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Royal Decree on gambling advertising “absolutely unjustifiable”

Royal Decree on gambling advertising “absolutely unjustifiable”

Eduardo Morales Hermo, Gambling & Betting Consultant at iGamingCo

At long last, the Spanish government has approved the Royal Decree that establishes highly restrictive and, to a certain extent, prohibitive measures for advertising and commercial activities of online gambling businesses legally operating in Spain based on Law 13/2011.

As with other political decisions, the government of Spain approved the Royal Decree that will come into force with its publication in the Official State Gazette, taking advantage of a pandemic that has plunged the country into a deep health crisis and especially in a serious economic crisis that will last for many years.

Without justification and lacking any scientific and statistical support, the government, through the Ministry of Consumer Affairs, has implemented a series of absolutely unjustifiable measures that will favor the transfer of a significant volume of demand for online gambling and betting to offshore operators that lack licenses, guarantees for consumers and any regulatory oversight over compliance – both technological and fiscal and responsible gaming.

The resulting lack of a level playing field, combined with high direct taxation and far-reaching restrictions on advertising and other activities that are necessary and intrinsic to online gambling and betting for licensed operators, will cause a significant reduction in the number of players that will make use of the regulated offering and the transfer of market share to black-market competitors.

The justifications for the new measures lack truth and are unsupported by the data. The decisions by the Ministry of Consumer Affairs will have consequences contrary to what is intended: a classic example of shooting oneself in the foot.

With this Royal Decree, the government of Spain has become a de facto ally of unlicensed, offshore gambling operators, seriously damaging the competitiveness of the legally authorized operators with licenses in force based on Law 13/2011.

Below, we will summarize the main provisions established by the Royal Decree:

General restrictions and prohibitions

Broadcast advertising for online gambling and betting will only be allowed between 1AM and 5AM.

It is thus prohibited to broadcast gambling advertising during sporting events that take place outside these hours.

The offering of bonuses or similar promotions to attract new players is prohibited.

Operators may only target registered and verified customers and never people deemed to be at risk.

Sports clubs may not sign sponsorship contracts with online gambling or betting operators that would display advertising on shirts, equipment, or stadium billboards.

The sending of gambling advertising by postal mail is prohibited. Gambling advertising sent by email is only permitted with the explicit consent of the addressee and in no case may be targeted at people who are considered at risk.

Outdoor advertising must comply with the provisions of the Royal Decree and the regulations established by each Autonomous Community.

Advertising on the internet must be done through the web pages of the game operators.

Transitional deadlines

For sponsorship contracts already signed and that are in force when the Royal Decree enters into force, a transitional period is established that ends coinciding with the end of the sports season in August 2021, without prejudice to the agreements between clubs and operators that extend beyod that date.

Both the measures that prohibit promotional bonuses and the new regulation of advertising on the internet will have a transitional period leading up to their final entry into force on May 1, 2021.

Advertising campaigns featuring famous or popular people may be broadcast until April 1, 2021, if a contract specifying such was already in force at the time the Royal Decree became law.

Other advertising contracts that were signed before the entry into force of the Royal Decree, may be fulfilled until August 30, 2021.

Social networks

On social networks, operators can only issue advertising messages to their followers. On video exchange platforms, advertising is relegated to the same time slots as broadcast advertising.

To protect minors, parental control is established through mechanisms that identify games of chance as a separate category in online advertising.

Operators must have instruments in place that guarantee that their advertising is not directed at minors.

Famous people may not appear in any advertising.

False or misleading perceptions of gratuity, customer testimonies, or the impression that the outcome of a game is based on skill are explicitly banned from all forms of advertising.

Gaming operators will be responsible for third-party compliance with these measures.

Non-compliance may be sanctioned with fines of between €100,000 and €1,000,000 and with a license suspension for a maximum period of six months.

A serious distortion of a well-regulated commercial activity

Some of the provisions contained in the Royal Decree are limitations and restriction on common advertising activities that are necessary to carry out an activity such as online gambling and betting. As a result, licensed operators are further limited in their ability to compete with black market operators that do not pay taxes or meet the necessary compliance, AML, or player protection standards. By weakening the position of licensed operators, the Spanish online market will thus become increasingly attractive to unregulated, illegal operators.

The Royal Decree demonizes and even criminalizes the activity of gambling and betting without reason, without arguments that provide evidence to justify these measures, which rather seem to be the result of an ill-will and political opportunism against a lawful and perfectly regulated activity, which – although always susceptible to improvement – now faces unjustified capricious actions and restrictions instead.

It is without a doubt an infringement on the freedom of business, as well as an attack against the legitimate interests of legally established companies that operate with licenses granted by the government based on a law established by the same. Moreover, these companies have made large technological investments in businesses that employ highly qualified technical employees in a segment that is one of the most advanced in technology development and innovation.

Irreparable economic damage is being inflicted on companies that have signed service, advertising and commercial contracts based on established regulation. This uncertainty leads the industry to a situation that is contrary to the minimum respect due to existing rights granted by legislation and that changes, in an abrupt way, the conditions established by laws on the basis of which entrepreneurs have started their businesses and signed agreements to further develop them.

The Royal Decree that comes into force is also discriminatory and establishes a division between “good” gambling and “bad” gambline, not applying the same rules to public gambling – SELAE or ONCE – whose activities in sponsorship and advertising is exponentially more important and invasive than that carried out by online gambling and betting operators and the gambling industry in general.

