If at first you don’t succeed…you know how it goes. Such is the case in the New York state legislature, where for the third consecutive year, a bill which would legalize and regulate online poker has made it through the Senate Racing, Gaming, and Wagering Committee. S3898 passed easily by a 10-1 vote and now moves on to the Senate Finance Committee.
There was significant movement with the bill last year, as it not only made it out of the Racing, Gaming, and Wagering Committee, but also the Finance Committee and then passed a vote of the full Senate in mid-June. Despite having half the year to get through the Assembly, it never even made it out of committee there. And it’s not even that it lost a vote; the Assembly really just didn’t bother with it.
One would think that it would move fairly quickly this time, as it is the same bill as last year. It was introduced around this time in 2017, getting through the first committee and reported to Finance in mid-February. Now, I don’t know what Senate schedules look like and there are certainly more pressing issues in Albany, New York than online poker, but it wouldn’t be difficult to envision lawmakers shuttling S3898 through the process in a hurry to get it over to the Assembly with as much time left in the year as possible.
Most of the bill is standard fare, but shortly before the full Senate vote last year, the dreaded “bad actor” clause was added. This type of clause, which has been seen in other online poker legislation, punishes operators who continued to accept U.S. players after the Unlawful Internet Gambling Enforcement Act was passed in 2006. Some bad actor clauses outright ban these operators, while others delay their licensing application or assess fines.
The bad actor clause in the New York legislation says that, among others, this factor may be looked like by the New York Gaming Commission when evaluating the suitability of an applicant:
(f) Whether the applicant:
(i) has at any time, either directly, or through another person whom it owned, in whole or in significant part, or controlled:
(A) knowingly and willfully accepted or made available wagers on interactive gaming (including poker) from persons located in the United States after December thirty-first, two thousand six, unless such wager were affirmatively authorized by law of the United States or of each state in which persons making such wagers were located; or
(B) knowingly facilitated or otherwise provided services with respect to interactive gaming (including poker) involving persons located in the United States for a person described in clause (A) of this subparagraph and acted with knowledge of the fact that such wagers or interactive gaming involved persons located in the United States; or
(ii) has purchased or acquired, directly or indirectly, in whole or in significant part, a person described in subparagraph (i) of this paragraph or will use that person or a covered asset in connection with interactive gaming licensed pursuant to this article.
It does not appear that this bad actor clause is of the strictest variety, as it does not say that such an operator would be automatically deemed ineligible to receive an online gaming license. Rather, an operators actions after the UIGEA should be considered by the Commission.