Anti-UIGEA legal fight on track, iMEGA boss Brennan says
The man leading the legal fight against UIGEA, iMEGA chief Joe Brennan, has dismissed media reports that his battle against America's online gambling ban in the courts this week stumbled.
The man leading the legal fight against UIGEA, Joe Brennan, has dismissed media reports that his battle against America’s online gambling ban in the courts this week stumbled.
Brennan is chairman of internet freedom lobby group the Interactive Media Entertainment & Gaming Association (iMEGA). iMEGA is bringing a court challenge to have America’s Unlawful Internet Gambling Enforcement Act (UIGEA) egaming ban declared unconstitutional.
Together with the US Department of Justice (DoJ), which was defending UIGEA, iMEGA lawyers presented oral arguments in the US 3rd Circuit Court of Appeals this week.
Most subsequent media reports said UIGEA is likely to withstand the challenge, with US legal journal Law.com saying that judges were ‘unimpressed’ by iMEGA’s arguments.
However speaking to EGRmagazine.com today, Brennan argued that reporters had failed to understand the difference in approach between appellant and trial court hearings.
“When our members read the media reports I think they will think that we got our as*es kicked, and I want them all to know that it’s not as bad as that,” he said. “At trial level judges are passive, but at appellant level most of the work is done in advance of the hearing, and in some cases the judges won’t entertain oral arguments at all.
“Our lawyers told me flat out before we went into it to get ready to be humble because that’s what those appellant judges do: they will go to work on your argument and grind you down on it, but that’s not a problem. Appellant decisions are intellectual exercises by judges who do their own research – 90% occurs outside the court room.”
The hearing, which took just half an hour, took place in the US Court in Philadelphia, Pennsylvania.US 3rd circuit judges typically reach a decision within three months.
iMEGA is challenging UIGEA on the grounds that Congress failed to clearly define online gambling in the law, making it “critically vague”, Brennan said. “A requirement of law in this country is that a reasonable person has to be able to know if they are breaking the law and with UIGEA that is not the case.”
It is also challenging UIGEA in that the law compels banks and credit card companies to police online gambling transactions and to use state laws to determine if a transaction is unlawful when only four states have rules explicitly prohibiting egaming, Brennan said, and when no uniform definition of “unlawful Internet gambling” was provided by the US Congress when it created the law.
The 3rd circuit has the power to overturn the law, although the DOJ will have the option of then appealing the decision in a higher court if it loses.
If iMEGA loses, it would have the option of asking for an ‘en banc’ appeal, which means having the case reviewed by all 11 judges in the 3rd circuit, instead of just the three involved in the original decision, or it could appeal to the US Supreme Court.
Asked whether he expected iMEGA to win or lose, Brennan said only “ask me that in 48 hours”
Asked whether or not he expected the US authorities to appeal if UIGEA is struck down, Brennan said: “UIGEA was passed under a different administration. The decision will be based on the priorities of the set by the new administration, and I can’t predict what Obama’s priorities will be.”