National Football League v. Governor of the Delaware

OPINION

In August 1976, the Office of the Delaware State Lottery announced a plan to institute a lottery game based on games of the National Football League (“NFL”). Immediately thereafter, the NFL and its twenty-eight member clubs filed suit in this Court against the Governor and the Director of the State Lottery seeking preliminary and permanent injunctive relief barring such a lottery scheme. The State of Delaware intervened, and the complaint was amended to add a request that the Court create a constructive trust on behalf of the NFL clubs of all revenues derived from such a lottery. Finding no threat of immediate irreparable injury to the NFL, the Court denied the prayer for a temporary restraining order. 1

During the week of September 12, 1976, the football lottery games commenced. Upon defendants’ motion, the Court dismissed plaintiffs’ claims that the games violated the Equal Protection Clause of the Fourteenth Amendment and the Commerce Clause of the Constitution. With respect to twelve other counts, defendants’ motion to dismiss or for summary judgment was denied. The lottery games continued through the season.

*1376 In late Fall, a six day trial on the merits was held. That was followed by extended briefing. The matter is now ripe for disposition. This Opinion constitutes the Court’s findings of fact and conclusions of law on the questions presented.

FACTUAL BACKGROUND

The Delaware football lottery is known as “Scoreboard” and it involves three different games, “Football Bonus”, “Touchdown” and “Touchdown II”. All are weekly games based on regularly scheduled NFL games. In Football Bonus, the fourteen games scheduled for a given weekend are divided into two pools of seven games each. A player must mark the lottery ticket with his or her projections of the winners of the seven games in one or both of the two pools and place a bet of $1, $2, $3, $5 or $10. To win Football Bonus, the player must correctly select the winner of each of the games in a pool. If the player correctly selects the winners of all games in both pools, he or she wins an “All Game Bonus”. The amounts of the prizes awarded are determined on a pari-mutuel basis, that is, as a function of the total amount of money bet by all players.

In Touchdown, the'lottery card lists the fourteen games for a given week along with three ranges of possible point spreads. The player must select both the winning team and the winning margin in each of three, four or five games. The scale of possible bets is the same as in Bonus and prizes are likewise distributed on a pari-mutuel basis to those who make correct selections for each game on which they bet.

Touchdown II, the .third Scoreboard game, was introduced in mid-season and replaced Touchdown for the remainder of the season. In Touchdown II, a “line” or predicted point spread on each of twelve games is published on the Wednesday prior to the games. The player considers the published point spread and selects a team to “beat the line”, that is, to do better in the game than the stated point spread. To win, the player must choose correctly with respect to each of from four to twelve games. Depending upon the number of games bet on, there is a fixed'payoff of from $10 to $1,200. There is also a consolation prize for those who beat the line on nine out ten, ten out of eleven or eleven out of twelve games.

Scoreboard tickets are available from duly authorized agents of the Delaware State Lottery, usually merchants located throughout the State. The tickets list the teams by city names, e. g., Tampa or Cincinnati, rather than by nicknames such as Buccaneers or Bengals. Revenues are said to be distributed pursuant to a fixed apportionment schedule among the players of Scoreboard, the State, the sales agents and the Lottery Office for its administrative expenses.

THE PARTIES’ CLAIMS

The core of plaintiffs’ objections to Scoreboard is what they term a “forced association with gambling”. They complain that the football lottery constitutes an unlawful interference with their property rights and they oppose its operation on a host of federal, state and common law grounds. Briefly stated, their complaint includes counts based on federal and state trademark laws, the common law doctrine of misappropriation, the federal anti-gambling laws, the Civil Rights Act of 1871 (42 U.S.C. § 1983), the Delaware Constitution and the Delaware lottery statute.

The defendants deny that the state-run revenue raising scheme violates any federal, state or common law doctrine. Further, they have filed a counterclaim for treble damages under the Sherman and Clayton Acts for federal antitrust law violations charging, inter alia, that the plaintiffs have brought this litigation for purposes of harassment and that they have conspired to monopolize property which is in the public domain.

For the reasons which follow, I have determined that the plaintiffs are entitled to limited injunctive relief, in the nature of a disclaimer on all Scoreboard materials disseminated to the public. The Touchdown II *1377 game will also be invalidated. In all other respects, their claims for relief are denied. The defendants’ claim for treble damages is likewise denied.