It is scandalous that the government virtually eliminates advertising by online gambling and betting operators, while allowing the promotion of the gambling offerings of SELAE and ONCE through all channels without limitations on even the messages that promise enrichment or solutions to life problems to those who participate in their games. Moreover, the advertising spend of these (semi-)public operators is far higher than that of online operators.

Contradicting some of the assertions by the Minister for Consumer Affairs, SELAE and ONCE not only offer “harmless” traditional lottery products, but also instant games – scratch cards and similar products – that are nothing but slot machine simulations. These operators, moreover, use the underage in their televised draws and broadcast their advertisements and draw results during the hours when children are watching television.

There is also a major inbalance in gambling particpation between (semi-)public and private operators. More than 30 million consumers participate in SELAE or ONCE games, while an estimated 10 million consumers participate occasionally in games that are offered by private operators, of which only 1.5 million participate in online gamblig and betting.

There are many other examples of discrimination against private gambling compared to state-sponsored gambling.

Furthermore, the public health crises referred to by the current Minister of Consumer Affairs only exists in his mind. There is no evidence whatsoever that confirms its existence. The Minister even admits that he has no data to support his assumptions regarding the existence of this “crisis.”

Not even the ongoing Covid-19 pandemic and resulting lockdown offer support for the supposition that gambling is a growing public health risk. The statistics are clear: the lockdown has not led to an increase in consumer spending on gambling products. This conclusion applies to all types of gambling: land-based, digital, as well as the major lotteries. All operators are suffering from the economic and social impact of the pandemic.

Finally, with respect to the supposed increase in problematic gambling, it should be sufficient to refer to data contained in verified reports – some of them official – on problem gambling incidence in Spain:

  • The incidence of problem gambling in Spain is between 0.3% and 0.5% of the population between 15 and 65 years old – EDADES and ESTUDES, the National Plan on Drugs.
  • In comparison, addiction levels for tobacco and alcohol (to which gambling is frequently compared) are 34% and 5.1 % respectively – EDADES and ESTUDES, the National Plan on Drugs.
  • Spain has the second-lowest problem gambling rate in all of Europe.

Little more needs to be said, even though it would be quite easy to further demonstrate the disproportional and unjustifiable nature of this Royal Decree. We can ony hope that at some point common sense and reason will prevail.

Overview | Royal Decree 958/2020, of 3 November, on commercial communications of gambling activities

Overview | Royal Decree 958/2020, of 3 November, on commercial communications of gambling activities

Xavi Muñoz Bellvehí, Gambling and Betting Partner at ECIJA.

At long last, the Royal Decree on Gambling Advertising, which we will analyze below, has been approved and published in the Official Gazette (BOE). The Decree contains the following important provisions:

1. Sponsorship of sports teams, competitions or venues, or on shirts or other sports equipment is prohibited. Sponsorship is possible outside the frame of these prohibitions. The existing sponsorship agreements can remain in force until 31 August 2021.

2. Any kind of promotion for the acquisition of new customers is prohibited. This includes the “welcome bonus.”

3. Promotions targeted at existing customers (loyalty bonus) is allowed, provided that the following two requirements are met: (i) the client has an account that is at least 30 days old, and (ii) the identity of the customer has been verified by documentary evidence.

4. Free games can only be offered to registered customers.

5. The use of famous persons, whether real or fictionary, in advertising is prohibited. However, for existing publicity contracts in this regard, these comercial communications will be possible until 1 April 2021.

6. The broadcasting of commercial communications through audiovisual media and during live sport events is limited to the 1AM – 5AM timeslot. Likewise, commercial communications of any kind, broadcasted or posted, which are captured by an audiovisual broadcast shall be subject to the same time restriction.

7. Commercial communications through physical means (billboards, etc.) must not only comply with the Advertising Royal Decree and the national regulations, but also with the regulations regarding gaming advertising imposed by each Autonomous Region. However, communications within sports facilities or published in magazines, newspapers or similar media that are part of a wider national sponsorship agreement, will not be obliged to comply with the regional regulations on advertising, but only the national ones.

8. Operators are prohibited from using trademarks or trade names in their commercial communications which they do not own themselves. It is worth mentioning that operators have a transition period of six months from the entry into force of the Advertising Royal Decree to comply with this obligation.

9. The following commercial communications made through digital services will be permitted:

  • Ads from licensed operators displayed on websites with the “.es” domain or on operators’ mobile applications.
  • Ads on webpages or apps of which the main activity is offering products or information relating to gambling, provided that (i) there are mechanisms in place to prevent access by minors and (ii) these websites or apps feature messages about safe play.
  • Ads on webpages or apps of which the main activity is to offer information on sports or horse racing events, using a specific section.
  • Ads resulting from search results. If those are from SEM actions, the keywords used must be directly related to gambling.
  • Those sent by e-mail or other equivalent means.
  • Those broadcasted as audiovisual commercial communications on video exchange platforms. With the following restrictions: (i) the platforms must feature mechanisms to prevent commercial communications being shown to minors (ii) these platforms must feature mechanisms for hiding or blocking pop-up ads; (iii) these platforms must feature mechanisms for controlling timeslots.
  • Ads broadcasted as audiovisual commercial communications on social networks. With the following restrictions: (i) the social networks must feature mechanisms to prevent commercial communications being shown to minors; (ii) the networks must feature mechanisms for hiding or blocking pop-up ads; (iii) the networks must feature mechanisms to segment the target audience, so that the communications will only be addressed to persons who follow the channel of a licensed operator, to persons who have shown an interest, or persons registered with an operator.

