Winning Post – Hesse prepared to boot out .com operators in the New Year?

Industry strategic consultancy Regulus Partners starts the week off with an analysis of the German online regulated market, before addressing the fall out from last week’s general election in the UK.

Germany: online regulation – Hesse prepared to boot out .com operators in the New Year?

While many online operators might breath a (relative) sigh of relief on UK political risk after last night’s emphatic General Election victory for the Conservatives (more below), the licensing authority of Europe’s largest economy highlighted a much starker and near term risk. The interior minister of Hesse (the state in charge of licensing) has made it very clear that interim sportsbetting licence applications are expected now (not, as many assumed in January) and that a licence will be required to trade sportsbetting from the New Year, while reinforcing the (equally clear) point that online gaming will be prohibited as part of fulfilling the temporary betting licence obligations. The German licensing body is therefore threatening to severely disrupt the entire market, which is a dangerously long way off its interpretation of compliance (January is two and a half weeks away, including Christmas).

For some operators, there seems to be confusion over when licensing applications should be submitted (in January rather than for January). For other operators, there is perhaps an unwillingness to agree to restricting sportsbetting and switching off casino until absolutely necessary. For others still, there may be a determination to trade through and hope that the courts find sufficient grounds to question the validity of the licensing regime under EU law to allow the fudge to continue (ideally with somebody else acting as legal lightening rod). All of these are high risk, in our view – as we have been flagging for months (if not years!) – and in the Interior Minister’s own words, the clock is ticking…

A number of operators have a lot to lose in terms of German casino: GVC, Bet-at-home and The Stars Group in a major way; Tipico, 888, William Hill (MRG) and the Nordic operators in a material way. More operators still have high risk of not being compliant for licensing in betting, regardless of switching off casino (e.g. GVC and Bet-at-Home again, Tipico, bet365, Interwetten). A big question therefore is whether a game of chicken is a sensible strategy, or whether the result will be of the roasted variety.

In our view (and we are not lawyers), Germany has done enough to make IST3 EU compliant (and anyway the EU cares less and less about such matters), meaning that some strong action against non-compliant operators from the administrators and/or the courts early in Q1 is a very high risk. Cease and desist can be challenged, but not if it is accepted in the courts (which is likely: then the job will be to try to turn revenue back on); the potential for criminal proceedings are a bigger matter – especially for those operators with any sort of domestic footprint or licences to protect where such things can cause big issues (UK, US, SE, for example).

We have been arguing for some time that losing German casino (including poker) early in 2020 is a very real possibility (€835m revenue, 45% of total DE revenue but a higher mix for pretty much all major exposed operators ex. betting-led Tipico and bet365); the Interior Minister’s comments suggest that betting might be at temporary risk also (NB, being taxed is not the same as being licenced). Operators that are hoping to kick the can down the road in order to influence a more liberal permanent licensing regime (which the states still can’t agree on) could be facing serious legal and regulatory threats – and this strategy may very well backfire politically also (EU directives do not provide a God-given right to liberal regimes or .com protection, while regulatory patience with operators is clearly wearing thin). Of course it is possible that fudge will prevail, but Hesse’s comments reinforce our view Germany might be preparing some very nasty ‘surprises’ for exposed .com operators in the new year.

UK: Politics – Shuffle Up and Deal

The outcome of last night’s General Election seems likely to have profound consequences for the United Kingdom, the most obvious of which is its now certain withdrawal from the European Union and in turn the renewed possibility of Scotland’s secession from the UK (albeit that was likely whichever way the vote went). What it means for gambling is less clear.

Up until a few weeks ago, Labour’s defeat would have meant a deferral of the new Gambling Act that the party’s former Deputy Leader, Tom Watson had planned to introduce. The belated decision by the Conservatives to ante up on Watson’s reformation changed all that. The suggestion that a root and branch review of primary legislation for gambling might be led by the Department of Health rather than the Department for Culture, Media and Sport (gambling’s sponsor department) raised the spectre of a far more radical agenda than that proposed by Labour (the current Health Secretary’s proximity to racing notwithstanding).

