Tag Archives: Theater Coaltion for a Fair Game

a wicked concert cartel?

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 An article in today’s Schenectady Daily Gazette suggests that fears we expressed and explained in 2014, here and there, were warranted as to the likely anticompetitive and anti-consumer nature of the so-called Fair Game Theater Coalition. See “Rivers Casino, Proctors team up for entertainment: ‘In no way, shape or form do I feel like we’re competitors” (Daily Gazette, by Brett Samuels, A1, March 8, 2017). The article highlights the lack of rivalry and the depth of cooperation between Proctors and Rivers Casino, and the importance of the Upstate Theatre Coalition for a Fair Game in nurturing this chummy state of affairs between entities that clearly are two of the most prominent members of the live-entertainment and leisure activity market in Schenectady and the Capital Region.

Ironically, Proctors CEO Philip Morris seems to be bragging about the very kinds of restrictions that we warned about back in 2014, when we said:

feelin’ blue

 “[T]he “Fair Game” Coalition (a/k/a The Concert Cartel) may end up achieving joint booking and venue-size limitations, and a revenue-sharing agreement with each of the 3 or 4 winning casinos.  That could mean the equivalent of territorial exclusivity, and joint booking and ticket pricing, for all/each of FairGame members, across all of the eastern portion of Upstate New York, through midState locations such as Utica and Syracuse, and apparently stretching to their members in the Western end of the State.”

On the one hand, Proctors CEO Philip Morris asserts in the Gazette article that Proctors and Rivers Casino are not competitors (a contention that would clearly by rejected by objective economists and antitrust experts); on the other hand, he makes it clear that the Fair Game theater coalition is protecting its members from casino competition across Upstate New York. According to the Gazette:

Without the Fair Game agreement, Morris said, he likely wouldn’t be feeling quite as optimistic about the relationship between the two entertainment entities moving forward.

slicingthepie “It set the stage for a collaboration that probably was critical for any next step,” Morris said. “I think if there was no Fair Game, we probably wouldn’t be doing the booking, and we might be in competitive mode.”

Casino applicants were encouraged under the Act authorizing new commercial casinos to enter into arrangements with local entertainment venues, demonstrating that the local casino “actively supports the mission and the operation of the impacted entertainment venues.” [§1320(3)(2)(D)]. The members of the Fair Game coalition were expected to help their members and the applicants gather necessary information that would facilitate such agreements. Coalition members were not given the freedom to eliminate competition among themselves, nor to prevent competition from all casinos within a large (seemingly unlimited) region. Consumers will surely lose out, with fewer choices and higher prices.

trust-buster needed

In 2014, I asked the New York Attorney General’s Antitrust Bureau to take a look at the operation of Fair Game. Although they replied to me that a preliminary investigation was being undertaken, no further communications were received from the AG suggesting that Fair Game raised antitrust concerns. In 2017, the casinos are in operation in Tyre (near Syracuse), Tioga Downs (near Binghamton), and Schenectady. The AG can now see in more detail and in action the restrictions adopted by Fair Game’s group of the largest Upstate entertainment venues and by each of the new casinos. I hope the Antitrust Bureau will therefore take a close look this time. Restrictions that unnecessarily limit competition between and among the theater-arena venues and the new casinos should be barred, allowing consumers the broadest array of entertainment and location options, and hopefully the best value for their entertainment dollars.

The creation of the Fair Game theater coalition, with its potential to limit competition from casinos and other major venues, transformed Proctors CEO from a strong opponent of having a casino in town, to a fervent casino supporter. Does any one believe this cooperation will result in more entertainment choices and lower ticket prices (beyond token gimmicks and give-aways) for the people of our community? Moreover, will lesser-known entertainment venues and options benefit, or just lose market share to the Big Guys in Town? Did our Legislature really mean to greatly reduce competition across the state between and among casinos and major entertainment venues, when it tried to reassure theaters like Proctors that they would not be run out of business if a casino came to town?

