Gaming Law 2022

Last Updated October 18, 2022

USA — Indiana

Law and Practice

Authors



Bose McKinney & Evans is a business law firm, serving both publicly held and privately held businesses, governmental entities and high-growth industries. Nearly seven decades after Lew Bose founded the firm, his successors continue to embrace the founding principles, remaining dedicated to responsiveness, innovation and excellence. The seven members of the Bose McKinney & Evans Gaming Group possess a deep understanding of the commercial, tribal, lottery, and online/mobile gaming industries, as well as the Indiana, Midwestern and broader gaming regulatory landscapes. Our professionals have been heavily involved in the gaming industry since 1993, when Indiana’s casino gaming law was initially passed, and have years of experience in state government and administration that make them well-suited to provide exemplary regulatory compliance, licensing, and related corporate and administrative law services to gaming operators, lotteries, lenders, investors, gaming equipment suppliers, technology suppliers and more.

The focus of current and expected sector developments is currently centred on a shift in the industry towards online and mobile capabilities. This includes a current focus on a shift in brick-and-mortar casinos toward cashless wagering options, as well as an expected focus in the 2023 legislative session on legalising igaming.

The COVID-19 pandemic resulted in the likely expediting of efforts to implement cashless wagering options in Indiana’s brick-and-mortar casinos.

Betting and wagering on-property at one of Indiana’s brick-and-mortar casinos, off track betting parlours, or tribal casino is permitted. Online wagering (other than sports betting) is not permitted.

Bingo is permitted at licensed facilities and/or licensed charity gaming events.

Indiana is home to 13 licensed casinos and a tribal casino. Online bingo is not permitted.

The Hoosier Lottery is operated in the state of Indiana. Online lottery is not permitted.

Fantasy sports are licensed through the Indiana Gaming Commission and permitted through licensed operators. These sports can be conducted online or via mobile app.

There is no express legalisation of or prohibition against “social gaming” (eg, exchange betting) under Indiana law. If the Indiana Gaming Commission chooses to regulate such options, it could be conducted online or via mobile app.

Poker is permitted to take place at licensed Indiana gaming facilities or at charity gaming events approved by the Indiana Gaming Commission. Online poker is not allowed.

Sports betting is permitted through operators licensed by the Indiana Gaming Commission and may take place online or via mobile app.

(See generally: IC 4-33 (Riverboat Gambling); 4-38 (Sports Wagering); 4-35 (Gambling Games at Racetracks; 4-30 (Indiana State Lottery)).

Betting and wagering on-property at one of Indiana’s brick-and-mortar casinos, off track betting parlours, or tribal casino is permitted.

Bingo is permitted at licensed facilities and/or licensed charity gaming events.

Indiana is home to 13 licensed casinos and a tribal casino.

The Hoosier Lottery is operated in the state of Indiana.

Fantasy Sports are licensed through the Indiana Gaming Commission and permitted through licensed operators.

There is no express legalisation of or prohibition against “social gaming” (eg, exchange betting) under Indiana law.

Poker is permitted to take place at licensed Indiana gaming facilities or at charity gaming events approved by the Indiana Gaming Commission.

Sports Betting is permitted through operators licensed by the Indiana Gaming Commission.

(See generally: IC 4-33 (Riverboat Gambling); 4-38 (Sports Wagering); 4-35 (Gambling Games at Racetracks; 4-30 (Indiana State Lottery)).

The Indiana General Assembly (IGA) will convene the 2023 legislative session in January. At that time, it is widely expected that a bill legalising igaming and ilottery will be introduced. Last year, during the 2022 legislative session, House Bill 1356 was introduced, which would have legalised igaming, but that failed to pass. In addition, House Enrolled Act 1260 (2022), which did pass and was signed by the Governor, eliminated the authority of the Hoosier Lottery to implement ilottery without legislative approval.

Under Ind. Code 35-45-5-1(d), “Gambling” is defined as “risking money or other property for gain, contingent in whole or in part upon lot, chance, or the operation of a gambling device, but it does not include participating in:

  • bona fide contests of skill, speed, strength, or endurance in which awards are made only to entrants or the owners of entries; or
  • bona fide business transactions that are valid under the law of contracts".

There is no definition for “land-based gambling” separate from the definition of “gambling” under Indiana law. (See IC 35-45-5-1(d) for the statutory definition of “gambling”).

There is no definition of “online gambling.” The definition of “sports wagering” can be found at IC 4-38-2-18, and provides that “sports wagering” “refers to a mechanical, electrical, or computerised contrivance, terminal, device, apparatus, piece of equipment, or supply approved by the commission for conducting sports wagering under this article. The term does not include a personal computer, mobile device, or other device used in connection with sports wagering under IC 4-38-5-12.”

