Two material connections that look identical

Two pieces of writing about the same sportsbook. Both carry a disclosure. Both disclosures are true. They describe arrangements that pull in different directions, and nothing on the page tells the reader which one they are looking at.

The sponsorship

A fixed fee was paid for the placement. The money arrived before the reader did, and it does not change if a thousand people read the piece and none of them sign up. The incentive created is an incentive to be published — to produce something the sponsor approves of, in a place the sponsor wants to be.

The commission

Nothing was paid up front. Payment happens when a reader follows a tracked link and does something: registers, deposits, places a first bet. The incentive created is an incentive to produce an action, reader by reader. Everything about the writing that increases the conversion rate increases the payment — the urgency of the recommendation, the warmth of the comparison, which option appears first, which caveat gets a sentence and which gets a clause.

Why the difference is the disclosure

A reader deciding how much weight to give a recommendation needs to know which bias to discount for. Discounting for “they were paid to publish this” is a different mental operation from discounting for “they are paid if I act on this”. A single label covering both deprives them of the operation they actually need.

The FTC's revised Guides require that a material connection be disclosed clearly and conspicuously; the revision's emphasis on the adequacy of a disclosure is where this bites. A disclosure vague enough to be true of either arrangement is a candidate for inadequate, because it does not convey the connection that exists. The revision also set out liability for intermediaries — the networks and agencies between the advertiser and the publisher — which is the layer where affiliate arrangements actually live, and where a programme with no monitoring becomes someone's problem.

Our own position, stated

This site runs no sportsbook affiliate programme and takes no commission on a sign-up. It carries no outbound commercial links of that kind at all — a reader can verify that by looking at where our links go: to statutes, regulations, filings, league rulebooks and commission reports. The donor-era material we preserved discusses tip jars and referrals as a practice, and we have kept that discussion intact rather than quietly editing it to match our current arrangements; it is in tip jars, referrals and editorial independence.

What an adequate disclosure says

1. Which arrangement. Paid to publish, or paid when you act. Those are the two sentences; pick the true one.
2. Who pays. Named, not “our partners”.
3. Where the reader will see it. Before the recommendation, in the same medium as the recommendation. In a video with sound, said out loud.
4. What it does not cover. If one link in a list is commercial and four are not, say which.

The federal rules those four lines come from are in what the 2023 guides changed; the industry's own content restrictions on top of them are in a voluntary code and what voluntary means. Donor material on this desk: disclosure in podcasts. Desk index: Standards; full index: the archive.

What we read

Every figure above comes from one of these documents. If a number is not in them, it is not in this piece.

• Arnold & Porter: the FTC's revised Endorsement Guides
• Manatt: an in-depth look at the FTC's updates to the Endorsement Guides
• AvantLink: FTC guidelines for affiliate marketing