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10 of 17 casino applicants accept FairGame’s terms

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 The Albany Times Union reported this afternoon that: “The Upstate Theater Coalition for a Fairgame” said Tuesday that it has reached agreements with 10 of the 17 casino applicants seeking casino licenses in the three upstate regions eligible for commercial gambling halls.” (“Entertainment coalition nets majority of casino bidders“, Capitol Confidential Blog, by James M. Odato, July 1, 2014). The three Capital Region applicants that have partnered with “FairGame” are Schenectady’s Rush Street Gaming, the Hard Rock Café in Rensselaer, and the Howe Caverns Casino.

According to TU’s Capitol Confidential, Philip Morris, CEO of Proctors and chairman of Fairgame, said:

“While we were not able to come to accord with a number of other applicants, the agreements we have reached are significant. They clearly declare the size and scope of casino entertainment plans; they have joint booking agreements that will guarantee access for the casinos and for Fairgame members to touring performers; they support the Fairgame Fund for those same facilities; and they establish arts granting programs for smaller organizations in every region. Finally, should the plans the casinos propose be significantly changed, each applicant has agreed to mitigate those impacts with additional support.”

SlicingThePie By also reaching agreement with seven applicants in the two other Upstate regions that are eligible for casino licenses, the “FairGame” Coalition (a/k/a The Concert Cartel) may end up achieving joint booking and venue-size limitations, and a revenue-sharing agreement with each of the 3 or 4 winning casinos.  That could mean the equivalent of territorial exclusivity, and joint booking and ticket pricing, for all/each of FairGame members, across all of the eastern portion of Upstate New York, through midState locations such as Utica and Syracuse, and apparently stretching to their members in the Western end of the State.

Will the members of the FairGame Coalition be allowed to try to leverage the protection that the State meant to give local and regional entertainment venues from local casinos into a vast network of competition-killing promises among themselves and between each entertainment center and far-spread casinos covering several large regions, and perhaps all of Upstate New York?

NYg My “State Action” Analysis: To survive antitrust scrutiny, the FairGame group would need to justify such clearly anticompetitive joint action with a “state action” defense: the claim that their action is immunized from the antitrust laws because of the actions and policy of the State where the conduct takes place.  However, just last year, in its FTC v. Phoebe Putney Health Sys. Inc. (No. 11-1160, 2013) opinion, the U.S. Supreme Court reiterated that state-action immunity is a disfavored exception that will get careful examination before being accepted. The Phoebe Putney Court further stressed that to successfully invoke state-action immunity, state laws should be explicit in their intent to displace competition.  In addition, although the issue was not reached in Phoebe Putnam, prior cases have required that the state must “actively supervise” the conduct that would otherwise be deemed anticompetitive where — as here — the actors are private parties rather than governmental entities.

The FairGame Coalition may be able to show that New York State wanted to limit the competition that entertainment venues would normally face from a nearby casino, when it passed The Upstate New York Gaming Economic Development Act of 2013.  But they cannot show that the State wanted to greatly reduce competition among the major art and entertainment centers themselves, or even between the arts venues and casinos that would not normally be considered part of their local entertainment market.  The Act merely requires that the Siting Board evaluate whether the applicant has established:

“a fair and reasonable partnership with live entertainment venues that may be impacted by a gaming facility under which the gaming facility actively supports the mission and the operation of the impacted entertainment venues.” [§1320(3)(2)(D)]

As of COB today, I have not received any sort of reply from the State Attorney General’s office on the antitrust Complaint that I submitted last Friday. See our June 28th posting “arts venues want more than a fair game“.

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follow-up (March 8, 2017): An article in today’s Schenectady Daily Gazette, “Rivers Casino, Proctors team up for entertainment: ‘In no way, shape or form do I feel like we’re competitors” (by Brett Samuels, A1, March 8, 2017), suggests that my fears expressed above and in a prior post were warranted. See “a wicked concert cartel?” (March 8, 2017).