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Report No. 276

B. Examining Foreign decisions

3.30 It is found that, in the Canadian case of Rex v. Fortier51, the distinction between game of chance and game of skill was set out by the Court stating that,"[A] game of chance and a game of skill are distinguished on the characteristics of the dominating element that ultimately determines the result of the game."

3.31 In Philip D. Murphy, Governor of New Jersey v. National Collegiate Athletic Association etc. (case no. 16-476 and 16-477) decided by the Supreme Court of the United States on 14.05.2018, the Professional and Amateur Sports Protection Act 1992 (PASPA) was under scrutiny, as to whether it is in conflict with the Constitution of the United States of America or not. The provisions of the Act provided that neither the States nor the non-state actors can indulge in the activities surrounding the sports gambling, such as sponsorship, promotion, advertisement and licensing the same.

3.32 The Supreme Court of the United States, with a ratio of 6:3. Declared the Act unconstitutional. It opined that the scheme of the Act is "anti-commandeering" in nature, the Congress could not directly control the States, rather regulate the action of the individual, directly. Therefore, prohibiting the States from regularising the sports gambling was unconstitutional.

3.33 While dealing with various constitutional and legal issues, the Court took note of both sides' arguments, left the policy making to the Congress. In case the Congress does not wish to do so, the States are at liberty to regulate the sports gambling.

3.34 In the case of State v. Gupton,52 the Supreme Court of North Carolina held that any athletic game or sport is not a game of chance. In the United States, the 'dominant factor test' is applied by many States to determine whether or not a particular game is a 'game of skill' or 'game of chance'. For instance, poker is considered to be a game of skill because more skilful players will always win over the less skilled or novice players.

3.35 In a study carried out by the Computer Scientist Roman Yampolskiy, it is concluded that Poker is a game that requires a specific set of skills and some of those skills include:53

1. The ability to precisely calculate probability of a needed card coming on a turn;

2. The skill to read opponents' behaviour and body language; and

3. The competence to apply strategic concepts such as "semi-bluffing and playing for implied odds."

3.36 The Court of Justice of the European Union in the case of The English Bridge Union Limited v. Commissioner for Her Majesty's Revenue and Customs54, while deciding whether 'duplicate bridge' would constitute a "sport" within the meaning of an exemption provision under the Council Directive on Value Added Tax55, opined that even though an activity promotes physical and mental health, it is not, in itself, sufficient to conclude that such activity would be covered within the term "sport" in the said provision; and even if it were so, activities of pure rest and relaxation are not included within the purview of 'sports'.

The Court further noted that the concept of 'sport' appearing in the said provision is limited to activities satisfying the ordinary meaning of the term 'sport', characterised by a "not negligible physical element", and does not cover all activities that may, in one way or another, be associated with that concept of 'sports'.

3.37 Analysis of the aforementioned decisions brings out two principles. Firstly, prize competitions and contests, where the winner is determined by draw of lots are in the nature of gambling and cannot be extended protection under Article 19(1)(g) of the Constitution of India. Secondly, games where preponderance of skill dominates cannot be considered gambling and are protected under the Constitution.

Legal Framework - Gambling and Sports betting including Cricket in India Back

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