It remains to be seen how quickly the Conservatives will push on with this review (and how long it will then take to introduce a new Act) but there are many influential people within and outside the party who are determined to make Boris Johnson make good on this particular manifesto commitment.

British licensees therefore have little option but to assume that the process for a once-in-a-generation fundamental rethink on betting and gaming will begin next year – regardless of the prognostications of the legion of lobbyists, PR folk and tarot card readers that encircle the industry.

Most of the major actors in gambling’s political drama will be returning to Westminster next week to pick up where they left off. The major changes to personnel took place last month with the resignation of the Culture Secretary, Nicky Morgan and her Shadow, Tom Watson; and we must wait to see who will replace them. Health Secretary, Matt Hancock (Cons, Suffolk West) increased his majority and seems likely both to stay in post and to play a leading role in the gambling debate. The minister currently responsible for gambling policy within the DCMS, Helen Whately (Cons, Faversham and Mid-Kent) and her opposite number, Dr Rosena Allin-Khan (Lab, Tooting) successfully defended their seats but it is not certain that they will retain their ministerial and shadow ministerial briefs through the process of reshuffle (Mrs Whately has after all been in post for a whole three months now – which makes her something of a veteran).

The leading players in the Gambling Related Harm All Party Parliamentary Group, Carolyn Harris (Lab, Swansea East), Ronnie Cowan (SNP, Inverclyde) and Iain Duncan Smith (Cons, Chingford and Wood Green) will all be back, as will the former sports (and gambling) minister, Tracey Crouch (Cons, Chatham & Aylesford). All are figures of some influence within their parties and all favour significant regulatory tightening.

We can expect Lord Grade’s select committee inquiry into the social and economic effects of gambling to be reappointed fairly quickly and to set forth its proposals before the summer recess. It is likely that this report will help to frame the ensuing Government review. Meanwhile, the regulatory landscape will continue to shift even as the political machinery of legislative reform clanks into gear. The Gambling Commission is set to opine on a range of matters in the New Year – including the use of credit cards and Category B machines in licensed premises.

For the industry, the challenge in 2020 will be to maintain a focus on the central programme of legislative reform while dealing with the myriad tributaries feeding into that process – and avoiding the habitual temptation to blow its feet off.

UK: Regulation and safer gambling – Open Wide and Say AAGH!

Of all the fine messes that gambling has got itself into in recent years, the descent into utter incoherence of the system for funding research, education and treatment (‘RET’) is surely one of the most avoidable and the most dismal.

This week saw the publication of Lord Chadlington’s plan to disburse £60m a year (by 2023) in industry funds to organisations seeking to address gambling harms through treatment, prevention and research. The new organisation will be known as Action Against Gambling Harms or AGH (although the fuller acronym, ‘AAGH’ might have been more apt given the reaction from some in the industry). It will be launched officially next year, following registration with the Charities Commission and the recruitment of executive officers.

The organisation’s charter has been composed by the doyenne of PR, Lord Chadlington with help from the former barrister, Lord Carlile QC and Liz Ritchie of Gambling With Lives. One of the key themes of the plan is to restrict involvement from donors to simply coughing up the cash. This will be a fiercely independent organisation – at least within a very narrow definition of independence that denies influence from funding but not it seems from ideology

It is all rather unsurprising – although whether it is quite what its ‘Big Five’ funders had in mind when they unleashed their largesse is another matter. The decision to place 90% of RET funding in the hands of people who don’t very much like the gambling industry always seemed like something of a high-risk strategy (a nuance that some operators seemed dangerously oblivious to in the quest to look like ‘good guys’).

