[BobC]

Originally Posted by GasHouseGang

I have to ask. Are these "set breaks" legal? I tried to search online, and attorneys generally seem to agree there are areas of the law that may apply to box breaks and set breaks. With the caveat that the statutes may not apply to all types of box and set breaks and each situation needs to be analyzed individually.

The Cardboard Connection blog had this written by Dale Joerling:

The primary laws that apply to box breaking are state anti-gambling statutes. Virtually every state has some form of these laws. They provide that if a game, sweepstakes, lottery, giveaway, or sale of a product or service has: 1) a prize, 2) an element of chance in determining the winner, and, 3) consideration, i.e. some type of payment or activity to participate, it is an illegal form of gambling.

The principal issue with respect to box breakers would be whether all three of those elements are present: prize, chance, and consideration. Let's break down the basic elements of a box break:

Special, rare, or valuable cards or memorabilia included in some but not all boxes of less valuable cards could be seen as a prize.
Randomly including these more valuable cards in a box could be viewed as creating an element of chance of winning a prize.
Requiring people to buy a box of cards to participate may constitute consideration.
It appears that it may be possible that all three elements could be present in certain box break situations.

Some states have other statutes that could also be applicable. For example, California has a grab bag statute that pertains specifically to using grab bag types of promotions to sell trading cards.

If everyone wins "something" in a box break, does that adequately respond to the illegal gambling issues?

In most instances, the fact that "everyone could win something" is not enough to remove the element of chance. However, if everyone wins the same prize or, in some cases, the same prize value, it could be found that the element of chance has been eliminated because the participants know the value of what they will receive before they make their purchase.

I thought the issue should be brought up since it's so prevalent in our hobby. The answer could be, "It depends."

Yeah, that has been brought up before David. There are other threads out there with the same/similar question and discussions. And I remember taking part in at least one such thread myself and going through and talking about the same three elements of gambling as you did.

As you said, the actual correct answer as to whether or not Breaking is illegal gambling seems to be - It depends!

Laws vary state by state, and how one state may apply such laws to a Breaker entity that is based and located in an entirely different state, isn't that clear. I know some guys that run one of the fairly well-known Breaker entities, based out of Ohio. And they had told me they hopefully get around the gambling definition by ensuring that everyone participating in every one of their breaks/raffles/razzes gets something, even if they would have normally gotten nothing from following the regular rules of the break. They send them something out of their own pocket/collection to ensure everyone "wins" at least something for the consideration they paid for their spot in the break/raffle/razz, or whatever you want to call it.

From what I've heard and seen, and for the record I am not an attorney, no states have gone after any Breakers in any state for illegal gambling, at least not that I've ever been made aware of. First off, I don't think any of the states see it being worth their time or trouble to go after all these Breakers, sort of a cost-benefit question/issue, if you will. Secondly, if some state ever did decide to go after a Breaker for illegal gambling, even if the Breaker makes sure that every participant in the break/raffle/razz gets something, that would then raise the question of why that state isn't also then going after Topps, Panini, and all the other card manufacturers for illegal gambling as well. Think about it, what is really the difference between buying a spot in a break/raffle/razz where a group of participants split up the contents of a box or case of cards, and those same individual participants merely buying the individual packs in the box or case, and then opening them themselves? If you think about it, the entire concept behind a pack of modern cards could be deemed to have all three gambling elements as well then.

"Consideration" is a given, since you have to pay for the pack. The "Prize" is the special limited edition/autographed/game-used, and other manufactured rarities cards that the card manufacturers will sprinkle throughout the packs they make and sell that are considered as rare and valuable. That leaves "The Element of Chance in Determining the Winner", which could be construed as the risk/chance you take in buying a pack since you don't know if any special or valuable cards will be in any particular pack. So, it seems to me that if some state did try to go after a Breaker for illegal gambling, I could easily see defense attorneys pushing to know why they aren't also going after a company like Topps as well then. It comes back to the concept that even in a break/raffle/razz, the participants are at the end of the day simply buying a product (or part of a product) that is being sold in a somewhat or slightly different way. And it seems that as long as everyone spending money to buy into the break/raffle/razz gets something from it, the states aren't going to try arguing it as a form of illegal gambling.

Let's face it, Breaking has been around long enough now that if any state really thought they could claim it was illegal gambling and go after the people doing it, don't you think at least one of them would have done so by now?

And I think the same concept may flow over to vintage breaks as well. The big difference with vintage type breaks is that the participants may actually know exactly what cards they could end up getting, and thus know for a fact that certain cards are worth more and therefore considered as known prizes. In a typical modern break, no one really knows what is going to be in the box/case being opened up, and if there will be anything of real value included in what is being opened. Do a vintage break of say a 1952 Topps set, and everyone knows the Mantle card is likely the big prize. But I think the states still look at this as more of a sale of the set, but instead of to just one individual, a sale to a group of individuals who have pooled their money to buy the entire set, and have agreed to specific terms as to how they will then divvy the cards up among themselves. So again, it looks like as long as everyone taking a spot in the vintage break gets something, they technically have purchased and not necessarily won they card(s) they end up with. And again, these types of vintage breaks have been going on unhidden and out in the open for quite a while as well now. So, if you suspect any state of having an illegal gambling issue with what is being done, you again would have expected at least one of them to have done something about it against some Breaker by now. The concept of a "Prize" as a gambling element may be construed as actually receiving something versus not receiving anything. The primary law seems to say nothing about a possible difference in value(s) among the potential prize(s) one may win in a break, but looks more at is someone receiving anything at all, versus receiving nothing.

Again, not an attorney, but just using my logic and business law experience/knowledge. But because of the differences in state laws, it probably still behooves each Breaker to review the specific laws of the state in which they are based and operate out of. Think of it this way. What if Mastro Auctions had been based out of Texas, like Heritage Auctions is, instead of Chicago? Heritage Auctions can actually bid in their own auctions (shill bid) since that is technically not illegal for an auction house to do so under Texas law. Meanwhile, Mastro was headquartered and run out of Illinois, which did not allow for auction companies to bid in their own auctions (shill bidding). Since shill bidding I believe was the primary thing the feds initially went after and investigated Mastro for, had they been headquartered and run out of say Dallas or Houston, they might have never ended up in the trouble they did, and with people ultimately going to jail. I could be wrong in my thinking and memory, and welcome corrections from anyone that knows better.