Page 12 - BusinessWest April 4, 2022

Editorial
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Why the Inaction on Sports Gambling?
Maybe we shouldn’t be surprised by this state’s mind- numbing hesitancy when it comes to sports gambling. After all, legislators waited years after other states
moved ahead with casino gambling to finally put a measure in place for Massachusetts. Time and again, casino gambling was brought up for votes and brushed aside for ... another day. Finally, casino gambling was approved roughly a decade ago, but the hesi- tation cost the state dearly. Indeed, by the time the three casino operations in the state, including MGM Springfield, were up and running, the competition in surrounding states had increased exponentially, essentially changing the landscape and making it far more difficult for those casinos to gain the revenues that were pro- jected when the casino bill was finally passed.
One might have thought the state would have learned from this expensive lesson, but here we are in late March, the middle of this year’s college basketball championships, the biggest betting event on the planet, and the state appears nowhere close to passing a sports-gambling bill.
It’s perplexing, but it’s also quite frustrating. The casinos sorely need this huge revenue stream, and the lack of sports betting is putting them at a competitive disadvantage, not only during March Madness, but the other 11 months of the year as well. The casinos have all built facilities in anticipation of a sports-gambling mea- sure — MGM has created two areas for watching and wagering on sports (see story on page 33) — but they currently sit unused or have been put to other uses.
Theories abound about why there is such hesitation on sports
Opinion
gambling, including the one concerning it becoming competition for the state’s highly lucrative lottery. We understand the prem- ise, but people were saying the same thing about the state’s three casinos. Almost four years after they’ve opened, the lottery is still thriving.
Another theory is that legislators are wary that sports gambling — on top of the casinos and the aforementioned lottery — would be too much gambling and perhaps put more people at risk of developing addictions.
We understand this theory as well, but if people want to bet on sports — and a large number of people do (Americans spent $9.7 billion on sports bets this past January alone) — they will find a way to do it. And with New Hampshire, Connecticut, Rhode Island, and other nearby states already allowing such gambling, they don’t have to travel far to do it.
Overall, 15 states introduced sports-betting legislation in 2021, according to the National Conference of State Legislatures, and the big question is why Massachusetts didn’t make it 16.
Bills have been introduced — several of them, in fact — but they haven’t received the requisite attention to gain any traction.
Overall, sports gambling is just not a priority in this state. Should it be? There are plenty of other priorities, certainly, includ- ing housing, education, mental health, and childcare. But while tackling them, it seems the state Legislature could find the time and inclination to pass a sports-gambling measure.
The ongoing hesitancy simply doesn’t make sense. And it should not continue. v
Chipping Away at Arbitration
FBy Mark Adams
or many employers, arbitration
agreements have been a valuable
tool for resolving employment dis- putes. They allow cases to be handled outside the court system without the costs associated with prolonged discov- ery schedules and complex procedural rules, and, most importantly, without a public record that would allow for pub- lic access to those proceedings. All told, arbitration cases are cheaper and faster for all concerned.
Not just employers appreciate the value of arbitration agreements. Congress rec- ognized their benefit when it enacted the Federal Arbitration Act (FAA), recognizing the right of parties to be able to freely enter into contracts to resolve their disagree- ments. In Moses H. Cone Memorial Hospi- tal v. Mercury Construction Corp., the U.S. Supreme Court stated “as a matter of fed- eral law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration.” Title VII claims, Age Discrimination in Employment Act claims, and Fair Labor Standards Act claims are just some of the many forms of disputes that can be compelled to be resolved through an arbitration agreement.
Yet, despite this long-standing national
policy, arbitration agreements can have their limits. Some state fair-employment- practice agencies do not recognize their enforcement when it comes to cases that can come within their jurisdiction. For example, when it comes to discrimina- tion claims arising under its Massachusetts General Law Chapter 151B, the Massachu- setts Commission Against Discrimination has the wherewithal to move forward with a discrimination complaint on its own accord in the public’s interest.
Now, Congress has passed and Presi- dent Biden has signed into law the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021” to prohibit employers from compelling employees
to resolve sexual-harassment and sexual- assault disputes through the use of an pre- dispute arbitration agreement. While the act takes effect immediately and applies
to such agreements that exist, it does not apply to cases that are already pending. Rather, the act applies to claims that accrue on or after the law’s enactment.
While the motivations for the law’s pas- sage are fairly clear (the rise of the #MeToo movement and the need for greater aware- ness on such cases), it does raise the ques- tion of whether future legislative initiatives
may be forthcoming to create additional carveouts in the interest of workplace transparency. In fact, there is an interim final rule that has been promulgated by the Occupational Safety and Health Admin- istration in implementing procedures for the handling of retaliation complaints under the Taxpayer First Act (TFA), which does exactly that. The rule (which is cur- rently under comment until May 6) states that “no pre-dispute arbitration agreement is valid or enforceable if the agreement requires arbitration of a dispute arising under the TFA anti-retaliation provision.”
That is not to say pre-dispute arbitra- tion agreements are dead. Far from it. After all, they also serve to resolve other disputes that may not have legal consequences at all. However, what may be next? Pay equity and transparency claims? Other forms of federal discrimination? Only time will tell. However, with the growing demand for greater transparency comes the potential for additional erosion of the longstanding policy favoring arbitration agreements in the future. v
Mark Adams is director of Compliance at the Employers Assoc. of the NorthEast. This article first appeared at eane.org.
12 APRIL 4, 2022
OPINION
BusinessWest