The Massachusetts Gaming Commission (MGC) took testimony but issued no decision on Wednesday (June 7) over whether a “can’t lose” parlay promotion offered by Barstool Sportsbook violated the state's sports-betting and marketing regulations or should be considered satire.
The promotion from Barstool Sports personality Dan “Big Cat” Katz that led to the two-hour adjudicatory hearing has already been discontinued in Massachusetts. Known as the “Can’t Lose Parlay,” the promotion was promoted by Katz on social media and the Barstool Sportsbook app.
Zachary Mercer, an attorney with the MGC’s Investigations and Enforcement Bureau (IEB), testified the IEB became aware of the promotion on March 12, 2023, when it was notified of the promotion by Chris Soriano, vice president and chief compliance officer with Penn Entertainment.
A photo tweeted out by Dave Portnoy of a bet he made on that particular “Can’t Lose Parlay” for $13,458.70 was also part of Wednesday’s hearing.
Penn, which operates Barstool Sportsbook in Massachusetts and in other states, voluntarily halted the promotion on March 13. Soriano told the commission the company is willing to submit a written order assuring regulators the promotion has been permanently discontinued.
Mercer said the “Can’t Lose Parlay” that led to the investigation included four men’s NCAA basketball games on March 10, but none of the games involved Massachusetts-based colleges or universities.
The MGC will consider if the promotion violated marketing and promotion regulations that prohibit content that is “deceptive, false, misleading, or untrue, or tends to deceive or create a misleading impression.”
There is also a state gaming regulation that prohibits “anything that would imply or promote that sports betting is free of risk in general, or in connection with a particular promotion or sports wagering offer.”
Jonathan Albano, an attorney with Morgan Lewis in Boston who represented Penn subsidiary Penn Sports Interactive, asked the commission to rule that the offering in March of the “Can’t Lose Parlay” did not violate the statute or regulation cited in the notice of hearing.
He also argued that Portnoy’s tweet on March 10 did not constitute any type of regulatory violation. Albano said there was no misleading information in the tweet.
Albano went on to say that in order to make those determinations, the commission has to analyze the documents through the eyes of a reasonable consumer.
“We respectfully submit that no reasonable person who saw a parlay with long-shot odds, that required a player to win not one, not two, not three but four bets or lose the parlay … would have concluded that they were engaging in a risk-free, sure thing type of bet,” Albano said.
“The [Can’t Lose Parlay] is a humorous, satirical reference to Dan Katz’s reputation as an awful bettor,” he added.
The “Can’t Lose Parlay” was offered in 15 separate jurisdictions before Barstool Sportsbook brought it to Massachusetts. Albano noted that six of those jurisdictions require submittal to the regulator of the terms and conditions of each promotion, while four of these states require pre-approval of the offer.
“Prior to March 2023, no regulatory authority had objected to any of the [Can’t Lose Parlay] offerings and Penn has no record of any complaints or consumer confusion about these offerings,” Albano said.
As of March 20, Barstool consumer data showed there were 122,428 unique Can’t Lose Parlay players, with 55 percent of those unique players being repeat bettors, and of those repeat bettors, 90 percent have lost their first bet.
“That I would suggest is compelling evidence that bettors who had hypothetically thought that this was a sure thing and lost, surely 90 percent of them would not have come back for a repeat bet,” Albano said.
Commissioner Eileen O’Brien disagreed, saying it could show that 90 percent of bettors were “chasing their losses.”
“My point is that as someone born and bred in Massachusetts,” Albano said, “Massachusetts residents are not less sophisticated, less reasonable or less able to ascertain that if you have to win four … long-shot bets, it is not a sure thing.”
The commission did not decide on the Penn Sports Interactive complaint on Wednesday. Instead, it will issue a written decision at a later date, with potential punishments ranging from a reprimand to a fine to a suspension or revocation of Penn’s license.