Find the Right Gam(bl)ing Lawyer and Let Them Cook!

The commercial terms have been agreed. The integration is done. The campaigns are ready. What are we waiting for? The lawyers. It’s always the lawyers. How long does it take to “hammer out the details of an indemnity clause”? Or argue about a hypothetical scenario that is almost certainly not going to happen? 

Business team, I feel this. I don’t like holding up deals. I don’t like being the “no” guy, and I don’t enjoy going through an agreement section-by-section and arguing about whether certain scenarios should be considered as part of the carve out to the limitation of liability clause. OK, maybe I do enjoy arguing about whether certain scenarios should be considered as part of the carve out to the limitation of liability clause, but I still hate holding up deals!

We are necessary! Maybe not deal-breakers, but close. We like to say that we’re not here for when things go right. We’re here for when things go wrong. In the commercial context, you are generally worried about a dispute with the other party. In a highly regulated, highly scrutinized industry like legal gambling, you are also dealing with additional factors like regulators, politicians, and public perception. Therefore, it’s especially important to find a lawyer who has domain knowledge and thinks beyond the standard legal contractual terms.

Let me give you an example. When people find out that I specialize in gambling law, they seem interested in gambling as a legal sub-speciality. Or maybe they are good at feigning interest. Or maybe I am bad at recognizing that they are good at feigning interest. Regardless, since I started practicing law in 2011 there have been only two instances where people I see socially want to complain to me about gambling. The first time was in 2012, when, as part of Ontario Lottery Gaming Corporation’s modernization plan, a downtown Toronto casino was being discussed. People (or at least people approaching me socially with their unsolicited opinions) did not like this idea. Working in the gambling space you can feel insulated surrounded by clients and peers whose business-facing opinions of gambling are favorable. But I felt this negativity socially. Everyone had an opinion about why a Toronto casino was bad for the city. I wonder what the public reaction will be when the powers that be try to sneak a casino into Ontario Place?

The second instance has been within the last year. I am approached constantly by people complaining about gaming advertising. “Too many ads” and “why are Connor McDavid and Auston Matthews doing gambling ads?” are the most popular comments. Walking around in Toronto, I notice how often these ads are defaced. People don’t like it. Canada’s public broadcaster has created programming about it. A Canadian Senator has introduced a bill that would create a national framework on advertising for sports betting. Other jurisdictions, such as the Netherlands, ban gambling advertising except in very limited ways. The UK White Paper announced limitations on gambling advertising. 

So when Ontario’s gambling regulator, the Alcohol and Gaming Commission of Ontario, announced that it was considering restricting athlete and celebrity participation in the iGaming market, it wasn’t a total shock. The ads are everywhere. And the complaints are piling up. At least the complaints to me are.

Unfortunately, sometimes the mind can’t help but wander to lawyer things (cue the “you must be fun at parties” commenter). When we negotiate endorsement agreements for public facing clients, we make sure there is a provision allowing for termination when a law or regulatory change has a material impact on the performance of the agreement. And stress the importance of this provision in the face of pushback. We also highlight the risks to talent when we are negotiating agreements on behalf of athletes, celebrities, and influencers. 

What are the termination provisions in some of these high-profile endorsement agreements? Does the Auston Matthews agreement or Connor McDavid agreement allow for termination when a law or regulatory change has a material impact on the performance of the agreement? What about Pointsbet’s agreements with the Trailer Park Boys and professional women’s curling group Team Einarson? And Betano’s agreement with Giannis Antetokounmpo, who signed in April 2023 to be Betano’s first global ambassador? Does one jurisdiction prohibiting celebrity advertising allow for this section to apply in the context of a global endorsement agreement?

Gambling is a highly regulated, highly scrutinized industry, and gambling in Ontario is in its infancy. Changes are inevitable, and having a lawyer on your side with domain knowledge and a global perspective will keep the negotiations on track. How? By focusing on the important legal issues as it relates to the gaming industry. Any lawyer can argue that an indemnity clause should be mutual. But a lawyer who understands domain specific risks can make a more compelling, targeted argument as to the why and when.   

Key takeaway alert! Find a gambling lawyer who actually knows gambling laws and regulations (you’d be surprised – doing a share purchase agreement or a land deal involving a gambling company doesn’t make someone a gambling lawyer, even if the firm’s SEO and marketing material reads otherwise). At GME Law we act for operators, suppliers, affiliates, influencers, talent agencies, payment providers, sports leagues, and professional bettors, and negotiate hundreds of gaming-related agreements. We know gambling, influencer marketing, esports, video gaming, skill-gaming, fantasy sports, and sweepstakes. 

Find the right gambling lawyer and let them cook. You will feel great about your legal agreements.