SARA KLOCK—To participate in a marathon, it takes endurance, stamina, and lots of food. Frankly, all day Netflix marathons can be exhausting. But for about 80,000 people, their type of marathon does not include sitting on the couch and watching the entire season of House of Cards (Season 4 comes out March 4th). Rather, these individuals train for months with hopes to run through all five boroughs of New York City in the New York City Marathon. Yet, of the 80,000 runners who enter the drawing for a coveted spot each year, fewer than twenty percent of runners who enter ultimately run the grueling 26.2 miles.
Two of these rejected runners do not blame their fates on lack of endurance or speed, but on New York City Road Runner’s Inc. (“NYRR”)—the nonprofit that organizes the NYC Marathon—and their allegedly illegal lottery practices.
While marathons have been around since Pheidippides ran from Athens to Sparta, the first woman to run a marathon was Kathrine Switzer in 1967. She was formative in the breakdown of barriers within distance running. Further, she contributed to the growth in marathon popularity—both in watching and running the races. But to deal with this influx in popularity, marathon organizers created a drawing system—as many people who desire to enter their name into the drawing can do so, but not everyone entered is guaranteed spot on race day.
NYRR must limit the number of racers for practical reasons and runner safety. There is a bifurcated process for obtaining a guaranteed spot to run the NYC Marathon. First, runners can automatically get a spot with either a qualifying time or by completing 15 previous NYC Marathons. Second, without meeting these requirements, individuals can enter the general drawing and hope to get a guaranteed race bib. Both processes require an $11 fee to enter the pool of potential runners. Then, only a select number of those individuals from the general pool have their names drawn.
On opening day of the 2016 NYC Marathon registration, plaintiffs filed a proposed class action alleging that NYRR is violating New York State’s “chance-based” lottery laws. Specifically, the plaintiff’s allege that the $11 fee to enter the drawing is effectively a lottery to win a prize, thus, they entered into a chance-based lottery. Moreover, because NYRR did not obtain an identification number for their lottery system, they were managing a gambling operation in the State of New York without a gaming license. Plaintiffs seek $10.5 million in class damages.
Article I, Section 9, of The New York State Constitution prohibits any “lottery or sale of lottery tickets, pool-selling, book-making, or any other kind of gambling, except lotteries operated by the state . . . .” New York Penal Code defines gambling; “[a] person engages in gambling when he stakes or risks something of value upon the outcome of a contests of chance . . . not under his control or influence . . . .” And, ultimately, only the state can run lotteries based on chance. However, New York Gaming laws define “Games of Chance” as “only the games known as ‘merchandise wheels,’ ‘raffles,’ ‘bell jars,’ ‘coin boards,’ ‘merchandise boards,’ ‘seal cards’ and such other specific games as may be authorized by the commission.” While there seems to be a disconnect with “Games of Chance” and the New York Penal Code, plaintiffs still filed a class action compliant alleging that what NYRR is doing violates New York law and public policy.
NYRR claims that their policies are compliant with the law and the $11 “processing fee”—as they refer to it—is to help support the function of the marathon and the “not-for-profit community based running organization.” NYRR charges the same processing fee “to everyone who registers for the marathon regardless of whether they participate in the drawing or receive a guaranteed entry.” As such, NYRR believes that the random selection of entrants to run the marathon is considered a “drawing”—not a lottery. Their drawing system is a three-tier system based on residence. The first drawing is for NYC-Metro area residents, the second for national applicants, and the third for international runners. Again, the only guaranteed spots are those who pre-qualify.
However, NYRR may have an uphill battle ahead of them because an agreement between the federal government and the World Triathlon Corporation (“WTC”) places lottery-based registration systems in peril. The WTC had a lottery system in place to enter the Ironman World Championship in Kona, HI. But that agreement was found to be illegal because the entrance process that potential participants had to face: a non-refundable fee to enter the drawing and that those selected had to pay an additional fee to register. The WTC was forced to pay $2.7 million to the federal government for money collected between the 2012–2015 races, and it can no longer practice a lottery-based regulation system.
A ruling like this can throw the racing world into frenzy for NYRR or any not-for-profit race organization. As a distance runner, you should understand that if you do not have a qualifying time, then you might not be able to run that race. No truer words could be said to the two Utah runners who filed this class action: “Life [is] like a box of chocolates. You never know what you’re gonna get,” including a spot to run in the NYC Marathon.
