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Daily fantasy sports and the law in the USA

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A Correction to this article was published on 01 June 2022

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Abstract

This chapter examines legal, regulatory, and social issues surrounding the phenomenon of the daily fantasy sports (DFS) industry in the USA. Traditional fantasy sports contests largely involved groups of family or friends creating their own respective “fantasy” teams of real professional athletes, whose actual games results over the course of an entire season determined the success of one’s fantasy team. Fantasy sports contests were not considered gambling on sports, and federal legislation exempts “fantasy sports” from prohibitions against online gambling. As the name implied, DFS is a different product, offering users who pay the DFS operating company to select their team roster on a daily basis, competitions can occur over a day or a week depending on the contest, and among thousands of users, few of whom are consistent winners in the contests. The DFS commercials and advertisements are again blaring the airwaves. Major DFS operators are expanding their product lines and are now fully immersed in online, mobile, and casino sports gambling in states where legal. The DFS and sports gaming market is booming; the technology, analytics, user sophistication, financial stakes, and the distinction between DFS and gambling are increasingly blurred. This chapter considers the legal, regulatory, and social issues arising from the expanding DFS and sport gaming business.

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Notes

  1. Todd Easton & Sara Newell, Are Daily Fantasy Sports Gambling?, 5 J. Sport Analytics 33, 35 2019 (noting 2017 study finding that “[f]antasy sports are popular with about 60 million participants”), https://content.iospress.com/articles/journal-of-sports-analytics/jsa240#ref027. In 2015, nearly all the players were male. See New DFS Market Report- Nearly 100% of Participants are Male, The Wire (July 14, 2015), https://dailyfantasysports.codes/wire/new-dfs-market-report-nearly-100-of-participants-male/. A 2019 study reports 81% male and 19% female fantasy sports players. Fantasy Sports & Gaming Association (FSGA), Industry demographics, https://thefsga.org/industry-demographics/, last visited Dec. 18, 2020.

  2. Fantasy Sport, Wikipedia (last visited Jan. 4, 2021), https://en.wikipedia.org/wiki/Fantasy_sport.

  3. See Martin B. Haugh & Raghav Singal, How to Play Fantasy Sports Strategically (and Win) (discussing sharks versus minnows) (2019), https://ssrn.com/abstract=3393127.

  4. Easton & Newell, supra note 1 at 36.

  5. Scott Nover, The Rise of Daily Fantasy Sports Betting Has Created an Economy of Its Own, The Wire (Jan. 29, 2020), https://www.vox.com/2020/1/29/21112491/daily-fantasy-sports-betting-dfs-merch-analysis-weatherman (explaining that fantasy sports “[i]s a type of game, often played using the Internet, where participants assemble imaginary or virtual teams of real players of a professional sport. These teams compete based on the statistical performance of those players in actual games. This performance is converted into points that are compiled and totaled according to a roster selected by each fantasy team's manager.”).

  6. Daniels v. Fanduel, Inc., 884 F.3d 672 (7th Cir. 2018). Other DFS companies have merged onto the scene, such as Yahoo DFS, Monkey Knife Fight, FantasyStat, and Fantasy Draft. See Best Daily Fantasy Sports Websites: 2020 Reviews, RotoGrinders (last visited Jan. 4, 2021), https://rotogrinders.com/reviews.

  7. Drape and Belson (2015), https://www.nytimes.com/2015/09/17/sports/football/draftkings-fanduel-fantasy-sports-games.html?action=click&module=RelatedCoverage&pgtype=Article&region=Footer

  8. 36 U.S.C. § 5362 (“The term ‘bet or wager’ . . . does not include . . . participation in any fantasy or simulation sports game . . . ”). Under UIGEA, it is a criminal offense for those “engaged in the business of betting or wagering” to “knowingly accept” any funds “in connection with the participation of another person in unlawful Internet gambling.” 31 U.S.C. § 5363; see 31 U.S.C. § 5366 (listing penalties); “Unlawful Internet gambling” is the knowing transmission of a bet or wager, by means of the Internet, where the bet or wager is otherwise illegal under the laws of the place where the bet or wager is “initiated, received, or otherwise made.” 31 U.S.C. § 5362(10)(A) Id.

  9. See e.g., Easton & Newell, supra note 1 at 36 (noting that Nevada first classified DFS as gambling and that 41 states have considered legislation as of 2017).

