“Money makes it real.” – Booth, from Topdog/Underdog by Suzan-Lori Parks

There’s a powerful scene in the great play by Suzan-Lori Parks, “Topdog/Underdog,” two brothers, Lincoln and Booth, are entwined in a generational struggle to make sense of who they are and to avoid seemingly inevitable tragedy, as their names imply. In the climactic scene involving a game of three-card monte, a classic game of chance, a game that is played only for amusement seems hollow and fake. Booth accuses Lincoln of not playing “for real.” They’re “missing the essential element.” Booth says, “Money makes it real.” Money then is wagered on both sides leading to the play’s tragic finale.

The regulatory legal practice of those advising clients on sweepstakes and contests has historically been all about avoiding lotteries and gambling. Yet, in some ways, and even under the law of many U.S. jurisdictions, sweepstakes and contests are a form of lottery or gambling, just not the illegal kind. The line between lawful and unlawful lotteries and prize competitions is sometimes clear and sometimes not. Sometimes a merchant will take a well-trodden path with a promotional structure that the public recognizes clearly as a classic promotional giveaway. Sometimes, a merchant will want to tap into that “essential element,” the gambling spark, delivering a sense of excitement, of something “real.” And sometimes, as this article from the Washington Post explains, there are businesses that have merged the concepts of sweepstakes and gambling so thoroughly that they’re barely distinguishable.

The gambling spark is even more sought after today than it was less than a decade ago. That’s because gambling is everywhere. Not just promotions with gambling themes. Real, live gambling. And, it’s increasingly legal throughout the U.S. Concerns about the “gambling instinct” or the “public nuisance” of gambling seem quaint when we have online casinos and sports books advertising constantly and where states are heavily invested in building out their licensing regimes to accommodate the demand for gaming.

There are video games that offer real-world prizes and allow for money payments to play games ostensibly consisting of skill-based activities. These “social” games are sometimes licensed as gaming devices depending on how they operate and the individual state, and sometimes they are simply played on your phone, linked to a bank account, and played for real money. As described in the Post article, some so-called “sweepstakes games” purport to offer “free” games of chance for real-world prizes, using “free” tokens obtained with the purchase of other in-game tokens that can be used for playing games of chance that do not award real-world prizes. Such “free” tokens usually can be obtained without purchase with an “alternative method of entry.” Thus, on the surface the traditional “open participation” model of a traditional commercial sweepstakes is being used to create the impression of mere promotion marketing. But, as the article relates, the structure of such “sweepstakes games” appears to be a hair’s breadth away from virtually unregulated online gaming, with all of the attendant social and potentially legal implications.