Strike!

Words reaches my ears that Paul Roy and Nic Coward have been holding secret meetings with trainers with a view to calling a one-week strike, should racing not secure what it is after in the current levy debate.

Surely not? It seems such an odd strategy that I struggle to believe it. But my source was at one of the meetings in question, and I can't believe he dreamt it!

Paul Roy

It comes as no surprise that BHA Chairman Paul Roy should once again repeat verbatim the wording that he gave the Racing Post last week, and that David Zeffman put in his article two days earlier, about professionals operating on exchanges, in today's 'exclusive interview' in the paper.

It's no surprise either to see him making statements like, "exchange prices which are very keen but have minimal liquidity at those keen prices".

But both statements go to show that racing has not lost its old knack of saying things it wants to believe, and then believing them just because it hears them said.

The idea that we have 'minimal liquidity' at prices that are 'keener' than those that traditional bookmakers would otherwise make is easily dismissed by anyone who actually looks at our markets.

It may well be that Paul Roy wishes that there was minimal liquidity, and that somehow the traditional price on-course is a fairer price to the punter because it is more reflective of proper volume.

But unfortunately, Paul, it isn't true. However many times you say it.

Olswang: Once more unto the breach?

I haven't yet commented on the article written by David Zeffman in the Racing Post on Tuesday, which was followed up on Thursday.

The more eagle-eyed among you will have noticed that I did, briefly, put up a post entitled 'Olswang' that said, "I won't get into the ins and outs of the piece by David Zeffman in today's Racing Post. I do find it curious, though, that an article flagged as a 'news special' on 'betting exchanges and the law', and headlined 'Frank Exchanges', should be written by someone whose firm is currently acting for the BHA in matters relating to the levy and betting exchanges - but the fact should, inexplicably, not be mentioned." But in the end I took it down.

I did so for a number of reasons.

First, I thought that the Racing Post, which was apparently not aware of David Zeffman's link to the BHA, would do the decent thing and make it clear themselves that what purported to be a full-page article was in fact, through no fault of their own, not much more than a free advert; and I didn't think there should be any suggestion that I was pre-empting that.

Second, I rather took the view that this is a technical legal argument which has, frankly, been done to death. David Zeffman can have his view; he's expressed it before, as I have mine. But the thing is that every time to date that there has been an independent assessment of it, no-one that matters has agreed with him. I'm all for having the debate again, but I thought it was easier to have it in full with the people who will have to decide. As David Zeffman proved, you can't make a watertight case on one page of the Racing Post. Writing statements like, "it seems very likely that some users are conducting themselves as a business" might be enough to persuade people who really want to believe something, but it clearly isn't based on any evidence. It might once have seemed very likely - indeed, for a very long time and to an awful lot of people - that the earth was at the centre of the universe, but saying so repeatedly didn't actually change the facts.

But those caveats notwithstanding, I'm afraid that today I can't resist. The follow-up piece in this morning's paper is surprising, at best.

Consider the facts: a lawyer who is retained by a given organisation which has long been in dispute with a given company on a matter which over the years has repeatedly been considered by various government departments, writes a full-page newspaper article, without declaring his interest or connection, relating to the dispute in question. That this has happened is pointed out by the given company to the newspaper in which the article was published.

Two days later, the paper uses the original article to headline a renewed call by the client of the lawyer to re-open the much-considered issue, on the back of the fact that there has been an article by a lawyer which suggests it could be done. The connection between the lawyer and his client is only included in a quote from the company which is the target of both the original article and the follow-up, in paragraph 9 of an 11-paragraph piece. Paragraph 3 of the article, meanwhile, repeats the unfounded comment deemed by the lawyer to be 'very likely' mentioned above; while paragraph 5 quotes the client using the unsubstantiated view of his lawyer to state that, "we are not just going to sit here and watch professionals operating on the exchanges, in business, negotiating and taking bets when they are not licensed and not paying tax and levy."

You will no doubt have your own view on whether that constitutes journalistic balance. I guess that only if the HBLB were suddenly to open up a consultation exercise on the issue on the back of the article, might the view that it was wittingly or unwittingly kicking off a campaign be reinforced.

But aside from that, let us consider the argument.

Mr. Zeffman claims that "the accuracy of my analysis is not affected by whether or not I'm instructed by a client."

Let us accept that this is true. I have commented above why you should not just believe something that is generally-accepted just because it is generally-accepted, so I will assume that there is not actually any truth in the the generally-accepted notion that lawyers do what you pay them to do.

I therefore accept without question that the accuracy of Mr. Zeffman's analysis can absolutely be unaffected. But on that basis, it can also be not very accurate, whoever is paying his bills.

Let's consider it.

The law is absolutely clear that two things have to be established for someone to become liable for levy as a bookmaker: that they are negotiating or receiving bets, and that they are doing so in the course business. Mr. Zeffman says that the 'key question' is the latter, and it is true that this is the point on which most debate has raged over the years. But let us not forget that it is a two-stage definition, and Mr. Zeffman predicates his entire argument by dismissing the first part with the boldly-stated and entirely unsubstantiated opinion that, "There is no doubt that an exchange's customers are receiving or negotiating bets".