I. MISAPPROPRIATION

Plaintiffs have proven that they have invested time, effort, talent and vast sums of money in the organization, development and promotion of the National Football League. They have also convincingly dem-' onstrated the success of that investment. The NFL is now a national institution which enjoys great popularity and a reputation for integrity. It generates substantial revenue from gate receipts, broadcasting rights, film rights, and the licensing of its trademarks.

There also can be no dispute that the NFL popularity and reputation played a major role in defendants’ choice of NFL games as the subject matter of its lottery. Defendants concede that in making this election they expected to generate revenue which would not be generated from betting on a less popular pastime.

Based on these facts, plaintiffs assert that defendants are misappropriating the product of plaintiffs’ efforts — or in the words of the Supreme Court, that the State of Delaware is “endeavoring to reap where it has not sown”. International News Service v. Associated Press, 248 U.S. 215, 239, 39 S.Ct. 68, 72, 63 L.Ed. 211 (1918) (“INS”). Thus, plaintiffs maintain the lottery must be halted and the ill-gotten gains disgorged.

This Court has no doubt about the continuing vitality of the INS case and the doctrine of misappropriation which it spawned. 2 I conclude, however, that plaintiffs’ argument paints with too broad a brush.

The only tangible product of plaintiffs’ labor which defendants utilize in the Delaware Lottery are the schedule of NFL games and the scores. These are obtained from public sources and are utilized only after plaintiffs have disseminated them at large and no longer have any expectation of generating revenue from further dissemination. This fact distinguishes the situation in INS. 3 In that case the Court recognized the right of INS to protection against misappropriation of the news it had collected for so long as that “product” still retained commercial value to AP. The court was careful to note that the injunction issued by the District Court limited the protection granted only until the time when “[the] commercial value as news to [AP] and all of its . [customers

had] passed away”. 248 U.S., at 245, 39 S.Ct., at 75. I do not believe the INS case or any other case suggests use of information that another has voluntarily made available to the public at large is an actionable “misappropriation”.

Plaintiffs insist, however, that defendants are using more than the schedules and scores to generate revenue for the State. They define their “product” as being the total “end result” of their labors, including the public interest which has been generated.

*1378 It is undoubtedly true that defendants seek to profit from the popularity of NFL football. The question, however, is whether this constitutes wrongful misappropriation. I think not.

We live in an age of economic and social interdependence. The NFL undoubtedly would not be in the position it is today if college football and the fan interest that it generated had not preceded the NFL’s organization. To that degree it has benefited from the labor of others. The same, of course, can be said for the mass media networks which the labor of others have developed.

What the Delaware Lottery has done is to offer a service to that portion of plaintiffs’ following who wish to bet on NFL games. It is-true that Delaware is thus making profits it would not make but for the existence of the NFL, but I find this difficult to distinguish from the multitude of charter bus companies who generate profit from servicing those of plaintiffs’ fans who want to go to the stadium or, indeed, the sidewalk popcorn salesman who services the crowd as it surges towards the gate.

While courts have recognized that one has a right to one’s own harvest, this proposition has not been construed to preclude others from profiting from demands for collateral services generated by the success of one’s business venture. General Motors’ cars, for example, enjoy significant popularity and seat cover manufacturers profit from that popularity by making covers to fit General Motors’ seats. The same relationship exists between hot dog producers and the bakers of hot dog rolls. But in neither instance, I believe, could it be successfully contended that an actionable misappropriation occurs.

The NFL plaintiffs, however, argue that this case is different because the evidence is said to show “misappropriation” of plaintiffs’ “good will” and “reputation” as well as its “popularity”. To a large extent, plaintiffs’ references to “good will” and “reputation” are simply other ways of stating their complaint that defendants are profiting from a demand plaintiffs’ games have generated. To the extent they relate to a claim that defendants’ activities have damaged, as opposed to appropriated, plaintiff’s good will and reputation, I believe one must look to other lines of authority to determine defendants’ culpability. 4 In response to plaintiffs’ misappropriation argument, I hold only that defendants’ use of the NFL schedules, scores and public popularity in the Delaware Lottery does not constitute a misappropriation of plaintiffs’ property.