10. Advertising agreements with tipsters are allowed. However, they cannot be famous persons.

11. The Royal Decree enters in force on the following day from its publication, i.e., 5 November. However, there are many exceptions in this regard and many provisions which enter into force later.

12. Specific deadlines

The transition period for the measures outlined in the Royal Decree is very complex. Not all provisions come into force at the same time and there are grace periods for existing contracts.

For an overview of all applicable deadlines that operators and other stakeholders must meet, please consult this document.

Conclusions

In our opinion, the Royal Decree in its current form is undoubtedly an excessively restrictive framework and we hope that its application and interpretation by the DGOJ will be a little more flexible in cases where there can be some doubt.

At ECIJA, we have prepared a list of queries to be submitted to the DGOJ, since the reality on the ground does not always precisely fit with the provisions of the Royal Decree. We see a variety of situations that require an interpretation by the DGOJ, as it is necessary to clearly define the framework of what is and what is not allowed. The penalties applicable to our sector are very significant, even disproportionate in some cases, and therefore, before the interpretation criteria and precedents are well established, we recommend that operators will verify the legality of any advertising action.

GiS webinar report, poll result & audience Q&A: A perfect storm? How to move forward in Spain’s new iGaming environment

GiS webinar report, poll result & audience Q&A: A perfect storm? How to move forward in Spain’s new iGaming environment

We would like to thank our panelists and all attendees for joining us during last week’s webinar “A perfect storm? How to move forward in Spain’s new iGaming environment.”

You can view the webinar in its entirety here:

Panelists & panelist questions

The webinar featured the following panelists:

  • Mikel López de Torre, Chairman of Jdigital
  • Pedro López Martín-Andino, Managing Partner at MartínAndino Abogados
  • Eduardo Morales Hermo, Gambling & Betting Consultant at iGamingCo

During the webinar, the panelists addressed the following questions:

  • What has been the impact of the current Covid-19 pandemic and the government’s temporary advertising restrictions on the online gaming industry?
  • The new Royal Decree on gambling advertising will introduce a series of permanent restrictions on gambling advertising. What else can we expect from the current government regarding future gambling regulation?
  • The appointment of Mikel Arana as the new DG of the DGOJ indicates that Spain’s national gambling regulator will likely steer a different course in the future. How will this affect the day-to-day operations of licensed operators?
  • The current coronavirus crisis and more stringent advertising restrictions will likely mean that some licensed operators will decide to exit the Spanish market. Other operators may still see opportunities. What can we expect regarding M&A activity?
  • Currently there are ca. 80 licensed iGaming operators in Spain. How many of these will survive and become successful? What happens to the rest?
  • Spain’s land-based gambling sector has been hit hard by the Covid-19 pandemic. Can we go back to normal when the economy reopens, or will we see a more fundamental shake-up?

You can find out the answers to these questions by watching the webinar.

Poll results

Webinar attendees were invited to particpate in a poll, the results of which you will find below.

GiS webinar 1 poll

Audience Q&A

Attendees were also able to submit questions of their own. We have answered some of these questions below>

Q: Is the new director of the DGOJ interacting and gathering feedback from the industry? How do you see his interest in the current status of the sector?

A: It is still early, but so far the new director hasn’t reached out yet.

Q: A previous draft of the Royal Decree on gambling advertising was publicly consulted. Will there have to be a second public consultation on the new version?

A: There will not be a new consultation round, but as all administrative processes came to halt due to the State of Alarm, the consultation is currently still open.

Q: What is the curent status of Jdigital’s marketing code of conduct?

A: It has been approved and is in place. Operators have been following it for the last five months.

Q: Will the Covid-19 situation and the appointment of the new DGOJ director affect the Ceuta and Melilla tax benefits for operators?

A: A change in Ceuta’s and Melilla’s tax status would require new primary legislation. At he moment, this seems not particularly likely.

Q: Do you think a lack of land-based gaming will push more people online?

A: While certainly possible, data from other markets suggests that this is, in fact, not happening.

How Covid-19 will affect the Spanish gaming industry

How Covid-19 will affect the Spanish gaming industry

By: Mauro De Fabritiis

The world economy is currently under one of the biggest threats in recent history. The full impact of COVID-19 is still hard to estimate; and the gaming industry is, surely, among the affected sectors. Looking specifically at Spain, after several weeks of confinement, it appears that the COVID-19 figures are slowly improving and that we are entering the downward-sloping side of the curve. This means that the government is preparing a series of actions to “go back to normal” or, at least, to end the current lockdown, even if, for the moment, there is no concrete timetable.

Factors impacting the market

In this uncertain scenario, the short and medium-term evolution of the market is unclear and will depend on the following factors:

The unfolding of the ongoing COVID-19 outbreak: Countries like Spain could be “back to normal” somewhere between July-August but the problem now is what will be considered “normal” for the foreseeable future.

