to Nevada, although a formal program for problem gambling is a recent welcomed addition. In 1992, the Eighth Judicial District Court (“EJDC”) launched its first specialty court program, the Adult Drug Court. Other EJDC Specialty Court programs have succeeded since then, including Felony DUI and Veterans Courts. These programs are based on a model of rehabilitation, restitution, and accountability, and are shown to reduce related crime by 45 percent compared to traditional sentencing. See http://www.clarkcountycourts.us/departments/specialty-courts/, last viewed February, 1, 2019.

But what about crimes resulting from problem gambling? Untreated problem gambling can lead to convictions for crimes resulting from acts tied to a gambler’s treatable mental health. Nevada, known worldwide for gaming, has until recently lacked a specialty court program to help treatable problem gamblers recover without incarceration. However, in 2009, NRS 485A was amended to give courts authority to “establish a program for the treatment of problem gambling” as an alternative to incarceration. NRS 485A.200.

In late 2018, the EJDC launched its Gambling Treatment Diversion Court (“GTDC”), when Chief Judge Linda Bell appointed Judge Cheryl Moss to preside over the program. See, http://www.clarkcountycourts.us/silver-state-court-aims-to-be-gold-standard-to-address-those-in-the-justice-system-due-to-gambling-issues/, last viewed February 1, 2019. The GTDC allows eligible problem gamblers who complete the program to defer sentencing, set aside conviction, and seal related records. NRS 485A.240; 485A.250. Nevada Revised Statutes 485A.210 sets forth eligibility, including certain non-violent offenders meeting certain non-repeat/concurrent offense requirements. Once approved at a determination hearing, an eligible person is assigned program terms, must pay restitution, and must complete one to three years of supervised treatment in compliance with terms. NRA 485A.220.

For more information, including a GTDC application and contact information, visit the first URL listed in this article.

Jason Close, Esq. is co-chair of the CCBA New Lawyers Committee and is managing attorney at Close Law Group in Henderson.


*About COMMUNIQUÉ

COMMUNIQUÉ is published eleven times per year with an issue published monthly except for July by the Clark County Bar Association, P.O. Box 657, Las Vegas, NV 89125-0657. Phone: (702) 387-6011.

© 2019 Clark County Bar Association (CCBA). All rights reserved. No reproduction of any portion of this issue is allowed without written permission from the publisher. Editorial policy available upon request.

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COMMUNIQUÉ is mailed to all paid members of CCBA, with subscriptions available to non-members for $75.00 per year. For advertising information and editorial policy, please contact Steph Abbott at (702) 387-6011 or stephabbott@clarkcountybar.org.