In the event a differing analysis is determined to be appropriate in the course of appellate review, I should add that the plaintiffs have not demonstrated that the existence of gambling on its games, per se, has or will damage its good will or reputation for integrity. By this, I do not suggest that an association of the NFL with a gambling enterprise in the minds of the public would not have a deleterious effect on its business. Such an association presupposes public perception of NFL sponsorship or approval of a gambling enterprise or at least confusion on this score, and I treat this subject hereafter. I do find, however, that the existence of gambling on NFL games, unaccompanied by any confusion with respect to sponsorship, has not injured the NFL and there is no reason to believe it will do so in the future. The record shows that extensive gambling on NFL games has existed for many years and that this fact of common public knowledge has not injured plaintiffs or their reputation.

The most prevalent form of such gambling is the illegal form- — office polls and head-to-head bets with bookies. Virtually every witness testified that he was familiar with illegal football pools and knew they were available in schools, factories and offices around -the country. John J. Danahy, Director of Security for the NFL and a former member of the Federal Bureau of Investigation, estimated that millions of dollars a week are spent for illegal betting *1379 on football games and that such gambling provides a major source of income to organized crime. 5

In addition to the illegal gambling, the evidence shows that there is a substantial volume of legalized sports betting. In Nevada, sports betting, including betting on NFL games, has been legal since 1949. The parties have stipulated that sports betting in Nevada in the fourth quarter of the year, when the betting is primarily on football games, has reached the following levels: 6

1972 $ 873,318

1973 $ 826,767

1974 $ 3,873,217

1975 $26,170,328

These figures represent both “by event” or “head-to-head” betting and parlay card betting. In addition, pool card gambling on professional football has been legal in Montana since 1974. The NFL has not shown that any of this gambling, legal or illegal, has injured the reputation of professional football or the member teams of the NFL.

Some comment on the plaintiffs’ survey evidence on this subject is in order. A market survey was conducted at the direction of the plaintiffs for use in this litigation. One of the questions asked of those surveyed was:

Suppose there would be legalized betting on National Football League games which was run by a state agency in each of the various states. Do you think that the reputation of the National Football League would be better, stay the same or be worse than before legalized betting?

Those who responded that they thought the NFL’s reputation would decline were asked in a follow-up question to explain why they thought so. Fifty percent of those responding in the “National” portion of the survey said that they believed the NFL’s reputation would be hurt. Those who conducted the survey broke down the reasons given for that belief into four separate categories:

26% Will mean more crime

29% Opposed to betting

19% Throwing or fixing game

30% Takes sportsmanship out of the game

While these results do suggest that gambling on NFL games would adversely affect the NFL, there are several reasons why I cannot credit the data. Most importantly, there is the overwhelming evidence already reviewed that, in actual experience, widespread gambling, both illegal and state-authorized, has not hurt the NFL. That evidence is far more persuasive than survey results based on hypothetical questions. 7

In addition, there are a number of problems with the form of question used in the survey. It asks the person responding, not whether he or she would think less of the NFL, but rather whether he or she thinks others would have less regard for the NFL. The response is by nature speculation and it is quite conceivable that many who would have no objection to state-run sports betting would assume that others would hold a different view. The question as asked did not elicit relevant information.

Moreover, the question assumed that every state would institute such a program. While it has been suggested that a few other states are considering football lotteries, I have no reason to believe that the Delaware scheme will be imitated by forty-nine other states. In any event, the issue before this Court is whether Delaware’s Scoreboard games will injure the NFL’s reputation. The question asked in the “national” survey addressed a far broader subject which the plaintiffs have not shown to be relevant.

Finally, the phrasing of the question did not emphasize á proposed system run inde *1380 pendently of the NFL. As will be seen, 8 that may have influenced some responses.

II. TRADEMARK AND RELATED UNFAIR COMPETITION CLAIMS

The Delaware Lottery does not utilize the NFL name or any of plaintiffs’ registered service marks for the purpose of identifying, as opposed to describing, the service which it offers. The name utilized for the football related betting games is “Scoreboard” and the individual games are identified as “Football Bonus”, “Touchdown” and “Touchdown II”. No NFL insignia or the like are utilized in the advertising. The cards on which the customers of the Delaware Lottery mark their betting choices, however, identify the next week’s NFL football games by the names of the cities whose NFL teams are scheduled to compete against each other, e. g., Philadelphia v. Los Angeles, Washington v. Baltimore, etc. It is stipulated that, in the context in which they appear, these geographic names are intended to refer to, and are understood to refer to, plaintiffs’ football teams. It is in this manner that defendants have made it known that the Delaware Lottery offers the opportunity to bet on NFL football.

