Does Nebraska’s Gaming Expansion Include Sports Betting?

Adjunct Professor Marc Edelman shared his expert opinion with Sportshandle on the laws of sports betting and games of chance.

Did Nebraska voters lay the groundwork earlier this month for legal sports betting? Turns out that’s a good question — and one that doesn’t have a clear answer. Voters on Nov. 3 approved a trio of referendums that legalize “any game of chance,” but sports betting is not explicitly included in the definition of a game of chance, and daily fantasy operators (many of whom are also sports betting titans) have long argued their game is one of skill.

But sources say that not only was the referendum language vague enough, but that lawmakers are prepared to include sports betting as part of the expansion when they meet next year. That shouldn’t come as a major surprise — sports betting was a discussion point in the state legislature earlier this year.

There are three tests that can be used to determine if a game is one of skill or chance. But beyond that, there are factors surrounding the Nebraska referendum that could help to make an argument either for or against if sports betting is included — or was even intended.

It’s easy to see how sports betting could be included under any of the tests, since none provide a concrete method to classify a game of chance vs. skill. The first two tests leave lots of room for interpretation by using words like “more” and “relevant.”

Several states have adopted a standard that is more strict than both the predominant factor and material element tests. The standard regards contests to be illegal “if they involve any chance whatsoever, even a modicum of chance,” writes Marc Edelman, a law professor at Fordham Law School. At least four states have adopted the rigorous standards, according to Edelman, including Arkansas, Iowa, and Tennessee.

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