CAYMANAS TRACK Limited's (CTL) chairman William Chin-See has said that a document put out by the Fair Trading Commission (FTC) could be termed misleading.
In a recent statement, he said the document indicates that the Fair Trading Commission's staff carried out an investigation into a complaint made in March 2003 by Track Price Plus Limited, pointing out that the opening hours restrictions contained on the Second Schedule to the Betting, Gaming & Lotteries Act denied licensed bookmakers the opportunity to sell bets on English and American races whilst betting shops operated by Caymanas Track Limited are not subject to the same restriction and that CTL's ability to sell bets on those races is not restrained.
OVERSEAS RACING
"I say emphatically that the complaint is flawed. CTL has no automatic right to sell bets on overseas races during local racing. CTL sometimes seeks and gets permission from Betting, Gaming & Lotteries Commission to simulcast some major races such as Breeders Cup and Triple Crown races and to sell bets on those races.
"Under the Betting, Gaming & Lotteries Act, CTL as the occupier of a racetrack has a licence to promote local races and to sell bets on a race by race basis whereas Bookmakers are required to close their shops one half of an hour before the scheduled time for the start of the first race.
"As the occupier of a racetrack and the promoter of horseracing in Jamaica, CTL spends millions of dollars annually on the infrastructure of the racing complex including the construction of and repairs to stables, the preparation of the racing surface, the purchase and installation of expensive patrol cameras and the establishment and maintenance of sophisticated electronic and computer systems for the operation of a pari-mutuel system for pool betting and the determination of totalisator odds.
"The product belongs entirely to CTL and Bookmakers have no intrinsic right to use the product. No where in the document is it shown that staff of the Fair Trading Commission took these factors into consideration in arriving at their findings and recommendations that (a) the statutory scheme negatively affects competition between CTL and Bookmakers; (b) that Bookmakers are deprived of customers who prefer to place bets on a race by race basis and (c) that the law should be amended to give Bookmakers the same privilege as CTL.
MISLEADING
"Happily, the FTC has not made any ruling on the issue. Those advertisements and statements by some journalists that the FTC has ruled in favour of Bookmakers are therefore incorrect and misleading.
"The law remains as it is - Bookmakers are not allowed to sell bets on local racing on a race by race basis. At present there is an abundance of evidence that some Bookmakers are conducting their businesses in flagrant breach of the law. One columnist in two contributions to the Daily Gleaner admitted that the bookmaking establishment in which he has an interest intentionally set out to breach the law.
"I have read the critique by Mr. Richard Ashenheim on the recommendations by the staff of the FTC in the Daily Gleaner of February 27, 2004 and I fully agree with him. Mr. Ashenheim makes the point that the staff did not apply the correct principles of law and therefore fell into error in assuming jurisdiction to enter upon the investigation.
"The staff of the FTC were also in error in stating:
Paragraph 11: "The Regulations require that Licensed Bookmakers negotiate and receive bets at declared odds only. CTL however is the company responsible for determining these odds. Therefore based on the law Licensed Bookmakers are dependent upon CTL although they are both competitors in the same relevant market."
"Paragraph 21: "As stated above, given the Regulations governing the industry Licensed Bookmakers must sell bets at odds declared by CTL. If removing the restrictive provision negatively affects CTL's ability to determine and declare odds, then other options for declaring odds should be examined."
"Section 3 (1) of the Betting, Gaming and Lotteries Act provides that any bet shall be deemed to be made by way of pool betting unless it is a bet at declared odds.
"By Section 3 (2), a bet is a bet at declared odds only if the bettor knows, or can know at the time he makes it, the amount he will win... or, subject to Section 26 on the starting price or totalisator odds. Starting prices relate to the odds immediately before the start of the event and the totalisator odds are those paid on bets made by means of a totalisator at the scene of the event.
DECLARED ODDS
"The Act makes the distinction between declared odds and pool betting or totalisator odds but this distinction seems not to have been appreciated by the staff of the FTC. CTL conducts pool betting and currently, by virtue of Section 18, holds the exclusive right so to do and there are no bets offered by it at declared odds.
"A bookmaker's business is to make books and to offer bets at declared odds, popularly referred to in the business as "fixed odds". Section 26 of the Act however confers a power on the Betting, Gaming & Lotteries Commission to authorise a bookmaker to receive or negotiate bets on a race with payments of winning bets in accordance with the totalisator odds, provided there exists terms as to payments to CTL in respect of proprietary rights as CTL thinks fit. "Nothing in the Act prevents a bookmaker from offering bets at declared odds even if he is authorised to use the totalisator odds. Bookmakers in Jamaica however, do not make books but choose to rely entirely on the totalisator odds.
"The staff of the FTC either did not take into consideration the provisions of section 3, 18 and 26 of the Betting, Gaming & Lotteries Act of if it did, it seems not to have understood the full meaning and legal effect.
"There is absolutely no doubt that the staff of the Fair Trading Commission has made findings and recommendations prejudicial to the interests of CTL and these might have led to the recommendation by the Betting, Gaming & Lotteries Commission for changes to the legislation regarding opening hours. I am therefore amazed that the FTC did not consider that justice and fairness demanded that CTL should have been given the opportunity to take part in the process. I can only recommend to the FTC that in future it be guided by the principle set out in Smith, Woolf & Jowell, Judicial Review of Administrative Acts, 5th Edition (1995) at page 375.
"An important concern of procedural justice is to provide an opportunity for individuals to participate in decisions that affect them. Another is to promote quality, accuracy and rationality of the decision making process. Both concerns aim at enhancing the legitimacy of the process", concluded Chin-See.