Undoubtedly when defendants print “Philadelphia v. Los Angeles”, the public reads “Philadelphia Eagles v. Los Angeles Rams”, and, in this sense, the words utilized by defendants have a secondary meaning. But I do not understand this fact alone to constitute infringement of plaintiffs’ registered marks or unfair competition. Defendants may truthfully tell the public what service they perform, 9 just as a specialist in the repair of Volkswagen cars may tell the public of his specialty by using the word “Volkswagen”, 10 and just as the manufacturer of a razor blade may advertise the brand names of the razors they will fit. 11 The same rule prevails in the area of comparative advertising which utilizes the tradenames of competing products. 12

What one may not do, however, is to advertise one’s services in a manner which creates an impression in the mind of the relevant segment of the public that a connection exists between the services offered and the holder of the registered mark when no such connection exists. 13 Moreover, this legal prohibition imposes a duty to- take affirmative steps to avoid a mistaken impression which is likely to arise from a truthful description of the service even though it does not literally suggest a connection. 14

This case presents a novel situation for application of these well established principles. After carefully reading all of the materials disseminated in connection with the Delaware Lottery, I cannot point to any specific statement, symbol, or word usage which tends to suggest NFL sponsorship or approval. At the same time, however, plaintiffs have convinced me that a substantial portion of the present and potential audience for NFL games believes that the Delaware Lottery is sponsored or approved by the NFL.

In what is denominated the “Delaware Special” portion of the market survey re *1381 ferred to above, 15 19% of the Delaware residents surveyed and 21% of those designated as “fans”, 16 either said that, as far as they knew, the legalized betting on professional football was arranged by the State with the authorization of the teams or said that it was conducted by the teams alone. Before answering, some of those questioned were shown a sample lottery ticket and others were not. The results did not vary significantly between the two groups. These figures establish that there is substantial confusion on the part of the public about the source or sponsorship of the lottery. 17

This Court perceives only one way to reconcile these survey results with the absence of any affirmative suggestion of sponsorship or approval in the Delaware Lottery advertising and materials. Apparently, in this day and age when professional sports teams franchise pennants, teeshirts, helmets, drinking glasses and a wide range of other products, a substantial number of people believe, if not told otherwise, that one cannot conduct an enterprise of this kind without NFL approval.

While defendants are guilty of no affirmative statements suggesting affiliation and may well not have foreseen that a substantial number of people would infer an association with the NFL, the fact remains that the ultimate result of their promotion of the Delaware Lottery is significant public confusion and the loss to the NFL of control of its public image. I conclude that this fact entitles plaintiffs to some relief.

The only monetary relief sought by plaintiffs — a judgment directing transfer of the proceeds of the Lottery to NFL Charities Incorporated — is inappropriate. These proceeds are not funds that the NFL would have harvested for itself in the absence of the Lottery. Nor is there any reason to believe that the retention by the State of any of these proceeds would result in unjust enrichment. I have previously held that Delaware has a right to profit from a demand for gambling created by NFL games. Relief is appropriate only because of the failure of the defendants to avoid an impression of sponsorship, and this record does not suggest that the proceeds of the Lottery were in any way augmented by any public perception of affiliation. Given the nature of the service provided, I strongly suspect that this limited perception had no effect on revenue.

To eliminate the confusion as to sponsorship, an injunction will be entered requiring the Lottery Director to include on Scoreboard tickets, advertising and any other materials prepared for public distribution a clear and conspicuous statement that Scoreboard is not associated with or authorized by the National Football League. 18

Officials of the Delaware Lottery volunteered early in this litigation to employ such a disclaimer. The NFL was dissatisfied with the proposal and, as a result, the Lottery Office took no steps to adopt it. Scoreboard tickets were inscribed with the statement, “The ‘Scoreboard’ Lottery is sponsored solely by the Delaware State Lottery”. However, this appeared at the very *1382 bottom of the back of the tickets and was not included in defendants’ advertising and other promotional materials.

The survey indicates that this approach to the problem was not sufficient to dispel the idea that the NFL was somehow associated with the Lottery. That survey does not suggest to the Court, however, that a prominent statement on all Scoreboard materials disclaiming any affiliation would be insufficient to protect plaintiffs’ legitimate interests.