The key criminal offences related to gambling in the state of Indiana include the following.

Unlawful Gambling

As defined above (See IC 35-45-5-2)

Professional Gambling/Professional Gambling over the Internet (See IC 35-45-5-3)

This could be defined as a person who knowingly or intentionally:

  • engages in pool-selling;
  • engages in bookmaking;
  • maintains, in a place accessible to the public, slot machines, one-ball machines or variants thereof, pinball machines that award anything other than an immediate and unrecorded right of replay, roulette wheels, dice tables, or money or merchandise pushcards, punchboards, jars, or spindles;
  • conducts lotteries or policy or numbers games or sells chances therein;
  • conducts any banking or percentage games played with cards, dice, or counters, or accepts any fixed share of the stakes therein; or
  • accepts, or offers to accept, for profit, money, or other property risked in gambling; or
  • commits professional gambling, a Level 6 felony. However, the offence is a Level 5 felony if the person has a prior unrelated conviction under this law.

It could also include an operator who knowingly or intentionally uses the internet to:

  • engage in pool-selling either in Indiana or in a transaction directly involving a person located in Indiana;
  • engage in bookmaking either in Indiana or in a transaction directly involving a person located in Indiana;
  • maintain, on an internet site accessible to residents of Indiana, the equivalent of:
    1. slot machines;
    2. one-ball machines or variants of one-ball machines;
    3. pinball machines that award anything other than an immediate and unrecorded right of replay;
    4. roulette wheels;
    5. dice tables; or
    6. money or merchandise pushcards, punchboards, jars, or spindles;
  • conduct lotteries or policy or numbers games or sell chances in lotteries or policy or numbers games in Indiana or in a transaction directly involving a person located in Indiana;
  • conduct any banking or percentage games played with the computer equivalent of cards, dice, or counters, or accept any fixed share of the stakes in those games in Indiana or in a transaction directly involving a person located in Indiana;
  • accept, or offer to accept, for profit, money or other property risked in gambling in Indiana or in a transaction directly involving a person located in Indiana; or
  • commit professional gambling over the internet, a Level 6 felony.

Possession of Electronic Gaming Device; Maintaining a Professional Gambling Site (See IC 35-45-5-3.5)

  • Except as provided in the following statements, a person who possesses an electronic gaming device commits a Class A infraction.
  • A person who knowingly or intentionally accepts or offers to accept for profit, money, or other property risked in gambling on an electronic gaming device possessed by the person commits maintaining a professional gambling site, a Level 6 felony. However, the offence is a Level 5 felony if the person has a prior unrelated conviction under this subsection.
  • Subsection (a) does not apply to a person who:
    1. possesses an antique slot machine;
    2. restricts display and use of the antique slot machine to the person's private residence; and
    3. does not use the antique slot machine for profit.
  • As used in this section, "antique slot machine" refers to a slot machine that is:
    1. at least forty 40 years old; and
    2. possessed and used for decorative, historic, or nostalgic purposes.

Promoting Professional Gambling (See IC 35-45-5-4)

  • a person who knowingly or intentionally owns, manufactures, possesses, buys, sells, rents, leases, repairs, or transports a gambling device, or offers or solicits an interest in a gambling device:
    1. before a race, game, contest, or event on which gambling may be conducted, knowingly or intentionally transmits or receives gambling information by any means, or knowingly or intentionally installs or maintains equipment for the transmission or receipt of gambling information; or
    2. having control over the use of a place, knowingly or intentionally permits another person to use the place for professional gambling; or
  • commits promoting professional gambling, a Level 6 felony. However, the offence is a Level 5 felony if the person has a prior unrelated conviction under this section.

The Criminal Code Exempts the Following from Criminal Penalty (See IC 35-45-5-7 Through 12)

  • Pari-mutuel wagering conducted at racetrack locations or satellite facilities licensed for pari-mutuel wagering under IC 4-31.
  • Wagering on horse races conducted through advance deposit wagering accounts authorised by IC 4-31-7.5.
  • The sale of lottery tickets authorised by IC 4-30.
  • The sale or use of gambling devices authorised under IC 4-32.3.
  • Riverboat gambling authorised by IC 4-33.
  • A gambling game authorised by IC 4-35.

The following gambling games are licensed or authorised under IC 4-36:

  • Raffles and winner take all drawings conducted under IC 4-36-5-1.
  • Type II gambling games.

