Irwin A. Kishner, Partner

Irwin Kishner, co-chair of Herrick's Sports Law Group and co-chair of Herrick's Corporate Department, was quoted in InGame in an article discussing Polymarket's new position as Major League Baseball's official prediction market partner, their endeavor to ensure fans and bettors a fair game and the nuances of the partnership.

The article notes that it is reported the Polymarket's global site is not involved in the partnership, "which figures to lessen impact" and that the MLB "negotiated the right to exit if sports events contracts are eventually deemed illegal in the United States."

Irwin told InGame, "that the escape clause 'sort of jumps off the page a little bit.'”

“That is somewhat of a suspect clause in the sense of, ‘Well, let’s do this, but if somebody says you’re not allowed to do it, it all gets unwound,’” said Irwin. “Even whether you say it or not, you can’t profit from a crime. It’s sort of like common law principles.”

The article also discusses that the ultimate legality of sports event contracts may not be determined for years. 

So in the interim, Irwin said, "the MLB-Polymarket union is a case of a league exploiting a rare new revenue source while attempting to balance social mores."

“I think everybody’s approaching this with a very heightened awareness and doesn’t want to get out in a bad PR stance,” he said. “Sponsorships are a major part of running a sports organization. And for a long time, gambling was taboo. And for a long time, tobacco wasn’t taboo. Now it is taboo." 

“Societal norms dictate how teams and leagues get out of the sponsorship or get forward with the sponsorship. And as that evolves over time, different revenue streams develop, i.e. the tobacco companies putting a big sign and calling it Marlboro Field, as opposed to Bank of America or AT&T or whatever it may be. I think for teams and leagues, it’s really what those societal norms dictate at that moment.”

Further, the MLB "touted the deal as a sports integrity firewall."

Irwin "speculated that MLB likely was motivated by the appearance of proactivity. And by the stigma from previous scandals."

“Given some of the things that had transpired with baseball last year, MLB wanted to sort of get ahead of those kinds of issues,” he said. “So I would imagine there’s a major integrity portion of this and you’ve seen MLB also interact with the CFTC on this. Wagering is part of the current landscape in sports. And having, if you will, appropriate revenue share that also has the appropriate part of the revenues going toward the integrity of the contest makes sense.”

In discussing the future of prediction markets, Irwin "believes that it’s 'inevitable' that the NBA and NFL eventually take on prediction market partners. MLB’s timing and emphasis on data and integrity concerns, he said, also made sense."

And gambling, he said, isn’t going away. So why not capitalize?

“I think those are some of the competing forces at play here,” he said, “just simply being able to extract value for what’s going to inevitably be the case anyway, which is wagering on professional sports.”

Read the full article in InGame here. Access may require a subscription.