by (Photo by PAUL ELLIS/AFP via Getty Images)
After years of debate on Capitol Hill, Georgia sports fans may have a chance to legally bet on sports from the comfort of their living rooms. As competing bills to legalize sports betting move through the Georgia Legislature ahead of Monday’s cross-border deadline, a path forward is becoming clear.
On Thursday, the Senate passed a bill legalizing horse racing that also included online sports betting – underscoring appetite among political leaders for a sports betting-only bill headed to the Governor’s office.
Meanwhile, Georgia Gov. Brian Kemp has signaled his willingness to legalize sports betting, and polls show voters are excited about the prospect — no doubt seeing how their friends and family in other states have the freedom to bet on SEC big days.
HB 380, which would authorize sports betting and put the Georgia Lottery in charge of regulating it, appears to have the best chance of passing — and giving fans a chance to bet on next year’s Super Bowl.
Other legalization frameworks have been considered by the Legislature, including proposals to enact sports betting by constitutional amendment. However, a legislatively proposed constitutional amendment would require a two-thirds affirmative vote in both houses of the Georgia General Assembly before it could be brought to the electorate, and even if that high bar can be cleared, the earliest it could be put in state ballot is November 2024.
A constitutional course would delay the implementation of sports betting by at least two years.
Instead, a legislatively approved sports betting framework – which would only require majority approval to pass – could be implemented as soon as this year.
The Georgia Constitution only restricts certain types of betting or gambling
Some opposed a legislative route, arguing it would violate the Georgia Constitution.
But the Constitution of Georgia does not prevent the legislative authorization of sports betting. It only prohibits “pari-mutuel betting” and “casino gambling” – while authorizing the state lottery.
I am a gambling lawyer and law school professor specializing in gambling law, sports betting and state constitutional issues and have seen how other states have used their state lottery to effectively regulate and manage sports betting.
Georgians need look no further than Tennessee to find a sports betting market operated by the state lottery, which operates and generates tens of millions of dollars in revenue for the state. West Virginia and five other states all have lottery sports betting frameworks.
A 2019 legal opinion from the Office of Legislative Counsel acknowledges the viability of the state lottery option for sports betting, noting that “it appears that the General Assembly has given [Georgia] The Lottery Corporation the authority, if the Corporation so chooses, to permit sports betting as an official lottery game.”
The Georgia Lottery specific step would protect a lottery-run sports betting framework from any successful constitutional attack.
But even without that dig, the legislative authorization of sports betting would not run afoul of the Georgia Constitution.
While some have mistakenly characterized the constitutional prohibition as a “wholesale ban” on all betting (except state lotteries and non-profit bingo), the reality is that the remaining bans on casino betting and gambling are limited in scope. Even the OLC acknowledged in its 2019 opinion—addressed to Georgia state Sen. Brandon Beach—that casino betting and gambling “have limited and specific meanings.” No form of gambling includes sports betting.
Sports betting is not a form of gambling betting
Pari-mutuel betting is a form of betting in which the total amount of all bets are “pooled” and then distributed (minus administration fees and taxes) to those who have winning tickets.
The key feature of pari-mutuel betting is that participants do not bet against the “house” (as they do in sports betting). Rather they bet against each other and determine the “odds” for an event, not known or known in advance, by betting with each other.
Coined by Joseph Oller in Paris in the early 1860s, “pari-mutuel” means “to bet with each other”. In this form of betting, players are pitted against each other rather than the odds being fixed by a bookie or the house.
In pari-mutuel betting, a player’s odds change based on the bets placed by other players and the amount those other players bet. In contrast, in sports betting, the odds are agreed in advance by the player and the bettor and are not affected by the bets placed by other players.
Thus, as long as Georgia lawmakers enact a sports betting regime that excludes “team” horse racing betting from the menu of permitted forms of betting, there is zero risk that sports betting will violate the state’s constitutional ban on pari-mutuel betting.
Sports betting is not casino-style gambling
Casino gambling denotes a physical structure for gambling, consistent with the usual meaning of the word “casino”. Webster’s Third New International Dictionary defines “casino” as “a building or place for gambling.”
Georgia law also recognizes that casino gambling is synonymous with a physical gambling location. Although the Georgia Constitution does not provide a definition, the legislature has defined “casino gambling” as “a place or business for the purpose of conducting illegal gambling activities.”
The Georgia Court of Appeals interpreted this statutory definition to focus on “where” the gambling takes place. In Jackson v. Georgia Lottery Corporation, the Court of Appeals held that the state lottery games of “Cash Three” and “Quick Cash” did not fall within the definition of “casino gambling” because “there (was) no controversy . . . that these games at issue were played locations for the purpose of conducting illegal games of chance”.
The federal government and state attorneys general across the country have made it clear that sports betting is a very different type of gambling than casino gambling. Bettors don’t pull a lever or roll the dice when placing a sports bet – they size up the teams and players, weigh the odds and examine the final lineups. West Virginia (which has a similar ban on casino games in its constitution), Colorado and Michigan have ruled that legal sports betting is not casino-style gaming and requires a degree of skill and knowledge not present in casino-style games.
More recently, I analyzed the issue of whether sports betting constitutes casino-style gambling as part of a just-published Chapman Law Review article evaluating whether legislative authorization of sports betting would violate state constitutional prohibitions against casino gambling. My detailed legal analysis – concluding that it is out of scope – should be dispositive of the issue in Georgia.
That view is shared here in the Peach State by former Georgia Supreme Court Justice Harold D. Melton, who has held that a sports betting market run by a state lottery is well within the bounds of the state constitution.
Elected leaders in Georgia have long viewed a lottery-run sports betting framework as well within their constitutional authority. Three years ago, then-State Senator and now Georgia Lt. Governor Bert Jones introduced an online-only sports betting bill that is very similar to the one currently being considered in the Georgia House.
If Georgia lawmakers pass HB 380 through the House this week, Georgians will be one step closer to being able to place legal bets and generate revenue for important Georgia priorities.