Mr. Zeffman will not be unaware of the response to this opinion of his, since the BHA had were sent it, in full and in writing, eighteen months ago. Let me quote directly the answer they received responding to the question, "Is any party ‘receiving or negotiating bets’ on an exchange?":

"The fact that a betting exchange customer has the flexibility to request a price different to that available, provides no determinative answer because so does a betting shop customer and a racecourse punter asking a bookmaker for ‘the fractions’. All gamblers, whether betting on an exchange or with a traditional bookmaker have the ability to ‘negotiate’ the odds available. It seems to us that no gambler ‘negotiates’ a bet; the arranging of the rules which govern the placing of the bet (and indeed all consequences following therefrom) is conducted by the betting operator (whether Ladbrokes or Betfair).

There is nothing ‘received’ by any customer on a betting exchange – or at least nothing is ‘received’ by a betting exchange customer that would not similarly be ‘received’ by a betting shop punter (a betting receipt, winnings in some cases etc). If the word ‘bets’ in the context of the 1963 Act means ‘stakes’, then of course the stakes are received (and held pending the outcome of the event) exclusively by the exchange operator. If however ‘bets’ equates not to ‘stakes’ but to the standing of loss, then even the exchange operator does not appear be covered by the definition within the 1963 Act.

In short, we do not believe that any exchange customer is ever ‘receiving or negotiating bets’. However, if this interpretation is wrong and the unique nature of exchange betting means that customers are ‘receiving or negotiating bets’ then it is strongly arguable that Betfair (as a pure intermediary) does neither. In this case, what is the justification for Betfair continuing to account for Levy and on what basis has HBLB been accepting Betfair’s Levy payments over the past 8 years?

The argument that both Betfair and its customers are ‘receiving or negotiating bets’ is symptomatic of a ‘cake and eat it’ attitude from the BHA."

Now, whether you agree with this analysis or not, one thing is undeniable: when David Zeffman says that "there is no doubt that an exchange's customers are receiving or negotiating bets," he is clearly, 100%, wrong. There is a doubt. And it would need him, or his client, to persuade a judge that his version of the argument is right, and Betfair's is wrong. This is what the BHA has been trying, unsuccessfully, to do for the last eight years, just as it has, equally unsuccessfully, the whole argument about 'can you be in business purely on an exchange?' - another whole debate which we've repeated continually and can of course repeat again, in my view with the same result. The BHA clearly believes that in doing so, it is not wasting its time over matters it cannot and will not win, when so many other things under its control are being ignored.

"Behind all the myths, the legal reality is relatively straightforward," Mr. Zeffman wrote on Tuesday - a quote repeated in today's article as if it supports the BHA's argument. Anyone would think that in making their deliberations in the past and coming down on Betfair's side, the last government decided to ignore the law, rather than base their analysis on it.

In the Racing Post today, BHA Chairman Paul Roy suggests 'a new approach to a new government', just as racing has made a new approach every time there has been a new Minister, or a new Shadow minister, or a new set of officials at DCMS. Every time, the BHA gets knocked back, because what they need is not new people, but a new argument that actually falls in line with legislation; or, failing that, a new law.

Personally, I don't mind which it decides to work on creating. But continually pretending that their existing position, expressed unsuccessfully for so many years, suddenly becomes true when you tell it to someone who hasn't heard it before, is just insulting to that person's intelligence. Any in-coming administration will have to look at the issues in far greater detail than could be afforded to Mr. Zeffman even in a double-page spread of the Racing Post, and it seems unlikely to me that careful and objective analysis of the position as it stands will come to a different conclusion from any reached to date.

So if I were Paul Roy, I would be deciding what it is I actually want - levy from betting operators, punters, traders, backers, layers, successful backers, successful layers, or professional punters - and then trying to get a law which secures that. Any administration that thinks that reworking a 2005 law deemed to be at least to some extent future-proof makes sense three years after it was actually implemented, can then write a new one.

If that one, as is true now, is consistent in its treatment of the individual interest groups (betting operators, punters, traders, backers, layers, successful backers, successful layers, or professional punters) whoever their customers are (if they're operators) or wherever they choose to place their bets (if they are customers), then Betfair will be quite happy. But you can bet the exact same argument will rage, because this was precisely the debate, held between 2003 and 2005, that led to the perfectly sensible law we've currently got.

BHA AGM

I was at the BHA's AGM today - an event which contained a surprise or two (such as the presence of Jeremy Kyle) and, as ever, differing opinions at lunch afterwards. One person I would consider entirely independent commented to me that he felt BHA CEO Nic Coward had spoken extremely well; another of the same description that he had seemed nervous and not on top of his brief. The racing industry isn't well-known for having consistent views, and today was no exception.

From the substance of the speeches, though, only one paragraph from either of Paul Roy's or Nic Coward's was directly relevant from my point of view.

Paul Roy's reference to Betfair was as follows:

"Betting and Racing also need to work together to understand how the development of exchanges will affect us over the years to come. The impact of exchanges on liquidity, bookmaking margins and the maintenance of integrity services with its escalating costs is significant. This is an enormous challenge facing both traditional bookmakers and Racing and we must respond to it."