Future outbreaks and their severity: There is much uncertainty regarding potential future outbreaks, especially those that could occur during the next winter. We cannot discard a scenario where a new outbreak will force governments to institute confinement measures for even longer periods than we have already seen.

The measures instituted by governments: Considering the previous two points, there will be measures that will remain in place for longer periods. In fact, in some scenarios, the Spanish government might not allow sports and high-attendance events until late 2020. This will also have an effect, to varying degrees, on bars and, more especially, retail gaming venues.

Social changes: Apart from the direct impact of COVID-19 and the measures that governments will institute in response, current pandemic will also have an impact on day-to-day habits of the population. It is clear that some time will be needed before a large part of the population will again consider going to public venues, stadiums, concerts, and similar events.

The acceleration of regulatory changes and restrictions: Regulators across Europe are speeding up the introduction of restrictions on gambling advertising. In the case of Spain, the government has introduced a temporary ban – with some minor exceptions – on gambling advertising for the duration of the state of alarm.

It is too soon to provide a full estimate of the impact of the virus on the Spanish gambling market due to the uncertainty surrounding the future the development of the outbreak. It will certainly have a heavy impact on land-based operators due to the closing of all gambling venues. For online operators, future developments will be affected, apart from the COVID-19 outbreak itself, by the advertising restrictions that were introduced by the Spanish Government for the duration of the emergency.

We will see an inevitable decrease in sport betting due to the almost total absence of sports events, while casino and poker are expected to grow but not sufficient to compensate for the decrease in betting volume in 2020.

2020 and beyond

Apart from the short-term impact of the COVID-19 and the lockdown, we have identified some general trends for the rest of 2020 and, probably, the medium-term development of the gaming market in general:

A severe decrease in retail gaming: The tight mobility restrictions and the closure of all non-essential venues has paralyzed retail gaming operations that still need to face an important fixed-costs structure without revenues. This is likely to have a significant impact, especially on small/medium operators that may not be able to reopen their business. Big operators and companies that somehow managed to prepare for the crisis will survive, even though their annual revenues for 2020 will be severely impacted. Additionally, they will face an uncertain future, as new outbreaks may occur again.

The short-term uncertainty for betting: As betting is obviously dependent on the quantity and quality of sport events, the current lack of relevant events is having a huge impact on the betting industry. There is a much uncertainty regarding the resumption of canceled events and competitions in the short-term; and even if events will resume, it remains to be seen whether public attendance will be allowed. Across Europe, authorities are considering normalization scenarios with severe attendance restrictions for big events, which will have an unpredictable impact.

Accelerated growth of online gaming: As a matter of fact, online gaming is the fastest growing segment in the gaming industry and COVID-19 will most likely accelerate this trend. In the online segment, we predict the following developments:

  • The prevalence of mobile: Even under current circumstances, with people confined at home, mobile is still the preferred channel to access the online offer; and, in general, consume any kind of online content and entertainment. For certain operators, mobile already generates more than 80% of their total turnover. This trend is expected to further accelerate in the coming years.
  • The (possible) surge of esports betting: For several years now, esports has been one of the promises for the industry, but the reality is that betting figures are still very low compared to offline sports. In this sense, the current situation of lack of relevant sports events offers an opportunity to operators to promote esports events, a category that is growing by double digits every year and that currently appeals to one of the broadest and most attractive audiences.
  • The increase of virtual betting: Traditionally a niche product, virtual betting is now an established vertical that is very attractive to certain customers under current conditions. In recent weeks, there has been a significant interest from operators in launching or improving their virtual betting offer.
  • The (temporary) resurge of poker: With most people now staying at home, poker is among the products that benefited most. In fact, some poker operators are now seeing record figures in active players. It is still too soon to say whether this will only be a temporary resurgence for a product that was facing a global decrease or that this will herald a new rebirth for poker.
  • The continuing growth of casino: The casino vertical continues to grow, in particular due to the good performance of live gaming products. Speaking specifically of Spain, we expect that, in the short term, the regulator will start allowing the offering of live black jack, a product that certain customers are eager to enjoy.

Conclusions

Even in this uncertain landscape, we are optimistic about the prospects of the online gaming industry. We think it will ultimately benefit from the COVID-19 outbreak, even if there are important short-term threats that will have a permanent effect on the industry.

Given the predicted trends, the assumed return to “normal” requires a rethinking of the business models to face the emergency.

For land-based operators, redefining of the layout of the shops to be “COVID-19-proof” and identifying technological solutions to automate the sales processes and optimize management costs, will be the main drivers of future investments. In general, sustainable gaming, favored by a digitalization of the physical offer, will become the new paradigm for businesses that will allow the traditional channels to survive and succeed with an omnichannel (and safe) experience.

For retail operators that already have an effective online presence, a specific effort is required to redirect a relevant part of their resources to stimulate the growth of their online channel. In most cases this was already being done, but this effort now needs to be accelerated to strengthen the business in the short term, while not losing sight of the medium-long term vision.

For online operators, the need will arise to respond to regulatory restrictions by adapting strategies and business models. For some companies, it will be necessary to re-evaluate hypotheses of internationalization in order to obtain the necessary economy of scale for the recovery of investments.

