Edited by Lawyer Francesca Sarallo
It is important to clarify from the outset that a bet can be considered “on an open schedule” when the bettor, being aware of the exact final outcome of the event, as it has already concluded, places their bet.
This particular circumstance can occur in relation to sporting events taking place in parts of the world with a different time zone, which, combined with a dishonest attitude of the bettor and, at the same time, a malfunction of the IT system that allows accepting bets that it should not have accepted, generates this phenomenon.
The issue of “open schedule” bets has resurfaced following the Judgment of the Court of Palermo, Section III, dated August 5, 2020, n. 2509[1].
In the cited dispute, the plaintiff, having placed five bets, all winning, on certain football matches played in Costa Rica as part of the “Campeonato Invierno Banco Popular 2015,” sought a ruling against the bookmaker for the payment of the winnings. The bookmaker promptly opposed this claim, arguing that the bets were related to sporting events that had already concluded, thus rendering the betting contract void.
Before analyzing the decision of the aforementioned Court, it is appropriate to provide a brief overview of the betting contract. A bet is an aleatory contract concluded between two parties, whereby the bettor “stakes” a certain amount of money on the outcome of an event, usually a sporting event, which has not yet taken place. The bookmaker agrees to return this sum, increased by a predetermined percentage, if the result of the event corresponds to the one on which the bettor wagered[2].
The ruling of the Court of Palermo found the lack of contractual uncertainty and, consequently, declared the “nullity of the betting contracts for lack of cause,” while still accepting the plaintiff’s claim for the refund of the bet, in accordance with Article 7 of Ministerial Decree no. 111/2006, which regulates fixed-odds betting on sporting events. This decree expressly states that: “The participant has the right to reimbursement (…) c) in relation to bets on sporting events, in case of failure to close the acceptance of bets due to the anticipation of the start time of the events subject to the bet.”
This decision follows a trend that has been gradually consolidating over the years.
The remote hypothesis of the validity of an “open schedule” bet would deprive the bookmaker of any protection: the latter would be forced to pay out winnings on events for which the final result is already known.
To uphold such an argument in court, devoid of substance and symptomatic of bad faith or gross negligence on the part of the bettor, would mean acting without due diligence, potentially leading to issues of liability for frivolous litigation[3].
In conclusion, it seems necessary to emphasize that the parties to a contract, even when concluded online, must always conduct themselves according to principles of fairness and good faith, which certainly cannot include taking advantage of a malfunction in the counterparty’s IT system[4].
[1] On this topic, see also: Trib. Nola, Section I, Order dated July 4, 2020; Trib. Napoli Nord, Section II, July 14, 2020, n. 1562; Court of Appeal of Trieste, Section I, July 22, 2020, n. 333.
[2] Cfr. CASSANO G., “The nullity of the contract in the particular case of bets on a concluded event, so-called ‘on an open schedule,'” in Diritto di Internet, Pacini Giuridica, n. 4/2020.
[3] Cass. civ., Section VI – 2, Order, June 18, 2020, n. 11766. The Court stated that, in terms of liability for frivolous litigation, a potential conviction presupposes at least gross negligence on the part of the losing party, which is evident in cases of violation of the minimum degree of diligence that, if employed, would allow for the realization of the lack of merit in their claim.
[4] CASSANO G., cit.