To say this is curious would somewhat understate it.

I'm not sure what is meant by our impact on liquidity. In Australia, TabCorp business has increased, and money into the Tote in Tasmania is up 20%, since we were licensed there. The idea that we have adversely impacted liquidity in the betting market is a new one on me.

The escalating costs of integrity services in contrast, is an argument which I think most people have left behind long ago. If the BHA is really setting itself up to argue that Betfair's levy payment should be proportionately higher than everyone else's because of integrity issues, I think it is on to a loser. By all means, we can withdraw the free access to our Bet Monitor on which the BHA's integrity unit basis much of its intelligence, or we could scale down the investment we have made internally in our own integrity team (which acts as a dedicated resource for organisations like the BHA with which we share information) if providing the support of either on a real time basis is seen to create a burden for the sport. But surely no sensible man is going to return to the whole 'you can bet on a horse to lose' red-herring and retain any credibility in the modern world.

But of the three things which Paul Roy points to, the 'impact on bookmakers margins' has got to be the strangest of the lot. There's far too much that could be said about margins to cover it here, so I will blog about it some other time; but even a short analysis of this statement is enough to demonstrate how odd it is.

First of all, as discussed many times before, margin is not the relevant metric, and as a man who has made all his money in the markets, it is inconceivable that Paul Roy doesn't understand that (although if he doesn't, I blogged about it in Noddy terms the other day). The industry gets paid on gross profit. Plenty of academic studies of horseracing will explain how when margin is cut, turnover goes up (and vice-versa); and gross profit is the product of the two.

Second, bookmaker margins have not consistently been going down, as racing seems to suggest. Yes, there was a period of prolonged bleating (which happened to mirror exactly the bleating about pitch auctions which pre-dated Betfair's existence), but if you look at what the bookmakers tell the City rather than what they tell the racing industry, you will know that there have been periods when they have stressed that margin is going up.

But both those points aside, it is worth recalling what the Treasury had to say about this issue when they did their review of betting exchanges. Although Racing will tell you today that 'that was a long time ago' (it finished in December 2005), the quote in question is timeless: "It is not the fault of the tax system that off course prices are set in such an arcane way, nor the responsibility of the tax system to correct for this."

Nic Coward's 'big paragraph' from my point of view was this one:

"Once the right number is established, then will be the time to get into the issue of what parts of the betting world will be contributing what proportion – the very different businesses of small independent, majors, exchanges, online and other remote operators. They will have differences of opinion between them, undoubtedly. Heated differences. But whatever those difficult issues are, and however they are resolved, does not, and will not, and cannot, alter the amount that is due to racing."

There are lots of things you could say about it, despite the fact that it's only one paragraph; but I shall limit myself to three comments.

The first is, perhaps, peripheral. But I can't read it without finding that what springs to mind is the observation made to me by one of racing's CEO's at Cheltenham last year: I remember him telling me that "Nic's rhetoric is Churchillian. We sit in meetings with him and you can see people hanging on his every word. But the trouble is, when you see it written down afterwards, you realise you can't actually work out what it means."

The second is more fundamental: it's curious to me that they don't yet know what the number should be. If they've spent the last three years saying that the levy is all wrong and racing needs to get a proper return, how is it possible that they are only just working out what number they think a proper return is?

And the third, most fundamental of all, is this: it's pretty clear, as was commented to me afterwards by someone who is part of the Horseman's Group, that the paragraph is a "shot across Betfair's bows", in that it flags the idea that not all operators should pay on the same basis as other operators. But surely, if the object of the exercise is to make sure that people pay commensurate to the amount that they benefit from racing, then what screams out as the solution is that everyone should be paying a percentage of their profits. Someone who only makes £100 pays £10; and someone who makes £100million pays £10million. What could be more consistent and proportionate than that?

Of course, if 10% of the overall profit figure doesn't get racing to the "right number" that we're about to have established, then what needs to change is the rate of the levy. As we've been saying since about 2004: if 10% across the industry isn't the right number, then change it; but you have to do that across the board, consistent across operators. And you also have to accept, as you make the product more and more expensive for the operators, that you risk accelerating the loss of market share to other sports.

Ultimately, that is a risk that Racing is going to have to take, if it wants to go down the route of hitting a pre-determined number; because the quest for that number can only be achieved by deciding what it is, and then working out what percentage of operators' profits is required to hit it.

Of course, the BHA will argue that the percentage will be determined by how many people are in the net, and therefore by what makes you a bookmaker; and we'll be back to the same old unsubstantiated arguments about bookmakers avoiding levy or punters who make money on Betfair being relevant (but not those who make money anywhere else). Flagging this appears to have been the purpose of this paragraph in the speech.

So, at an AGM to take us into a new decade, where Racing for Change was the principle topic, the Chairman wanted to underline the concerns that exchanges raise for integrity and margins; and the Chief Executive wanted to signal his plans to levy Betfair differently.

Who says Racing's not stuck in a groove?