The increase in regulatory costs and regulatory constraints on advertising are creating the basis for a concentration of the market in the hands of a few medium-large operators and the exit of medium-small ones with unclear positioning. A significant increase in M&A operations is expected during the next 2-3 years. Speaking specifically of Spain where there are more than 80 licensed operators (of which more than 30 received their license in 2019 as part of the last tender), we expect a very active 2020 and 2021 in terms of M&A activities.

There is room for the Spanish gaming industry to surf the wave of the ongoing COVID-19 emergency, but concrete support from the Spanish government is urgently needed or, at the very least, the government should refrain from implementing unnecessary measures that will harm the licensed industry and will only benefit illegal operators. This means that reasonable, as well as effective advertising rules should be implemented that allow customers to identify the legal offering, while at the same time stimulating operators to promote responsible gaming behaviors in a controlled and safe-guarded environment. This is the only way to allow the restart of the market, avoid a collapse, and, in the medium term, ensure that a sustainable gaming industry is built in Spain.

Mauro De Fabritiis
Founder of MDF Partners
mauro@mdfpartners.com

The six steps of acquiring a Spanish-licensed online gambling operator

By: Xavi Muñoz & Mònica Ferrer; Partner & Associate at ECIJA

Spanish online gambling regulation is built around a closed licensing system. Remote gambling licenses may only be acquired during so-called “licensing windows.” The last licensing window opened in 2017-2018; and it is unclear when (or whether) a new licensing window will be announced.

As the direct transfer of gambling licenses is prohibited under Spanish law (section 9 of Law 13/2011, of 27 May, on Gambling Regulation), the only way to receive a Spanish remote gaming license is to acquire the shares of a company already holding such a license through a M&A transaction.

We believe that – due to the large number of operators in the market – there will be some operators who will not be able to profitably operate their business, while other operators will still see opportunities to stand out in a crowded market; and thus wish to acquire a Spanish online gambling license.

At present, the only way to do so will be through an acquisition process.

The acquisition of a Spanish online gambling operator will entail all the normal steps of any corporate M&A process. Nonetheless, due to the specific regulations online gambling operators are subject to, several additional issues will have to be taken into account.

Overall, the process can be divided into the following steps:

STEP 1: Identifying a suitable target company

The target company will be among the ca. 80 firms holding a Spanish online gambling license. Only a few of those companies, however, would be interested in selling or accepting an investment. Consequently, research must be undertaken to draw up a suitable shortlist.

From among the feasible targets the buyer will have to select a company that holds the specific licenses (betting, casino, contests) he or she is interested in. Other considerations include price, technology, team, etc. Likewise, potential sellers will have to consider these elements in order to maximize their attractiveness to prospective buyers.

STEP 2: Valuation of the target company

Once the desired target company has been identified, the seller will have to execute a business valuation process which will have to take into consideration issues regarding the business operations, productive assets, historical performance, evolution of its Gross Gaming Revenue (GGR), number of active players accounts, etc.

In order to obtain some of this information, it might be necessary to directly contact the target company. In doing so, the parties shall sign a NDA and later, if talks progress, a Term Sheet, Letter of Intent, or Memorandum of Understanding.

STEP 3: Signing of a Term Sheet, Letter of Intent, or Memorandum of Understanding

Depending on the amount of information waiting to be confirmed and stipulations still to be agreed upon regarding the conditions for the transaction (e.g., total or partial acquisition; conditioned or fixed price; time schedule for the execution of the agreement; etc.), the parties shall sign and execute a Term Sheet, Letter of Intent, or Memorandum of Understanding broadly detailing the main aspects already agreed upon between the parties.

STEP 4: Due diligence process

The investigation and verification process to ensure that the transaction meets all desired goals and fulfills all agreed conditions, will have to take into account issues that are specific to the gambling sector. Such issues shall include, but not be limited to:

  • Date of issuance and renewal of the licenses, as well as any potential regulatory risk related to said licenses.
  • Software agreements with the suppliers of the gambling platform, the games, the CPD, and any other necessary element.
  • Corporate compliance level of the company. Online gambling operators are subject to a high level of corporate compliance obligations (i.e. specific AML obligations, need for DPO in personal data protection, etc.). Ensuring that all necessary obligations under Spanish law have been met, will thus be of utmost importance.
  • Gambling-specific regulatory compliance. The commission of two serious breaches within a period of two years entails what is considered a very serious breach under Spanish law. Such a “very serious” breach may lead to an economic sanction of between €1m and €50m, in addition to the potential loss of the gambling license. Therefore, the number and amount of any previous fines issued by the gambling regulator will have to be carefully checked.

STEP 5: Signing and closing of the Sale and Purchase Agreement (“SPA”)

The clauses of the SPA that will have to be most vigilantly negotiated are:

  • Representations and warranties of the seller. The findings of the due diligence process will have to be duly analyzed and included in the representations and warranties of the SPA.
  • Limitations of responsibility. Taking into account that the buyer will be assuming any contingency or liability that may arise in the future, the limitations of the liability for the R&W made by the seller will play a key issue in the negotiation of the SPA.
  • Price and payment structure. The operation may be structured in a wide variety of ways. The acquisition may be total (100% of the shares of the company) or partial (51% of the shares of the company). Additionally, the parties may be interested in deferring or conditioning the payment of the price to the obtainment of specific results (i.e. partially conditioning the payment of the agreed price to the maintaining or increasing of the company’s results or to the performance of key personnel). Likewise, the potential granting of stock options or vesting plans for key employees, the establishment of call options for the investor to buy the shares not acquired in the initial equity investment and any other mechanisms shall be duly established in the SPA.

