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9 May 2008

Kentucky Derby could be impacted by UIGEA complications


U.S. horse racing companies comfortable with their specially exempted online betting status in US legislation have apparently discovered some inconvenient facets of the Unlawful Internet Gambling Enforcement Act which has so effectively reduced competition by offshore firms.

The Boston Herald quotes gaming and banking industry experts as saying that horse racing fans looking to place online bets for the 134th Kentucky Derby this weekend may find their transactions blocked by banks and credit card companies trying to avoid running afoul of unclear federal regulations.

"Unless the government takes the responsibility of telling the banks which merchants they shouldn’t deal with, and when banks take the position that they are not going to process these transactions without guidance, all heck will break loose," said Tony Cabot, an attorney with the Las Vegas firm Lewis and Roca, which represents the Nevada Pari-Mutuel Association.

The Herald notes that advocates for the banking and online gambling industries, legal scholars and several members of Congress are pushing the U.S. Treasury, the Federal Reserve and the Justice Department to clarify whether a regulatory exemption in the Unlawful Internet Gaming Enforcement Act that allows Internet gambling on horse racing could also mean that banks and credit card companies would be penalised for processing the money from those wagers.

Under the law, passed in 2006 as part of the SAFE Port Security Act, the nation’s banks and credit card companies are prohibited from accepting payments for some online bets or wagers. However, the financial institutions are largely left to figure out which gambling transactions are illegal and block payments.

Financial institutions say this unfairly puts them in the position of trying to decide what’s legal with little clear guidance from the federal agencies responsible for implementing the rule.

Until the federal agencies issue better guidance, some financial service companies may refuse to handle any online gambling transactions, said I. Nelson Rose, a law professor at Whittier College in Costa Mesa, California. "The problem is that in some states online gambling is legal, in others it is not and in still other cases the question depends on where the bettor is, where the gaming operator is and what form of gambling is taking place," Rose told the newspaper.

The Herald recaps recent Congressional hearings and requests from federal officials for comment on implementing regulations designed to underpin the UIGEA. Over 200 responses were received and are still being considered by federal drafters. On the hearings front, many witnesses across the spectrum of those involved in the process were sharply critical of the law, which they called vague and costly for financial institutions to implement.

One of the most common complaints is that the rules fail to sufficiently define key terms, leaving financial institutions to figure out how to comply, said Congressman Luis Gutierrez.

"For example, the regulation fails to adequately define what constitutes ‘unlawful Internet gambling’ or ‘restricted transaction,’ yet requires the financial institutions to make a determination on their own about what is lawful or unlawful," Gutierrez said.

Also noted by the Herald are the current IGREA legislative attempts led by Congressman Barney Frank to legalise and licence online gambling, and a more recent move in concert with Congressman Ron Paul to halt federal drafters from further work on the now long over deadline regulations.

House Judiciary Committee Chairman John Conyers and Rep. Chris Cannon took former Attorney General Alberto Gonzales to task in a letter last year for the UIGEA's ambiguity on which states should block online horse gambling transactions. They still await a definitive reply.

In response, Deputy Assistant Attorney General Brian Benczkowski said then (and the Department of Justice has since reiterated that) "...while the UIGEA requires that the regulations be issued ‘in consultation with the attorney general,’ the Department of the Treasury and the Federal Reserve have the primary responsibility for drafting the regulations, and therefore we would defer questions concerning the timing or the scope of the regulations to those parties."

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