Despite the fact that Chadlington and his team have had a number of months to put the plan together, there are elements that don’t feel all that well thought through. For example, there is a stipulation that should any gambling operator approach AAGH to suggest support for a particular organisation, that organisation would subsequently be frozen out of funding. This could lead for example to Gamcare’s national treatment network and national helpline being denied industry funding through no fault of their own – something that could have profound consequences for treatment and support in this country. Indeed, it would take just a single operator email for all of the charities currently involved in addressing gambling harm to be black-listed – including Action on Addiction, AddAction and Gambling With Lives (where Lords Chadlington and Carlile and Liz Ritchie are respectively trustees). This was probably not intended, but language could be tightened given the PR-legal background of some of the key protagonists.

AGH’s drive to enshrine independence from all other organisations – including the Gambling Commission – may also prove problematic. The Chadlington Plan states that: “Where possible, AGH will follow the National Strategy to Reduce Gambling Harms as set out by the Gambling Commission. However, AGH is an independent charity which should work in partnership with all existing organisations and where relevant support appropriate aims, but it should not be in the thrall of any of them.”

The suggestion that AGH will dovetail with the NSRGH to the extent that it sees fit is likely to jar with guidance issued by the Gambling Commission last week on the creation of a ‘white-list’ of accredited RET fund recipients. The consequence of AGH’s autocracy may be that it is denied accreditation – with the result that only a minority of industry funding for harm prevention ends up being recognised by the regulator.

The Chadlington Plan also envisages that “the rest of the industry [will be] encouraged to contribute” – yet this seems inconsistent with the general tone of hostility to licensees evinced elsewhere in the document. Quite what would motivate other operators to donate their money to AGH (particularly if it is not on the Commission’s white-list) is not made clear.

Aside from all these issues, there is the simple fact that the Conservatives, Labour and the Liberal Democrats have all now thrown their support behind a statutory levy for RET – making it a racing certainty regardless of parliamentary arithmetic. If mandatory funding is now on its way in, does it really make sense to go to the effort and expense of establishing a new distributive body (unless of course the Big Five agree to fund AGH irrespective of and in addition to a levy as well as the issues above)?

The fact that we have come to this position highlights a number of questions of leadership and coherent strategy – from the industry, from the Government, from the regulator and from GambleAware – in relation to RET. The resultant confusion is not a trivial matter and is in danger of creating damaging uncertainty for frontline organisations dealing with gambling disorder and wider harms. As we have written before, calls for a statutory levy ought to have been preceded by a thorough assessment of the situation (What needs doing? What will it cost? Who should pay?). However, we are now clearly beyond such niceties. Given the abject mess on the issue of funding, a levy now seems like the least worst option.

UK: Regulation and safer gambling – Follow, Follow the Star

Christmas is notionally a time of peace – Paul McCartney and his pipes, John Lennon giving it a chance and Peter Hooton of the Farm singing about a football match amidst the trenches of Belgium. In keeping with this spirit, the independent bookmaker, Star Sports raised a flag of truce this week by announcing that it would shutter its online casino for Christmas Day.

The decision to go dark is a response to the nobet364 campaign – an attempt to raise awareness of the elevated risks (for some) of gambling harm at this time of year. Some argue that – in these achingly woke times – suspension of trading at Christmas will lead inevitably to calls for similar action during other religious and cultural festivals. The fact is though that Christmas holds a very special place in the British calendar that puts it above other days. As Homer Simpson reminds us, Christmas is a special day when we come together to celebrate the birth of Santa.

Section 183 of the Gambling Act 2005 forbids the opening of casinos, arcades, betting shops and bingo clubs on Christmas Day (although slot machines in pubs do not appear to be covered by this ‘Santa clause’) but makes no such proscription for any other day of the year, regardless of secular or religious significance. This is important context. While few (if any) other operators are likely to follow the Star Sports example, the nobet364 campaign does appear to have prompted reflection more widely amongst licensees – and this may lead to other activities to address seasonal risk. The manner in which the nobet364 campaign has been conducted and the response from Star Sports and some other industry participants offers hope for a more enlightened, more tolerant approach to resolving regulatory concerns.

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Content provided by Regulus Partners