STEP 6: Notification to the Directorate General for the Regulation of Gambling (“DGOJ”)

The transfer of shares will have to be notified to the Spanish gambling regulator (DGOJ) once executed, together with all the relevant information on the new owner of the gambling license (related parties; ultimate beneficial owner; etc.).

Finally, it shall be noticed that corporate restructuring operations such as mergers, splits or spin-offs of branches of activity are subject to the obtainment of prior authorization by the DGOJ, which will depend on the following factors:

  • that the company fulfills all necessary requirements to hold a gaming license under Spanish law (this is in accordance to article 13 of the Law 13/2011);
  • that the corporate restructuring operation is duly executed in accordance with applicable laws and regulations;
  • in which case, the DGOJ shall grant a “pre-approval” of such corporate operation, which will be valid for three months; and
  • that the new company acquiring the gaming license shall assume any responsibility for any issue regarding the gambling activities developed by the gaming operator.

At this point, the execution of the operation will become much more complicated as obtaining the regulator’s prior authorization is compulsory and its approval has to be received prior to the execution of the deal.

Spanish state of alert: effects on the gambling and betting industry

Spanish state of alert: effects on the gambling and betting industry

Xavi Muñoz Bellvehí, Gambling and Betting Partner at ECIJA.

Note on the consequences of the state of alert for the land-based and online gambling sectors

The gambling & betting industry is among the sectors affected by the state of alert ordered to deal with the ongoing Covid-19 outbreak.

The effect on land-based gambling companies has been absolute and direct, with all gambling and betting shops being forced to close. Clearly, the activities of these companies are completely paralyzed.

The situation is much different for online gambling. Although sports betting is almost completely paralyzed as well due to the suspension of nearly every sports competition, part of the product offering (i.e. casino games, slots, and bingo) can be maintained.

We highlight below the legal issues that gambling operators will have to deal with during this public health crisis:

1. Employment

Among the labor measures approved by the government, the most significant is the procedural simplification of the Record of Temporary Employment Regulation (ERTE), which allows employers to temporarily suspend employment contracts or reduce working hours. Employers can carry out two kinds of ERTE:

  • Force majeure ERTE: only in those cases in which the suspension of employment contracts or reduction of working hours is directly caused by the direct impact of Covid-19 on the profitability of the company.
  • Ordinary ERTE: for those cases in which the suspension of employment contracts or the reduction of working hours is not directly caused by Covid-19’s impact. It is worth mentioning that even in this case, the procedure has also been simplified.

Gambling and betting operators, who: (i) are land-based; or (ii) whose activities are exclusively or partly based on sports betting may carry out force majeure ERTEs, as their activities have been directly affected by Covid-19. In the first case, due to the closure of the betting shops and premises to the public, and in the second case, due to the cancellation of most sports events.

On the other hand, those online operators that do not offer sports bets should, in case they consider it appropriate and necessary to carry out an ERTE, comply with the requirements of the ordinary procedure, since the effect suffered in their activity is not directly linked to Covid-19.

2. Contracts

Considering the current situation, gambling operators, both land-based and online, should try to lower their fixed costs. This may include rental fees and licensing costs, as well as allocated budgets for marketing or other services that can no longer be (fully) carried out under the current circumstances.

Notwithstanding the provisions established in each contract and/or in the coverage of the applicable insurance policies, under Spanish law, this situation may be covered by the regulation of force majeure and the “rebus sic stantibus” clause, which consist of the following:

  • Regarding force majeure, provided by art. 1.105 of the Spanish Civil Code, “no one shall be liable for those events which could not have been foreseen, or which, if foreseen, were unavoidable”, which can eliminate or limit all liability of one or both parties, without prejudice to the survival or termination of the contract in accordance with its object, duration and what has been agreed between the parties.
  • Regarding the “rebus sic stantibus” clause (“things being as they are” – which refers to the “circumstances” under which an agreement was signed, which have now changed), it is a doctrine shaped by Spanish Courts. On the basis of “rebus sic stantibus”, termination, review or suspension of contracts may be allowed in the event of disproportionate performance between the parties, resulting from a sudden and unforeseeable change in the circumstances existing at the time the contract was signed; this basically applies to contracts of a successive nature (ongoing).

Hence, depending on the actual context, operators or other firms in the sector may use these two options to rebalance their contractual position with their suppliers (mainly regarding the previously agreed price for temporarily unavailable or irrelevant products and services).

3. Gambling & betting specific regulation

At this time, the Directorate General for the Regulation of Gambling (“DGOJ”) has not issued an opinion on the current Covid-19 crisis, nor has it stated whether there will be any changes with regard to the obligations of online gaming operators (for instance, a moratorium on compliance deadlines, some extra months for those operators who have recently obtained their licenses and must launch their operations within one year, speeding up the approval of new games that could be substitutes for sports bets, etc.). We are following up with the DGOJ to see if they are considering new measures.

4. Taxes

Land-based and online operators can benefit from the nationwide special measures adopted by the government, such as easing of deferrals of up to 30,000 euros for SMEs or the extension of certain deadlines within the framework of tax procedures.