Also excluded under this code is the prize linked savings programme that:

  • is offered or conducted by an eligible financial institution under IC 28-1-23.2;
  • is offered or conducted by a credit union organised or reorganised under US law and conducted in the same manner as a prize linked savings programme under IC 28-1-23.2; or
  • is offered or conducted by an insured depository institution (as defined in 12 USC 1813) that is:
    1. a national bank formed under 12 USC 21;
    2. a state member bank (as defined in 12 USC 1813);
    3. a state nonmember bank (as defined in 12 USC 1813); or
    4. a savings association (as defined in 12 USC 1813).
  • is conducted in the same manner as a prize linked savings programme under IC 28-1-23.2.

Sports wagering is conducted under IC 4-38.

The definition of “Unlawful Gambling” at Ind. Code 35-45-5-2 is “ A person who knowingly or intentionally engages in gambling commits unlawful gambling:

  • Except as provided in subsection (c), unlawful gambling is a Class B misdemeanour.
  • An operator who knowingly or intentionally uses the Internet to engage in unlawful gambling:
    1. in Indiana; or
    2. with a person located in Indiana.
  • commits a Level 6 felony.”

As noted above, the IGA will convene the 2023 legislative session in January. At that time, it is widely expected that a bill legalising igaming and ilottery will be introduced. Last year, during the 2022 legislative session, House Bill 1356 was introduced, which would have legalised igaming, but that failed to pass. In addition, House Enrolled Act 1260 (2022), which did pass and was signed by the governor, eliminated the authority of the Hoosier Lottery to implement ilottery without legislative approval.

The Indiana Gaming Commission oversees all forms of regulated gambling, charity gambling, fantasy sports, and sports wagering. The Hoosier Lottery oversees the state lottery. (See IC 4-33-4).

Indiana is primarily a risk-based gaming regulatory jurisdiction. The IGC’s enabling statute calls for the agency to maintain “the public's confidence and trust” through “comprehensive law enforcement supervision” and “strict regulation of facilities, persons, associations and gambling operations.” (See IC 4-33-1-2). Consistent with this mandate, the IGC holds its licensees to a high standard and places substantial focus on regulatory compliance. This includes civil/monetary penalties for regulatory violations that the agency determines are important to ensuring the public’s confidence and trust in the gaming industry.

There are no significant recent or forthcoming changes to Indiana’s licensing or regulatory framework. However, in the third quarter of 2022 the IGC made some adjustments to the application process for sports wagering vendor applicants – placing a renewed emphasis on submission of draft internal controls and independent test lab certification prior to allowing submission of Level 1 occupational licence applications. The agency released updates to its “Gaming Entity Licensing Guidance” in October of 2022 and is expected to release an updated version of corporate licensing application(s) prior to the end of CY'22.

There are several types of licenses that are applicable to gaming and gambling and are listed below.

Casino Gaming

Licences required for casino gaming include:

  • Casino owner’s licence.
  • Supplier licence.
  • Occupational licence (levels 1-3).
  • Junket operator and junketeer certificate registration.

Sports Wagering

Sports wagering requires the following licences:

  • Sports wagering certificate of authority (to be held by a casino licensee offering sports wagering).
  • Sports wagering vendor (often referred to as a sports wagering “operator” in other jurisdictions).
  • Sports wagering service provider.
  • Supplier licence.
  • Occupational licence (levels 1-2).
  • Sports wagering registration.

Daily Fantasy Sports

Licensing requirement for daily fantasy sports is:

  • Paid fantasy sports operator licence.

There are currently no casino owner licences available.

Of 45 available sports wagering skins (sports wagering vendor licences), 23 are available.

See publicly available lists of IGC licensees on the IGC’s website at the links found here:

Sports wagering vendor licences are granted without time constraint but are subject to annual renewal.

Casino owner’s license applicants and sports wagering vendor license applicants are subject to the highest licensing thresholds. The relevant corporate licence applications involve detailed disclosures related to the business and corporate structure of the applicant and all of the applicant’s substantial owners, including individuals owning 5% or more in the applicant. (See IC 4-33-6; 4-38-6).

The applications for a casino owner’s licence and a sports wagering vendor licence are very similar in terms of substance and required detail.

Key Persons (including any person identified as such by the IGC, 5%+ owners, board members, and certain executives) associated with casino owner licensees, sports wagering vendor licensees, and supplier licensees, are subject to submission of a level-1 licence application, also referred to in Indiana as a PD-1 application. This is the highest level of occupational licence, and requires significant personal history disclosures, fingerprinting, submission of personal identification, criminal history and background checks. (See IC 4-33-8; 68 IAC 27-2-16; 68 IAC 2-3-1).

Shareholders of 5% or greater are subject to level-1 licensing, as detailed above. Corporate shareholders owning 5% or greater that do not qualify as Institutional Investors will be subject to disclosures at the same level as operators.

Publicly available licensing forms can be found on the IGC’s website at the following link.