III. DELAWARE TRADEMARK ACT

In a letter memorandum submitted after its initial post-trial brief, plaintiffs added for the first time the contention that Scoreboard violates the newly enacted Delaware Trademark Act, 6 Del.C. § 3301 (60 Del. Laws, Ch. 612). I have no occasion to consider the merits of that contention because the statute, by its very terms, does not apply to this case.

The Trademark Act, signed into law by the Governor on July 22, 1976, provides:

This act shall be in force and take effect 1 month after its enactment but shall not affect any suit, proceeding or appeal then pending. (Emphasis added).

This lawsuit was filed on August 20, 1976, and thus, was pending when the Act became law. Despite the plain language of the new statute, plaintiffs attempt to bring themselves under its mantle in this lawsuit by arguing that, if they are not permitted to do so, they may institute a new lawsuit raising the same claim. That course of action may indeed be open to them but it does not further their cause in this suit. I cannot disregard the plain command of the statute.

IV. DELAWARE LOTTERY LAW ■ The plaintiffs assert that the State Lottery Office is acting ultra vires in conducting the Scoreboard games. The NFL points to Article II, Section 17 of the Delaware Constitution which prohibits all forms of gambling-in the State except lotteries under state control, pari-mutuel wagering on State licensed races, and Bingo. 19 The heart of their contention based on Section 17 is that Scoreboard is not a lottery. The NFL further contends that, even if Scoreboard is a lottery within the meaning of the Constitution, the Lottery Office is operating it in a manner inconsistent with the requirements for state lotteries established by the General Assembly. The State’s first line of defense is that the NFL lacks standing to raise these ultra vires arguments.

A. Standing

The question of standing with respect to claims based on the State Constitution and. a State statute is governed by Delaware law. In the past, the Delaware Supreme Court has looked to and followed the rules of standing established in the federal courts on the law of standing as well as to its own precedents. I have done likewise here.

In Mills v. Trans-Caribbean Airways, Inc., 272 A.2d 702, 703 (Del.1971), the court held that standing to attack the constitutionality of a statute or any action taken thereunder depends on a showing that “a right of the complainant is affected thereby”. Association of Data Processing Services Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970), sets forth a three-part analysis by which to determine whether such a litigable right exists. Camp held that a party must allege injury in fact; he must show that he is “arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question”; and *1383 finally, the complainant must establish that judicial review has not been precluded. 397 U. S. at 152-156, 90 S.Ct. at 830. Later cases have emphasized that the interest the plaintiff alleges must not be one which is held in common by all members of the public. Plaintiff must be suffering or threatened with a concrete, particularized injury. Schlesinger v. Reservists to Stop the War, 418 U.S. 208, 220, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974).

The original version of Section 17 contained a general prohibition of all forms of gambling in the State. It is fair to assume that it was based on some generalized belief that gambling was a corrupting, dangerous influence in society from which the people of the State should be protected. 20

Over the years, the constitutional provision has been amended in stages. Each amendment was designed to exempt from the general prohibition some particular form of gambling. Undoubtedly the amendments reflect a changing perception about the evils of gambling. Nevertheless, Section 17 continues to reflect a concern about the potentially deleterious influence of gambling on society.

A police power regulation of this kind is for the benefit of the society at large. As a component of that society, the NFL is within the zone of interests to be protected. In addition, the NFL has alleged a concrete injury in fact to itself. The NFL charges that the likelihood that games will be fixed or, more likely, that the public will imagine that the games have been fixed to produce a large payoff will hurt its reputation. In addition, it asserts that the same ill will toward gambling that prompted the legislature to enact the constitutional provisions will drive away those NFL fans who believe that the NFL has consented to or approved gambling on its games. This is a sufficient stake in the outcome to ensure that the matter has been presented in a true adversary context. Finally, the State does not contend that review has been precluded. Accordingly, the NFL has standing to make its constitutional claim.

The standing analysis with respect to NFL’s contention that Scoreboard violates the lottery statute, 29 Del.C. § 4801, et seq., is much the same. The lottery statute embodies the same underlying mistrust for gambling qualified by the idea that State control will obviate the undesirable aspects of gambling while providing the State with a source of income. The zone of interests protected is the same and the same allegations of injury are sufficient.