5. Regional measures

In addition, some of Spain’s Autonomic Regions have taken measures to assist firms in the current emergency situation:

  • In Catalonia, the filing and payment of the first quarter’s gaming fee for type B slot machines has been suspended until the state of alert is lifted (Decree Law 7/2020 of 17 March).
  • In Andalusia a reduction in slot machines tax has been approved, and establishes a 50% discount on the fees accrued in Q2 2020 (Decree-Law 3/2020, of 16 March).
  • In the Basque Country and Aragon, the deadlines for gambling tax payment have been extended.

However, these measures have not been extended to the Balearic Islands, where the regional tax office has decided not to extend deadlines or apply moratoriums on gambling tax payments. In this regard, it will be necessary to follow up closely how other regions react to the situation and whether they adopt measures in relation to this sector.

In conclusion, we consider that the main uncertainties that the gambling market in Spain is currently facing are the following:

  • When will sports competitions be resumed?
  • When will it be possible to reopen the land-based premises?
  • Will the schedule for the approval of the Royal Decree for Gambling Advertising Regulation be maintained?
  • Will the timings for the approval of the autonomic regulations for land-based and online gambling (i.e. regulation of the Valencian Community whose approval was foreseen for April) be maintained?
  • Will possible moratoriums be granted for gambling taxes both at regional level (in those regions that have not yet made a decision) and at national level?

In addition to this general overview, we have specific notes available on the employment and tax implications of the current Covid-19 crisis. Please contact Xavi Muñoz Bellvehí for more information.

Download: Royal Decree on Gambling Advertising

Download: Royal Decree on Gambling Advertising

Today, the Spanish government published its long-awaited draft Royal Decree on Gambling Advertising.

Download the full document here.

Additional commentary and analysis will follow soon!

How to prepare for M&A activity in the Spanish online gaming market

How to prepare for M&A activity in the Spanish online gaming market

By: Xavi Muñoz & Mònica Ferrer; Partner & Associate at ECIJA

The third licensing window for the Spanish iGaming market closed over a year ago, leaving the regulated Spanish online gaming market divided among 80 operators. Since a new licensing window is not expected any time soon and gaming licenses are non-transferable, online gambling licenses can only be acquired (or sold) within the framework of an M&A transaction. Therefore, any company wishing to enter the Spanish gaming market can only obtain a Spanish iGaming license by acquiring an already licensed operator. Conversely, any operator wishing to sell all or part of his business should prepare for dealing with prospective new market entrants.

In order to acquire a Spanish gaming license, the interested buyer needs to gain full ownership of the company holding the gaming license. By doing so, the change of ownership of the license shall not be subject to prior authorization by the Spanish gambling regulator. In such a case, the new owner will only need to file a notification with the regulator once the transaction has been completed (although we would always recommend to confirm the transaction with the regulator beforehand).

As part of the acquisition, all relevant business aspects will need to be brought in line with the new ownership situation. This includes the revision of the contracts with software suppliers, the bank guarantee, the policies in place regarding all compliance and reporting matters, and – if applicable – any ongoing enforcement procedure.

Licenses can only be transferred to another party through an M&A transaction at the company level. Thus, if an operator wishes to sell one of its licenses but keep another one (or sell it to a second buyer), the seller should restructure and place each license with a separate company.

Both buyer and seller should look for the right fit. The buyer should consider the reason for the acquisition of a specific operator – whether it is its licenses, its platform, its goodwill and customer database, or a combination of everything. Also, the seller should look for a buyer that values all of his assets in order to get the best price, while the buyer should look for a seller which fits his specific needs in order to pay a just price. To maximize the value of its assets, the seller could also consider selling part of his assets to different buyers by way of multiple agreements – although this should be considered and prepared for well in advance in order to be fully prepared when the time comes.

Due to the high level of compliance requirements, potential buyers should consider issues such as the track record of the seller’s compliance, potential liabilities, and other matters that could impact the requirements for the license to remain valid.

Each acquisition or sale will be different; and we consider it essential to obtain appropriate legal advice in advance in order to prepare for and manage your and your counterpart’s expectations. Additionally, there may be an added level of complexity as the selling company could be a gaming operator located in Malta, Gibraltar or Ceuta, making it essential that all corporate, regulatory and tax implications are mapped properly and incorporated into the design of the deal.

Learn more

On February 27, ECIJA will organize a one-day seminar in Madrid on “Comprehensive compliance and conducting M&A in Spain’s online gaming sector.”

Xavi Muñoz, Partner at ECIJA, Mikel López de Torre, President of trade association Jdigital, and Willem van Oort, founder of Gaming in Spain, will present their visions on the expected consolidation in the Spanish online gaming market and its implications for regulatory obligations and compliance.

GiS Conference report: Spain’s iGaming market still very attractive, but political threats loom

GiS Conference report: Spain’s iGaming market still very attractive, but political threats loom

On Thursday and Friday, the 2019 edition of the Gaming in Spain Conference took place in Madrid. With a solid line-up of expert speakers, including the Director General of the DGOJ, attendees were given the latest news, as well as in-depth analyses, of the current state of the Spanish online gambling market.