While there is no set timescale for the review and approval of any licence applications, all licences are subject to receipt of temporary approvals. The IGC has the option to issue a temporary licence once it has received and preliminarily reviewed an application, which essentially allows the applicant to function as if they had received a permanent licence. In any case, at least one month should be factored into timing considerations for operator-level licence and level-1 occupational licence applications to be preliminarily reviewed. Permanent licences may take several months to arrive, but temporary licences provide the same functionality.

There are a number of fees associated with the application for a licence, including:

  • Casino owner’s licence – Application Fee: USD50,000 (+ any investigations costs greater than this amount) + Licence Fee: USD25,000.
  • Supplier’s licence – Application Fee: USD5,000 (+ any investigations costs greater than this amount).
  • Level-1 Occupational licence – Application Fee: USD1,000.
  • Level-2 Occupational licence – Application Fee: USD200.
  • Level-3 Occupational licence – Application Fee: USD75.
  • Sports wagering certificate of authority – Initial Fee: USD100,000.
  • Sports wagering vendor licence – Application Fee: USD100,000 (+ any investigations costs greater than this amount).
  • Sports wagering service provider – Application Fee: USD10,000.       
  • Sports wagering registrant – Application Fee: USD500.

(See IC 4-33-6; 4-33-7; 4-33-8; 4-38-6; 4-38-7; 4-38-8; 68 IAC 27-2; 2-1).

Listed below are the annual fees that apply:

  • Casino owner’s licence – renewal fee: USD5,000.
  • Supplier’s licence – annual licence Fee: USD7,500.
  • Level-1 occupational licence – annual license fee: USD100.
  • Level-2 occupational licence – annual license fee: USD50.
  • Level-3 occupational licence – annual license fee: USD25.
  • Sports wagering certificate of authority – annual administrative fee: USD50,000.
  • Sports wagering vendor licence – renewal fee: USD50,000.

(See IC 4-33-6; 4-33-7; 4-33-8; 4-38-6; 4-38-7; 4-38-8; 68 IAC 27-2; 2-1).

Indiana effectively has 13 casino licensees operating throughout the state, which are determined by geography. (See IC 4-33-6). Specifically, Indiana hosts 13 commercial casino licensees (including a casino in Vigo County, which is under construction), including in that number two horse racing tracks and one casino in a “historic hotel district.” In addition, Indiana is home to one tribal casino operated by the Pokagon Band of Potawatomi Indians, as well as three off track betting parlours. The number of casino owner’s licences available is statutorily regulated and subject to geographical restrictions.

In 2015, Indiana law changed to permit Riverboat licensees to relocate their gaming operations from excursion boats to inland casinos so long as the requirements of IC 4-33-6-24 were met. The biggest changes to gaming in Indiana, however, came out of the state’s 2019 gaming bill that, among other things, legalised sports wagering in Indiana (House Enrolled Act 1015 (2019) or HEA 1015).

In addition to legalising sports wagering, HEA 1015 expanded the definition of “gambling game” found at IC 4-35-2-5 to include table games, which permitted both of the two Racino licensees to offer table games – both of which were previously limited to slot machines only. IC 4-35-2-5. HEA 1015 also permitted the holder of the two Gary Riverboat licences to move the gaming operations of one license to an inland location within the Gary city limits, so long as certain requirements were met, including the payment of fees and the relinquishment of the other Gary Riverboat licence (which did subsequently occur). (See IC 4-33-6-4.5).

Once one of the Gary Riverboat licences was relinquished, the IGC was charged with accepting applications and awarding that license to a new Riverboat licensee to operate an inland casino in Terre Haute, Vigo County, Indiana. (See IC 4-33-6.7-1). The IGC has since awarded that license and expects the Vigo County inland casino to be up and running in late 2023.

Indiana does not differentiate licence types on the basis of B2C/B2B.

Indiana does not differentiate licence types on the basis of B2C/B2B.

For sports wagering, any company that meets the definition of “Affiliate” at 68 IAC 27-1-2(3), "an individual or entity who utilises an internet website to promote and direct patrons to sports wagering internet websites in exchange for a commission or fee." When such companies are under contract with an existing IGC applicant or licensee, they may pro-actively submit to the IGC a sports wagering registration application in advance and operate as such licensee. (See 68 IAC 27-2-19).

Indiana does not differentiate licence requirements for white label providers – for any company working or partnering with an Indiana sports wagering vendor, the company must complete the IGC’s "gaming entity inquiry form" and receive from the IGC a specific licence determination (or a determination that no licence is required). Exceptions to this rule include companies that qualify as “Affiliate,” (as noted above) which may skip the inquiry process and pro-actively submit a sports wagering registration application.