B. Validity Of Scoreboard. Under The Delaware Constitution

The 1974 Amendment to Article II, Section 17 of the Delaware Constitution authorizes lotteries under State control. It does not define the term “lottery”. The NFL contends that the word lottery has a well established meaning in the law and that the Scoreboard games do not fall within that meaning because they entail an element of skill.

It is unquestioned that there are three elements necessary to a lottery: prize, consideration and chance. 21 However, there is a split of authority as to whether a game that incorporates an element of skill as well can qualify as a lottery. Two approaches to the question have developed:

Under the English rule, a lottery consists in the distribution of money or other property by chance, and nothing but chance, that is, by doing that which is equivalent to drawing lots. If merit or skill play any part in determining the distribution, there is no lottery. . In the United States, however, by what *1384 appears to be the weight of authority at the present day, it is not necessary that this element of chance be pure chance, but it may be accompanied by an element of calculation or even of certainty; it is sufficient if chance is the dominant or controlling factor. However, the rule that chance must be the dominant factor is to be taken in the qualitative or causative sense. [Footnotes omitted]

3 Wharton’s Criminal Law and Procedure § 935 (Anderson ed. 1957).

The Delaware courts have not ruled on whether the “pure chance” or “dominant factor” rule applies in this State. Compare State v. Sedgwick, 2 Boyce’s 453, 25 Del. 453, 81 A. 472, 473 (1911). The courts of two adjoining states considered this problem in the context of privately operated football pools and they concluded that the pools did fall within the meaning of lottery despite the presence of an element of skill. State v. Steever, 103 N.J.Super. 149, 246 A.2d 743 (1968). Commonwealth v. Laniewski, 173 Pa.Super. 245, 98 A.2d 215 (1953). In addition, over the last ten years the trend toward acceptance of the dominant factor rule described in Wharton has continued and expanded. See, e. g., Morrow v. State, 511 P.2d 127, 129 (Alaska 1973); Finster v. Keller, 18 Cal.App.3d 836, 96 Cal. Rptr. 241 (1971). Absent clear language in the Constitution supporting a contrary rule, I believe the Delaware Supreme Court would be inclined to adopt the majority, dominant factor rule.

Further support for the dominant factor rule can be found in the legislature’s interpretation of the word lottery. The Delaware Constitution may be amended by a two-thirds vote of the General Assembly in two successive sessions with an intervening election. Del.Const., Art. XVI, § 1. The Amendment to Section 17 authorizing state lotteries was voted on favorably by the 126th General Assembly in 1972 and by the 127th General Assembly in 1973. The same Legislature that gave final approval to the constitutional amendment in its second session in 1974 established the State Lottery and State Lottery Office. 29 Del.C. § 4801, et seq. In doing so, it construed the term lottery broadly:

“Lottery” or “state lottery” or “system” shall mean the public gaming systems or games established and operated pursuant to this chapter and including all types of lotteries.

29 Del.C. § 4803(b). The Scoreboard games fall well within the accepted definitions of those terms. “Games” or “gaming” embrace a far wider range of activities than those based on pure chance. 22 Moreover, the legislature contemplated that some lottery games would be related to or based on sporting events. 29 Del.C. § 4805(b)(4). 23

This broad legislative definition is significant because the Delaware courts subscribe to the rule of construction that when terms of the Constitution are ambiguous, the interpretation of the legislature is entitled to deference. In State v. Hart, 3 W.W.Harr. 15, 33 Del. 15, 129 A. 691 (Del.Super.1925), the court commented:

If it was not clear from the Constitution when a vacancy shall be filled by *1385 election it would be not only proper but necessary to consider any law that would remove the uncertainty, but a statute may not be considered in construing a constitutional provision which is so clear and complete that there is no room for construction. Construction implies a precedent obscurity in the instrument on which it is brought to bear. Black on Interpretation of Laws, §§ 1 and 2.

Given the near contemporaneous approval of the lottery amendment and the lottery statute, application of this rule of construction is particularly appropriate in this instance.

In sum then, I conclude that the legislative interpretation of the term lottery together with the weight of authority in other jurisdictions would persuade the Delaware Supreme Court that “lottery” should be interpreted to encompass not only games of pure chance but also games in which chance is the dominant determining factor. The question that remains is whether chance is the dominant factor in some or all of the Scoreboard games. Both the evidence and the case law suggest that it is.