DGOJ: “Ball now in operators’ court”

Juan García Espinosa, Director General of the Dirección General de Ordenación del Juego (DGOJ), delivered the opening keynote address at the 2019 Gaming in Spain Conference. Espinosa highlighted the successful regulation of the Spanish online market since 2013, when the first online licenses were issued. Moreover, the DGOJ’s expectation is that Spain’s online market will continue to see healthy growth.

Espinosa added, however, that “continued growth generates social concern.” And while the harm caused by the regulated gambling sector in reality appears almost negligible compared to, for instance, the alcohol and tobacco industries, the public perception has been quite different.

Yet, while the reality is that most players play only moderately, it is equally undeniable that some players do gamble excessively. For those players there gambling carries a real risk. Thus, it is up to the industry to prevent excesses.

Espinosa: “Coming to terms with the way consumers spend their money is a priority. Problem players display typical behavior; and we need to use this to identify them at an early stage. Of course, responsible gaming carries costs. But technology is constantly improving.”

In short, in order to keep the Spanish online market viable (in a political and social sense), operators should urgently take steps to improve the early detection of pathological gambling behavior and invest in measures to prevent or minimize harm.

Espinosa: “Spain has been the only jurisdiction in which online gambling tax rates have recently been lowered – even apart from the tax advantages offered to operators based in Ceuta and Melilla. Now, there has to be something in return from the industry.”

“No allies in Parliament”

María Rosa Rotondo, Managing Partner Spain & Portugal at Political Intelligence, offered an in-depth analysis of the political situation in Spain, following the national elections earlier this month.

“The election results have made the political situation more complex,” Rotondo said. “There is no clear path to a stable majority government.” At present the PSOE and Podemos are trying to form a minority government. This coalition can be expected to exhibit a greater hostility toward the industry than a purely PSOE administration.

But while the Partido Popular and other right-wing parties may be a bit friendlier toward the industry, the fact is that gambling is currently a priority across the political spectrum. “The sector has no allies in Parliament,” Rotondo observed.

Rotondo: “The reputation of the online sector is contaminated by the bad reputation of land-based gambling halls and betting shops. At present, neither society nor politicians differentiate between online and land-based gambling.”

Full advertising ban unlikely

Of the major parties, only Podemos has embraced a full, Italy-style gambling advertising ban. While the introduction of such a ban thus appears unlikely, the possibility cannot yet be fully excluded.

A complete or nearly complete advertising ban would have a strongly negative impact on the sector, all speakers agreed, if only because it would make it virtually impossible for customer between licensed and unlicensed operators.

“Gambling markets cannot function properly without advertising – because advertising highlights the licensed gambling companies to consumers, which, in turn, supports their participation in the regulated market,” Maarten Haijer, Secretary General of the European Gaming and Betting Association (EGBA) said.

Leading Spanish gambling lawyer, Santiago Asensi added that a gambling advertising ban would not be “up to the politicians alone.” “Such a ban can and will be challenged in court,” Asensi continued. “Restrictions on a legal industry must be proportionate to the goals these restrictions seek to achieve. A full advertising ban, in my opinion, would not qualify as a proportionate measure to prevent gambling-related harm in what is only a tiny minority of players.”

Courage needed for joint action

To head off some of the looming restrictions, Spanish-licensed operators would do well to take joint action in order to preserve the current state of the market. “While there are some potential threats on the horizon, at present Spain remains a very good market with very sensible regulation,” Dominik Beier, CEO of Interwetten, said.

Thus, in order to preserve the status quo, Guillermo Olagüe Sánchez, Subdirector General de Regulación del Juego at the DGOJ specifically advised operators to:

  1. gather better quality player data;
  2. actively cooperate with each other to minimize harm;
  3. identify and promote responsible gambling innovation; and
  4. make use of player behavior data throughout their supply chain.

While most speakers agreed that it would require “courage” to establish sincere cooperation between competitors, it was equally clear that all licensed operators have a common interest in creating and maintaining a sustainable online gambling market.

The recent agreement by the members of Spanish online trade association Jdigital to self-regulate their advertising and marketing expressions was therefore universally hailed as a very welcome first step in fostering closer cooperation.

Gaming in Spain Brand & Market Monitor

With up to thirty new operators about to enter or just having entered the Spanish iGaming market, keeping track of the performance of their brand(s) is becoming increasingly important to Spain-facing operators.

In order to fulfill the growing demand of reliable market intelligence, the 2019 Gaming in Spain Conference also marked the occasion of the presentation of the very first results of the Gaming in Spain Brand & Market Monitor, a survey held among 2,000 Spanish consumers on gambling behavior and attitudes.

A free summary of the Gaming in Spain Brand & Market Monitor is available for download here. Follow-up measurements will be held at a quarterly basis.

Watch the full GiS Conference online

All sessions of the 2019 Gaming in Spain Conference were streamed live. (Re)watch the full conference here.

Or check out the GiS photostream on Flickr, either to reminisce or to see what you missed.

In any case, we hope to see you next year!

Watch the 2019 Gaming in Spain Conference live stream here!

Watch the 2019 Gaming in Spain Conference live stream here!

Selected sessions of the 2019 Gaming in Spain Conference taking place Friday November 22, including the presentation of Juan Espinosa García, Director General of the DGOJ, as well as a panel discussion with Maarten Haijer, Secretary General of EGBA, on possible future advertising restrictions, will be streamed live.

Check out the conference website for the full event agenda.

Watch the live stream here: