26 PUBLIC GAMING INTERNATIONAL • SEPTEMBER/OCTOBER 2023 social or casual games, or in games beyond those offered by casinos.12 - [T]he following features of iLottery games … do not simulate “casinostyle” features, [and] their use in iLottery games does not constitute the simulation of a casino-style slot machine: the use of [random number generators], par sheets, and certification of mathematical models; the use of reveals like spinning wheels, similar to those used in the games Life or Wheel of Fortune, and cascading and/ or exploding tiles; the use of [return to player] values that are similar to online slot machines; or the use of reveal all, auto play, bonus games, adjustable bets, and unlimited play/ non-depleting prize pools.13 - [T]he use of spinning reels and pay lines are signature, iconic, or key features particular to casino slot machines …. Thus, these features cannot be used by the Lottery.14 The Court held that because the iLottery games offered by the Pennsylvania Lottery did not use any of the key features particular to casino slot machines, they thus did not simulate “casino-style” games and therefore the petitioning slot machine licensees were not entitled to declaratory or injunctive relief. After post-trial motions for reconsideration were denied,15 the decision was appealed to the Pennsylvania Supreme Court.16 Oral argument was held in that Court on April 19, 2023, and a decision is pending. The Greenwood Gaming opinion, whether or not upheld on appeal, is specific to Pennsylvania and its state laws, and other state courts may come to different decisions under different (or even similar) state laws. However, it is instructive as to how complex and difficult distinguishing between iLottery and slot/casino-style games can be. Moreover, this issue may not be confined to Pennsylvania. A similar issue could arise in other states authorizing iLottery and iGaming. In Michigan, for example, the Michigan Lottery offers instant and draw games online, and a 2019 law authorized commercially licensed iGaming.17 The Michigan “Lawful Internet Gaming Act” authorized licensed operators to offer “internet games,” defined broadly, as: a game of skill or chance that is offered for play through the internet in which an individual wagers money or something of monetary value for the opportunity to win money or something of monetary value. Internet game includes gamingtournaments conducted via the internet in which individuals compete against one another in 1 or more of the games authorized by the board or in approved variations or composites as authorized by the board. Internet game does not include a social media internet game as that term is defined in section 310c of the Michigan penal code, 1931 PA 328, MCL 750.310c. 18 However, the Act provides that the Michigan Gaming Control Board (“MGCB”) shall promulgate rules regarding, among other things: The types of internet games to be offered [by licensed iGaming operators], which must include, but need not be limited to, poker, blackjack, cards, slots, and other games typically offered at a casino, but does not include pick numbers or other lottery games typically offered by the bureau of lottery under the [Michigan lottery law].19 The Rules subsequently promulgated by the MGCB provide that authorized games do “not include any of the following: pick numbers or other lottery games typically offered by the bureau of lottery under the [Michigan lottery law]; a lawful fantasy contest; or any lawful internet sports betting.”20 However, it is not clear what games are “lottery games typically offered by the bureau of lottery,” as “typically offered” is not defined. As a result, it is possible that disagreements could arise as to what iGaming games are authorized. In summary, as iLottery and iGaming expand in the United States, each state may have difficulty distinguishing between the types of online games the state lottery and licensed commercial operators may offer. The difference between online lottery and online casino games is not clear, and the difference may vary among states, as each state has different laws, histories and sensibilities regarding lottery and gaming. Perhaps the best guidance in this regard is to follow the words of the lower court in Greenwood Gaming, and assume that, by authorizing iLottery and iGaming, “the legislature intended that … the two offerings [ ] co-exist and, importantly, [ ] be successful.”21 n 1 See the New Hampshire Lottery’s website at https:// www.nhlottery.com/Sports/DraftKings-Mobile-Sportsbook where DraftKings is described as the “Official Sports Betting Partner of NH Lottery,” and see the Oregon Lottery website at https://www.oregonlottery. org/sports/ where DraftKings is described as the “Official Provider of the Oregon Lottery.” 2 See the Rhode Island Lottery Sportsbook website at https://www.sportsbetrhodeisland.com/sports (last accessed August 11, 2023) showing Bally’s Rhode Island casinos as the Lottery’s “partners.” 3 In the District of Columbia, the DC Lottery also operates online sports betting itself – GamebetDC. See https://gambetdc.dclottery.com/en/ (last accessed August 11, 2023). 4 See for example, In re Advisory Opinion to the Governor (Casino), 856 A.2d 320 (R.I. 2004) in which the Rhode Island Supreme Court determined that a proposed casino would be a lottery facility, and that poker and black jack, as well as roulette, craps and slot machines were “lottery games” for purposes of Article VI, Section 15 of the Rhode Island Constitution, which prohibits “[a]ll lotteries .. in the state except lotteries operated by the state and except those previously permitted by the general assembly …” 5 Act of October 30, 2017, P.L. 419, No. 42. 6 Greenwood Gaming and Entertainment, Inc., et al., v. Commonwealth of Pennsylvania, , No. 571 M.D. 2018 (Pa. Commw. Ct., May 25, 2021, post-trial motions denied by order filed September 8, 2021. Appeal pending, No. 76 MAP 2021 (Pa.). 7 4 Pa.C.S. § 502. 8 Id. (emphasis added). 9 4 Pa.C.S. § 1103. 10 See 61 Pa. Code § 876.2. 11 Greenwood Gaming, pp. 34-35 (emphasis in original). 12 Id., at 46. 13 Id. 14 Id., p. 44 (emphasis in the original). 15 Greenwood Gaming and Entertainment, Inc., et al., v. Commonwealth of Pennsylvania, Commonwealth Ct. of PA, No. 571 M.D. 2018, filed September 8, 2021 (“Greenwood Gaming”). Appeal pending. 16 Greenwood Gaming and Entertainment, Inc., et al., v. Commonwealth of Pennsylvania, Pa. Sup. Ct. Dkt No. 76 MAP 2021. 17 Michigan “Lawful Internet Gaming Act,” Act 152 of 2019. 18 MCLS § 432.303(q). 19 MCLS § 432.310(a). 20 Mich. Admin. Code R 432.611 (emphasis added). 21 Greenwood Gaming, p. 34.
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