A link to the Gaming Entity Inquiry can be found here.

As noted above, it is expected that, during the 2023 legislative session, the Indiana general assembly will introduce legislation to legalise igaming and ilottery in the State of Indiana. Last year, House Enrolled Act 1260 prohibited the Hoosier Lottery from implementing ilottery without approval from the IGA.

The IGC works with each sports wagering vendor to ensure technology measures are in place to satisfy regulatory requirements related to “know your customer” measures, anti-money laundering, geolocation, and patron protection. (See 68 IAC 27-11; 27-5; 270502(H)).

Indiana, like most jurisdictions, requires a person to be 21 before they can make a wager at a gaming facility. (See IC 4-33-9-13).

Additionally, the legislature tasked the IGC with adopting rules to establish and administer a voluntary exclusion programme (VEP). See IC 4-33-4-3. Individuals who sign up for the VEP agree to refrain from entering any gaming facility under the jurisdiction of the IGC. Penalties for violating the terms of the VEP can be severe and include forfeiting jackpots or other winnings as well as facing potential criminal charges for trespass. (See 68 IAC 6-3-2).

The IGC also has broad authority to place an individual on its statewide exclusion list. See IC 4-33-4-7. Unlike the VEP, one’s placement on the statewide exclusion list is not voluntary; rather, it is reserved for those that conduct themselves in a way that may “call into question the honesty and integrity of the gambling operations; or interfere with the orderly conduct of the gambling operations.” (See IC 4-33-4-7 and 68 IAC 6-1 et seq).

Finally, Indiana disincentivises problem gaming by requiring gaming facilities to implement internal controls to forfeit the winnings of patrons that have outstanding child support obligations. See IC 4-33-4-27 and 68 IAC 11-9-2. A patron that attempts to circumvent any child support obligations by using a proxy to collect their winnings could end up on the statewide exclusion list and face a Level 6 felony charge. (See 68 IAC 6-1-3 and IC 4-33-10-2).

The most recent changes to Indiana’s responsible gaming initiatives revolve around the implementation of sports wagering, which largely mirror the protections mentioned above. Like traditional casino gaming, an individual must be 21 before they can participate in sports wagering in Indiana. (See IC 4-38-5-11). Since the introduction of mobile sports wagering, the IGC has promulgated rules that place the onus on sports wagering operators to validate their customers’ identity (“know your customer” or KYC) and ensure that they are at least 21 years of age. (See 68 IAC 27-12-2 and 68 IAC 27-12-4).

As a sister programme to the VEP, the IGC has also created a statewide internet self-restriction programme, which allows an individual to self-ban themselves from online sports wagering for a period of one or five years. (See 68 IAC 27-13-2). Sports wagering operators must ensure that internet self-restricted patrons:

  • are unable to access their online sports wagering accounts; and
  • do not receive any direct market materials.

Individuals that are on the IGC’s statewide exclusion list are also considered “prohibited sports wagering participants,” and are ineligible to participate in sports wagering in Indiana. (See 68 IAC 27-1-2 and 68 IAC 27-14-2). Sports wagering operators may not knowingly accept a wager from a prohibited sports wagering participant.

Like traditional gaming, sports wagering operators must also ensure that individuals that win amounts over a certain threshold are current on any child support obligations and must withhold any amounts that are indebted. (See IC 4-38-11-1 and 68 IAC 27-7-11).

The most comprehensive gambling management tools that Indiana offers are its two self-exclusion programmes – the VEP and the internet self-restriction programme, both of which provide for a complete and total ban from Indiana casinos and internet sports wagering, respectively. (See IC 4-33-4-3 and 68 IAC 27-13-2).

Information regarding both of these programmes, including how to sign up, are included on the IGC’s website and can found clicking on this link.

Additionally, for internet sports wagering, IGC regulations require sports wagering operators to provide easy methods for players to place limitations on the amounts they can deposit into their accounts. See 68 IAC 27-12-3. Sports wagering operators must also provide participants with information about the risks associated with excessive wagering. Id.

Every sports wagering operator must display a responsible gaming logo that includes the phone number for problem gambling (1-800-9-WITH-IT) and a direct link to Indiana’s problem gambling website namely Indianagamblinghelp.com, which is dedicated to helping people with potential gambling problems. (See 68 IAC 27-13-1). Finally, the IGC’s website includes a plethora of resources for those who think they may have a gambling problem, including self-assessments and treatment centre information (see link above).

Money laundering is criminalised in Indiana under IC 35-45-15 et seq, which provides that a person who knowingly or intentionally acquires the proceeds from crime and expends or offers to expend them commits money laundering, a Level 6 felony.

Indiana first introduced anti-money laundering regulations prior to sports wagering going live. Through this regulation, the IGC mandated that all sports wagering operators submit internal control procedures for a description of the sports wagering operators anti-money laundering standards, which must include limitations that are placed on anonymous wagering that takes place at any sports wagering kiosk. (See 68 IAC 27-5-2).

In recent years, several bills have been introduced (most recently, House Bill 1337 in 2022) in the Indiana General Assembly that would legalise igaming. Should igaming become legal in Indiana, the IGC would likely introduce AML regulations like its sports wagering regulations and require igaming operators to implement strict anti-money laundering and KYC internal controls.

Sports wagering operators are responsible for adopting internal controls to combat money laundering efforts. 68 IAC 27-5-2. Sports wagering operators are also required to put procedures in place to assist with “identifying and reporting fraud and suspicious conduct including identifying unusual betting activity and reporting such activity to an independent integrity monitoring provider” as well as procedures for accepting and paying out wages in excess of USD10,000. Id.

Regarding sports wagering participants’ accounts, players are prohibited from transferring funds from one patron account to another patron account. See 68 IAC 27-12-7. Also, sports wagering operators must temporality block and investigate a player’s account after five consecutive failed ACH deposit attempts within a ten-minute time period. See 68 IAC 27-12-6. Sports wagering operators also have a responsibility to re-verify a player’s identification upon reasonable suspicion that his or her identification has been compromised. See 68 IAC 27-12-9.

In addition to AML efforts, the IGC has placed KYC requirements on sports wagering operators. For instance, before creating a sports wagering account, an individual must include, at a minimum, the following information:

  • legal name;
  • date of birth;
  • social security number (or last four digits);
  • account number or user name;
  • residential address (no PO Boxes permitted);
  • email address; and
  • telephone number.

(See 68 IAC 27-12-4). The combined efforts of placing limitations on individual player accounts, along with thorough KYC requirements, are the IGC’s primary AML tools. (See 68 IAC 27-12-1 et seq).

The IGC has broad authority for the purposes of administering, regulating, and enforcing the system of gambling in Indiana. (See IC 4-33-4-1, IC 4-35-4-1, and IC 4-38-1-4).

These responsibilities include ensuring that casino licensees and sports wagering operators take the proper steps to cease any direct marketing to any VEP participants or prohibited sports wagering participants, respectively. (See IC 4-33-4-3, IC 4-35-4-2, and 68 IAC 27-13-4).

While neither “advertising” nor “marketing” is defined by any relevant statute or regulation, Indiana does require entities that provide sports wagering marketing services (see discussion on “Affiliates”) to register with the IGC. Sports wagering operators must conduct commercially reasonable background checks on registrants they partner with, including due diligence on the registrant’s criminal history, character, and reputation. (See 68 IAC 27-2-19).

The key legal, regulatory, and licensing provisions related to advertising and marketing revolve around the obligation that casino licensees and sports wagering operators have to ensure that members of the VEP and internet self-restriction programme, respectively, do not receive direct marketing materials. (See IC 4-33-4-3, IC 4-35-4-2, and 68 IAC 27-13-4).

Casino licensees must establish internal controls to make sure that no members of the VEP receive direct market materials. Once a casino licensee receives an updated list of the VEP members, it must cease all direct marketing to those individuals within 45 days. (See 68 IAC 6-3-4).

Likewise, sports wagering operators and paid fantasy sports game operators must take reasonable measures to ensure that a prohibited sports wagering participant does not receive direct marketing from the sports wagering operator. See 68 IAC 27-13-4 and 68 IAC 26-8-2. Sports wagering operators and paid fantasy sports game operators also have 45 days to remove a prohibited sports wagering participant from its direct marketing list once they receive an updated list. Id. Sports wagering operators are also responsible for the actions of any third-party business partners that they may contract with, including any marketing partners. (See 68 IAC 27-13-2).

Indiana does not permit a sports wagering operator to “participate in any false or misleading advertising concerning its sports wagering operations”. Additionally, sports wagering operators must:

  • not directly advertise or promote sports wagering to minors;
  • provide the following message: “if you or someone you know has a gambling problem and wants help, call 1-800-9-WITH-IT”;
  • provide notice that sports wagering participants must be 21 or older to participate;
  • not imply greater chances of winning versus other sports wagering operators;
  • not imply greater chances of winning based on wagering in a greater quantity or amount; and
  • allow patrons to unsubscribe from direct marketing. (See 68 IAC 27-7-17).

Also, a paid fantasy sports operator is not permitted to advertise in a medium that is aimed predominately at minors. Additionally, paid fantasy sports operators cannot promote fantasy sports at:

  • elementary schools;
  • high schools; or
  • sports venues used exclusively for elementary or high school athletics. (See IC 4-33-24-30 and 68 IAC 26-2-2).

The IGC has broad authority to take appropriate administrative enforcement or disciplinary action against the licensees that fall under its jurisdiction. These powers include the ability to revoke or suspend any licences the IGC has issued. (See IC 4-33-4-1, IC 4-35-4-1, and IC 4-38-1-4).

In addition to the broad authority the IGC possesses, casino licensees are specifically subjected to disciplinary action under 68 IAC 13 for, inter alia, “knowingly refusing to withhold direct marketing, check cashing, and credit privileges” to members of the VEP. (See 68 IAC 6-3-4).

As discussed in Section 8.2 above, if igaming becomes legal in Indiana, the IGC would likely introduce regulations like its sports wagering regulations and require igaming operators to implement internal controls to guide marketing practices. In order to ensure the public’s confidence and trust in Indiana’s gaming industry, strict regulation and oversight is required. Therefore, as gaming continues to become a more mobile, accessible, and customisable experience, the IGC will likely continue to prioritise ensuring that gaming operators are not marketing to underage or voluntarily prohibited patrons. (See IC 4-33-1-2).

For publicly traded companies, if 5% or more interest in an applicant or licensee, such transfer must be approved by the IGC within 45-days of acquiring the interest, and the IGC will likely require that the new owner complete an ownership transfer application similar in detail to the casino owner /sports wagering vendor/supplier application threshold. IGC licensing will also apply to any key persons and/or substantial owners of the new owner. (See 68 IAC 5-1).

In the case of private companies, the IGC must approve the transfer of ownership in an applicant or licensee PRIOR to the closing of the transfer transaction. The new 5% owner will possibly be subject to the highest level of licensing, including its key persons (level-1 occupational licensing) and its substantial owners. (See 68 IAC 5-2).

A transfer of ownership interest of 5% or more in an applicant or licensee of the IGC triggers the above ownership transfer requirements. Changes in corporate control of an applicant or licensee must be reported to the IGC, and new persons in control will be subject to licensing at the discretion of the IGC. (See 68 IAC 5; 68 IAC 27-2-11).

Passive investors that meet the definition of “institutional investor,” but hold between 5-15% ownership of a licensee may complete an institutional investor form and avoid full licensing requirements. The definition of institutional investor includes any:

  • "retirement fund administered by a public agency for the exclusive benefit of federal, state, or local public employees;
  • investment company registered under the Investment Company Act of 1940 (15 USC 80a);
  • collective investment trust organised by banks under Part Nine (9) of the rules of the Comptroller of the Currency;
  • closed end investment trust;
  • chartered or licensed life insurance company or property and casualty insurance company;
  • banking, chartered, or licensed lending institution;
  • investment adviser registered under the Investment Advisors Act of 1940 (15 U.S.C. 80b); or
  • other entity the commission determines constitutes an institutional investor.

that acquires voting or nonvoting units in the ordinary course of its investment business and holds those units for investment purposes only and not for the purpose of causing, directly or indirectly, the election of a majority of the board of directors or any change in the corporate charter, bylaws, management, policies, or operations of the business entity in which it holds those securities."

(See 68 IAC 1-1-52).

The IGC has broad administrative authority to enforce civil sanctions for regulatory violations. See IC 4-33-4-8. The IGC also employs gaming control officers and gaming agents who are full law enforcement officers with statutorily granted police powers. See IC 4-33-20-3; IC 4-33-20-9; IC 4-33-4.5-1. The IGC does not have criminal enforcement or prosecutorial authority, but it may issue subpoenas for attendance of witnesses and/or for production of documents. (See IC 4-33-4-1).

The IGC has traditionally and primarily enforced regulatory requirements through an informal administrative/negotiation process, typically resulting in settlement agreements between licensees and the agency for:

  • payment of civil fees; or
  • suspension or restriction of licence(s).

In all cases, the severity of enforcement mechanisms varies depending on the nature and scope of the violation(s) at issue. On a less frequent basis, the IGC has also exercised its authority to commence formal administrative procedures in order to revoke or terminate individual and/or corporate licence.

The IGC does not publish a publicly available fine or fee schedule, but the agency endeavours to ensuring that civil penalties and settlements reflect a uniform application of regulatory standards for similarly situated offences. The IGC publishes all final settlement agreements on the agency website, which can be accessed by clicking here.

At all times the agency retains subjective discretion to issue civil penalties it sees fit based on relevant facts. Such financial penalties are statutorily capped at the greater of:

  • USD10,000; or
  • an amount equal to the licensee’s daily gross receipts for the day of the violation at issue.

(See IC 4-3-4-8).