The operation of Football Bonus, Touchdown and Touchdown II are described above. 24 The winners of each are determined by the outcome of the NFL games. Plaintiffs acknowledge that the results of NFL games are a function of myriad factors such as the weather, the health and mood of the players and the condition of the playing field. Some educated predictions can be made about each of these but each is also subject to last minute changes and to an element of the unknowable, or to put it another way, to an element of chance.

In Scoreboard, the unknowable factors in each game are multiplied by the number of games on which the Scoreboard player bets. None of the games permits head-to-head or single game betting. Thus, the element of chance that enters each game is multiplied by a minimum of three and a maximum of fourteen games. In addition, in Touchdown II, the designated point spread or “line” is designed to equalize the odds on the two teams involved. This injects a further factor of chance.

The evidence tends to show that for the first nine weeks of the 1976 season chance was the dominant factor in the outcome of both the NFL games and the Delaware Football Lottery. “Jimmy the Greek” is a widely recognized oddsmaker, syndicated columnist and television personality who earns his living in part by predicting the outcome of NFL games. 25 The record shows that, although he correctly predicted the winner of 101 out of 126 NFL games from September 12 through November 8, if he had bet on both pools of games in Football Bonus each week, he would have won only three times. He would never have won the All-Game Bonus awarded to those who correctly choose the winners of all fourteen games in a single week. We cannot determine how he would have fared in Touchdown because we do not know which three, four or five games he would have placed wagers on each week. However, he successfully predicted the point spread in only 38 out of 126 games in nine weeks. This strongly suggests that expertise would not have carried the day in this game either.

We do not know anything about football expertise of those who actually played Scoreboard. Nonetheless, over the first nine weeks, the average percentage of winners in each pool of Football Bonus and among the three-game Touchdown bettors hovered around 5%. 26 Among those who bet on five games, the average percentage of winners was .22%. These results lend further support to the contention that *1386 chance rather than skill is the dominant factor in the games.

Other courts have likewise concluded that football betting pools and other similar betting schemes based on sporting events qualify as games of chance. In Commonwealth v. Laniewski, 173 Pa.Super. 245, supra, 98 A.2d at 217, responding to a claim that football pools are not games of chance, the court said:

Past records, statistics and other data might be consulted and, by reasoning from them, a forecast might be made as to the outcome of any particular game or games. However, there are many unpredictable elements which can and do enter into , the eventual outcome. These elements — including the fact that at least twenty-two men are concerned in playing the game — constitute the chance which makes this particular pool a lottery. No one knows what may happen once the game has begun.

Accord State v. Steever, 103 N.J.Super. 149, 246 A.2d 743 (App.Div.1968).

The plaintiffs make an alternate argument that the Scoreboard games do not fall within the definition of lottery based on the history of Section 17. They point to earlier versions of the constitutional provision which distinguished between lotteries and pool selling and prohibited both. They contend that this establishes that, under Delaware law, there is a distinction between the two types of gambling activity that survives the 1974 amendment and that pool selling continues to be a prohibited activity under the general interdiction of “all forms of gambling”. I do not believe any clear inference as to legislative intent can be drawn from the failure to mention pool selling in the revised Section 17. However, if I were inclined to draw one, I find defendants’ explanation, that the General Assembly intended to drop the distinction between lotteries and pool selling and to leave open the possibility that the State Lottery Office might adopt a pool selling type game as part of the State Lottery the more plausible one.

C. Validity Of Scoreboard Under 29 Del.C. § 4801, et seq.

1. Duty to Affiliate

Plaintiffs assert next that, even if sports betting pools are permitted by the Delaware Constitution, the Lottery Director has violated the command of 29 Del.C. § 4805(b)(4) to enter into a contract of affiliation with the NFL before commencing a betting scheme based on its games. The NFL reads the relevant provision more narrowly than I believe is warranted. The statute provides:

(b) The Director shall also have the power and it shall be his duty to:

* * * * * *

(4) Enter into contracts for the operation of any game or part thereof and into contracts for the promotion of the game or games. This authorization is to be construed to include, but not be limited to, contracting with any racing or other sporting association to conduct sporting events within any racetrack or sports field in the State the outcome of which shall determine the winners of a state game or, as an alternative, to affiliate the determination of the winners of a game with any racing or sporting event held within or without the State.

The NFL argues that this section requires the Lottery Director to obtain the