Delaware was the first state to ratify the Constitution. It has been trying to be first in something else ever since. (Actually, for a time it was—although it did not advertise the fact. Until 1975 it had the highest state personal-income-tax rate in the nation.) So last week Delaware, 49th among the 50 states in square mileage and 47th in population, became the first to institute a government-run lottery scheme that will enable its citizenry, as well as out-of-staters, to bet on National Football League games through the purchase of computerized football cards. Delaware considers itself ingenious for devising this scheme, by means of which it figures to net $2 million this fall, and it expects other states to follow its lead.
The NFL, however, considers this Delaware first outrageous, a giant wart of ugliness on its otherwise beautiful game and, well, an all-round crummy idea. So a battery of NFL lawyers raced into U.S. District Court in Wilmington the other day, raising all kinds of objections. What the NFL wanted was a temporary restraining order against the Delaware lottery. The judge, Walter Stapleton, read the briefs and affidavits, listened to several hours of argument and said that at first blush it didn't look to him as though the Delaware plan would irreparably harm the NFL. At least not until a fuller hearing could be held. So he gave the state the green light.
The NFL intends to keep challenging Delaware in the courts, primarily on the grounds that pro football is its property, that it doesn't want Delaware or anyone else as a partner in gambling and that it is improper for the state to use the game for its own profit. This thinking follows the legal principle that you cannot reap what you have not sown. But Peter Simmons, Delaware's lottery director, says, "We don't want the game, just the scores." After Judge Stapleton's ruling, NFL attorney John Paul Reiner said pro football was "very disappointed." He added, "This was only the first quarter."
Maybe so. In the meantime, while the legal dispute continues as to whether Delaware can indeed proceed with the lottery, the state will be doing just that. Barring unexpected legal developments, two types of betting cards for the NFL's 14 season-opening games next weekend will go on sale this week. Under the Delaware system, a bettor can risk from $1 to $20 on one card and from $1 to $10 on the other. On the first, called Football Bonus, the investor must pick either seven or 14 winners; on the other, called Touchdown, he must pick the winners of any three, four or five games, along with the approximate point spreads—0 to 7 points, 8 to 14 points, 15 points and over. Because the wagering will be conducted under a pari-mutuel system, bettors will not know their potential payoff; in fact, winnings will not be paid until Wednesday. (Bookies use football cards with stated odds and guaranteed payment ratios. And bookies pay up instantly.) To discourage big-time gamblers, the Delaware pari-mutuel pool will offer the bettors a return of only about 45% of the total amount wagered. Horse tracks return some 80%.
Thirteen states conduct regular lotteries, and a number of them are rubbing their hands in anticipation of a Delaware-style sports gambling deal. New York and Connecticut, which already have off-track betting, are especially interested, and Maryland, Pennsylvania, New Jersey and Massachusetts are curious. Nevada and Montana permit legal parlor-type gambling on NFL games, but the NFL views Nevada as a shame, and Montana of little import because nobody lives there. Delaware, though, concerns the NFL's image makers and lawyers because of its location in the backyard of three pro teams—Philadelphia, Washington and Baltimore.
What bothers the NFL is that Delaware is going into the gambling business directly, whereas the Nevada and Montana operations are private businesses subject to state and local controls. The NFL notes that there are arguments for and against the legalization of marijuana, but that "none would argue that the states should themselves go into such businesses in an entrepreneurial way."
Another NFL argument against the lottery is that gamblers will attempt to fix games. However, Washington Quarterback Randy Johnson says, "I don't think you can fix a football game. One guy just doesn't mean that much. Cripes, the other night I completed two of 13 passes and we still almost won. That's like trying to throw a game but you can't." Nonetheless, Norm Veasey, another NFL lawyer, frets, "This will change the focus from the scoreboard to the tote board."
A survey of players and coaches produced a strong negative reaction to legalized betting. Dallas Tackle Ralph Neely objects because "I feel it's demeaning to me. I'm the same as the horse." Miami Placekicker Garo Yepremian says there are so many other things to bet on that "you don't have to bet on football games." Don Klosterman, general manager of the Los Angeles Rams, maintains that legal betting would make things so volatile that moats would have to be dug around the fields and bodyguards assigned to the coaches.
Despite such fears, the NFL has difficulty trying to explain that while bookie and office-type gambling—both illegal—haven't hurt pro football, legalized gambling will. Rozelle says that occasional betting in an office pool "is far removed from the kind of habitual systematic gambling involving additional millions of people that government sponsorship would undoubtedly generate." Delaware's Simmons says, "We've tried to make this as much like an office pool as possible."
Another NFL contention is that legal sports betting will create a new class of gamblers. Whatever, Rozelle is certain of one thing. "The world knows no less rational person than a losing bettor," he says.
Along with convincing some court that football is its private property, the NFL's next-best bet may be its insistence that the trademarks of the teams—for example, even the name Philadelphia Eagles, as two words or as either one—cannot be infringed upon for commercial reasons. Arguing for Delaware in court, James M. Mulligan Jr. said that it sounded to him as if the NFL was "in search of an enforceable right." Delaware Attorney General Richard R. Wier Jr. says, "Get a law book and point to the one we're violating."
A thornier question seems to be whether picking football winners involves chance or skill. Winning a lottery is almost entirely a matter of chance. As Oliver Wendell Holmes once wrote, "What a man does not know and cannot find out is chance as to him, and is recognized as chance by the law." But picking three, four or five football winners—not to mention 14 winners—would seem to require a measure of skill, and one of the NFL legal briefs says that "common sense dictates that the term lottery simply does not mean football gambling."
All this legalese doesn't bother Tony Angelo very much. Angelo is the proprietor of Angelo's Market in Wilmington and sells everything from cultivated snails to bikes; he also is one of 150 agents authorized to sell the football cards and cannot imagine why any right-thinking person would be opposed. "It's perfect," he says. "It's gonna create a lot of interest in football. It's gonna benefit our state. It's gonna benefit my store. And I can't see how it will hurt the NFL."
Understand that Tony already has sold four big winning lottery tickets in less than a year—one for $15,000 and three for $10,000. One of the $10,000 variety he sold to himself; another he sold to his brother. Such fortune does breed a certain enthusiasm for games of chance. Tony, like every other agent, gets 5% of ticket sales (he sells around $4,500 worth a week) and the equivalent of 2% of all winnings over $100. "I do good because people like to buy from a winner," says Tony. On the other hand, a Wilmington barber, through whose hands a few illegal football cards have been known to pass, thinks the legal lottery is "terrible." Like others, he thinks the scheme may fail because the state can't compete with bookies in the areas of credit and tax-free winnings. He also remembers that the first Delaware lottery failed in 1975 and had no big winners for a five-week period; it was revived under a new format six months later.
Martin Rudnitsky, who runs The Smoke Shop in Wilmington, sells lots of lottery tickets and is naturally excited over football cards. "At last," he chortles. "Now Delaware's gonna be first in something." Whether its first lasts is another question.