Hard Rock Taps NASCAR Historical Data For Slots-Like Game, Based On Unique Compact Language

Hard Rock Bet’s new slots-like, sports-betting-powered game in Florida was made possible by a unique bit of language in the 2021 compact that gave the Seminole Tribe of Florida a monopoly on sports betting in the state.

Launched last Tuesday, the 21-game package mimics traditional online slot play but uses the results of NASCAR races from the past 20 years instead of a random number generator to determine outcomes.

Online casino games are not legal in Florida. Hard Rock’s new games are legal, the company says, because they are a sports betting product, according to a unique line in the compact that describes acceptable sports markets as based upon “any past or future sports or athletic event” that includes “any motor vehicle race.”

NASCAR was unaware the product using its historical data was coming and declined comment to Casino Reports. (And NASCAR probably would not have any specific ownership claim in the past results, by the way, owing to the seminal case C.B.C. Distribution vs. MLB Advanced Media, in which the Eighth Circuit Court of Appeals held that player data and performance results were in the public domain.)

Hard Rock Bet referred questions from Casino Reports about the games to the compact language and its terms and conditions.

This ground-breaking application of historical data is not expected to spark a national intellectual property dispute as Casino Reports has been unable to find such language in other state betting rules. Hard Rock has not launched the game in any of the other eight states where it offers sports betting through state licensure, and that is because the language and nature of the Seminoles’ compact with Florida is unique and applicable only to Florida. Whether a Florida-specific intellectual property dispute may be coming remains to be seen.

The language in the Florida compact can be seen here:

Who owns old sports data?

Hard Rock does not believe it needs to license the data from these past NASCAR events, much like historical horse racing (HHR) operators. Hard Rock’s terms and conditions for the new games refer to the slot interface as “entertaining video depictions.” While no likenesses of NASCAR marks are used, drivers’ names and car numbers are. So are official names of past series races.

Factual information, like race results, are not copyrightable, which was affirmed in Nat’l Basketball Ass’n v. Motorola, Inc., 105 F.3d 841 (2d Cir. 1997). An intellectual property source said that compiled information can be afforded some protection, however. In addition, the Florida publicity-rights statute prohibits the use of an individual’s name “publicly for purposes of trade or for any commercial or advertising purpose” without consent of the individual or a “firm of corporation” authorized to do so.

Industry sources described the use of human data in this type of game as an innovation.

This is how the game works, according to Hard Rock:

Hard Rock’s game resembles HHR

In HHR, results and identifying information such as the names of jockeys and horses are scrubbed before a spin is made but revealed once play begins. These games are regulated as pari-mutuel wagering because they do not utilize random-number generators like the slot machines they resemble.

HHR machine algorithms use real data to recreate outcomes, but Hard Rock’s offering uses the exact finishes of past races. According to the app: “The sports wager outcomes are based on player selections of the results of past motor races. The objective of the wager is to correctly select the finishing positions of as many drivers as possible in three races chosen from a database of past motor races.”

While playing the Mega Fire Blaze: Big Circus! game, Casino Reports utilized an option to manually pick the winners of the ensuing races. The platform displayed four cars without recognizable NASCAR car numbers, sponsors, or drivers, labeling them A through D. A graphical past performance was also available, but without identifying data.

Once the race was conducted by tapping a play button, results were displayed with Brad Keselowski winning in the No. 2 car, Kyle Larson second in the No. 42, Matt Kenseth third in the No. 20, and Kasey Kayne fourth in the No. 5 in the Folds of Honor QuikTrip 500 on March 5, 2017 at Atlanta Motor Speedway. (The race date was incorrect on the app.)

Hard Rock believes it’s in the clear

In its terms and conditions, Hard Rock asserted that its compact “authorized” the use of historical data. Hard Rock took what can be seen as a conservative approach when it shuttered its first attempt at mobile sports betting in Florida for almost two years as opponents fought its so-called hub-and-spoke application. That past willingness to remove a product in a legal gray area suggests the company considers itself on solid legal footing with the new games.

Among the offerings conceded to Hard Rock in the 2021 compact, which runs for 30 years, was “any new game authorized by Florida law for any person for any purpose.”

Regarding how Hard Rock would settle bets, according to the compact, “Any data source and the corresponding data to determine the results of all sports bets must be (i) complete, accurate, reliable, timely and available and (ii) appropriate to settle the types of events and wagers for which it is used” is permissible.