Personal sanctions for individuals holding an occupational licence issued by the IGC may include suspension, revocation, or restriction of a licence as well as a civil penalty of up to USD5,000. (See IC 4-33-4-8).

As noted above, Indiana law does not prohibit social gaming. Therefore, the IGC will decide whether or how to regulate concepts as they arise. (See IC 4-38-5-4).

Betting on esports is specifically prohibited under Indiana law. There has been very little discussion of changing this law. (See IC 4-38-5-4).

Fantasy sports continue to operate under the original framework in the state of Indiana with little discussion of any intended changes.

The only trend we have seen related to skill-based gaming is a potential trend in companies seeking to raise the threshold for prizes associated with skill games to possibly implement “grey market” games without explicit legislative authorisation.

Although it has been reported anecdotally that the IGC will continue to study cryptocurrency and related concepts, no progress been made in this regard.

There are specific gambling tax rates in the state of Indiana such as the following.

Casino Gaming

Graduated wagering tax (see IC 4-33-13)

For a riverboat that received at least USD75,000,000 of adjusted gross receipts during the preceding state fiscal year:

  • For state fiscal years beginning after 30 June 2021, 10%, of the first USD25 million of adjusted gross receipts received during the period beginning 1 July of each year and ending 30 June of the following year.
  • 20% of the adjusted gross receipts in excess of USD25 million but not exceeding USD50 million received during the period beginning 1 July of each year and ending 30 June of the following year.
  • 25% of the adjusted gross receipts in excess of USD50 million but not exceeding USD75 million received during the period beginning 1 July of each year and ending 30 June of the following year.
  • 30% of the adjusted gross receipts in excess of USD75 million but not exceeding USD150 million received during the period beginning 1 July of each year and ending 30 June of the following year.
  • 35% of all adjusted gross receipts in excess of USD150 million but not exceeding USD600 million received during the period beginning 1 July of each year and ending 30 June of the following year.
  • 40% of all adjusted gross receipts exceeding USD600 million received during the period beginning 1 July of each year and ending 30 June of the following year.

For a riverboat that received less than USD75 million of adjusted gross receipts during the preceding state fiscal year:

  • For state fiscal years beginning after 30 June 2021, 2.5% of the first USD25 million of adjusted gross receipts received during the period beginning 1 July of each year and ending 30 June of the following year.
  • For state fiscal years beginning after 30 June 2021, 10% of the adjusted gross receipts in excess of USD25 million but not exceeding USD50 million received during the period beginning 1 July of each year and ending 30 June of the following year.
  • For state fiscal years beginning after 30 June 2021, 20% of the adjusted gross receipts in excess of USD50 million but not exceeding USD75 million received during the period beginning 1 July of each year and ending 30 June of the following year.
  • 30% of the adjusted gross receipts in excess of USD75 million but not exceeding USD150 million received during the period beginning 1 July of each year and ending 30 June of the following year.
  • 35% of all adjusted gross receipts in excess of USD150 million but not exceeding USD600 million received during the period beginning 1 July of each year and ending 30 June of the following year.
  • 40% of all adjusted gross receipts exceeding USD600 million received during the period beginning 1 July of each year and ending 30 June of the following year.
  • The licensee shall pay an additional tax of USD2.50 million in any state fiscal year in which the riverboat's adjusted gross receipts exceed USD75 million. The additional tax imposed is due before 1 July of the following state fiscal year.

Sports Wagering (See IC 4-38-10)

A sports wagering tax is imposed on the adjusted gross receipts received from authorised sports wagering at a rate of 9.5%.

Aside from potential for legislative changes authorising iGaming and iLottery, which are expected to be considered in 2023, Indiana is not likely to undergo any significant regulatory reform.

Bose McKinney & Evans

111 Monument Circle
Ste. 2700
Indianapolis
IN 46204
USA

+1 (317) 684-5000

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Law and Practice

Authors



Bose McKinney & Evans is a business law firm, serving both publicly held and privately held businesses, governmental entities and high-growth industries. Nearly seven decades after Lew Bose founded the firm, his successors continue to embrace the founding principles, remaining dedicated to responsiveness, innovation and excellence. The seven members of the Bose McKinney & Evans Gaming Group possess a deep understanding of the commercial, tribal, lottery, and online/mobile gaming industries, as well as the Indiana, Midwestern and broader gaming regulatory landscapes. Our professionals have been heavily involved in the gaming industry since 1993, when Indiana’s casino gaming law was initially passed, and have years of experience in state government and administration that make them well-suited to provide exemplary regulatory compliance, licensing, and related corporate and administrative law services to gaming operators, lotteries, lenders, investors, gaming equipment suppliers, technology suppliers and more.

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