  10. Joe Drape & Ken Belson, An Ad Blitz for Fantasy Sports, but Some See Plain Old Gambling, The N.Y. Times (2015), https://www.nytimes.com/2015/10/06/sports/fanduel-draftkings-fantasy-employees-bet-rivals.html

  11. Alexandra Berzon, Fantasy-Sports Sites Curtail Ad Spending, WALL ST. J. (Aug. 1, 2016), https://www.wsj.com/articles/fantasy-sports-rivals-slice-ad-spending-1470052800

  12. Murphy v. NCAA, 138 S.Ct. 1461 (2018).

  13. SportsLine, CBS Interactive, Vegas Experts Picks, Fantasy Tools, Computer Sims, and More!, https://www.sportsline.com/join/. See also Reviews of Sportsline service show disgruntled customers and a 90% “Bad” rating. See Trustpilot, Sportsline, https://www.trustpilot.com/review/www.sportsline.com (last visited Jan. 22, 2021).

  14. Fantasy Sports & Gaming Association (FSGA), Industry Demographics (reporting nearly 60 million fantasy sports players in the US & Canada in 2017), https://thefsga.org/industry-demographics/

    (reporting that “[i]n 2018, our research found that 79% of fantasy players said there’s at least a good possibility they’d bet on sports if and when a bill is passed to legalize it in their state.”).

  15. See Haugh & Singal, supra note 3.

  16. Dynamologic Solutions, What is Fantasy Sports, (April 18, 2019), https://www.dynamologic.com/what-is-fantasy-sports/

  17. Id. (stating that “DFS modified the traditional fantasy sports model to offer more flexible and fast paced competitions . . . participants are given a salary cap with which to select their fantasy team. Multiple participants can select the same professional players so long as they do not exceed the salary cap. . . [participants] may select from a variety of competitions including head to head competitions, cash games, guaranteed prize pools, and 50/50 competitions . . . . Each of these contests is structured as pay to play, with the participant submitting an entry fee for each contest, and the host Web site taking a commission from fees collected.”).

  18. Nover, supra note 5.

  19. See FGSA, supra note 14.

  20. Easton & Newell, supra note 1 at 36 (noting also that DFS participants “spend over $250 million annually to purchase additional information and decision-making tools”).

  21. Id. See e.g., NFL DFS Lineup Optimizer, SportsLine (last visited Jan. 4, 2021), https://www.sportsline.com/nfl/daily-fantasy/optimizer/?ttag=SL20_lk_nl_cbssports_hqpmnewsletter&ET_CID=143861&ET_RID=43390255

  22. Nover, supra note 5.

  23. Id.

  24. Id.

  25. Id.

  26. 36 U.S.C. § 5362.

  27. Id.

  28. Id.

  29. FanDuel, (last visited Jan 4, 2021), https://www.fanduel.com/

  30. Who We Are, DraftKings (last visited Jan 4, 2021), https://www.draftkings.com/about/who-we-are/

  31. Dustin Gouker, Draftkings Does Deal with MLB to Become an ‘Authorized’ Gaming Operator, Legal Sports Rep. (July 25, 2019), https://www.legalsportsreport.com/34611/draftkings-mlb-sports-betting-deal/.

  32. Id.

  33. Id.

  34. NHL.Com, NHL announces partnership with DraftKings, NHL (Nov. 10, 2014), https://www.nhl.com/news/nhl-announces-partnership-with-draftkings/c-738520. The partnership would provide NHL fans with access to free DFS games for chances to win prizes and trips to NHL events. Id.

  35. Id.

  36. Kraft reportedly invested in 2015 but sold many of his shares in 2020. See Brendan Coffey, Robert Kraft, Billionaire Meckenzie Selling Millions of Draftkings Stock, Sportico (Oct. 5, 2020),

    https://www.sportico.com/business/finance/2020/robert-kraft-billionaire-meckenzie-selling-draftkings-1234614267/

  37. Sandomir (2015) https://www.nytimes.com/2015/07/27/sports/fantasy-sports-website-draftkings-adds-dollar300-million-in-new-investment.html

  38. Dustin Gouker, How Much Money Did Draftkings, Fanduel and the DFS Industry Make In the Past Year? Now We Know Almost Exactly, Legal Sports Rep. (Oct. 20, 2017), https://www.legalsportsreport.com/16152/draftkings-fanduel-dfs-revenue/. MLB later moved to give up its equity when DraftKings began moving into the sports betting market. Id.

  39. Associated Press, Draftkings and Fanduel Call Off Merger, The N.Y. Times (July 23, 2017)

    (noting FTC objection, “[t]he companies announced their merger last November after an advertising war that brought regulatory scrutiny and legal challenges down on the industry, which some consider as essentially selling illegal online sports betting.”), https://www.nytimes.com/2017/07/13/sports/draftkings-and-fanduel-call-off-merger.html

  40. Dustin Gouker, Draftkings Commercials are Back, But Don’t Expect to be Overturn by Them, legal sports report (Aug. 17, 2017), https://www.legalsportsreport.com/15053/draftkings-commercials-2017/

  41. Murphy v. NCAA, 128 S.Ct. at 1481.

  42. Grossman (2020), https://www.wsj.com/articles/draftkings-users-surged-with-return-of-pro-sports-betting-11605283899.

    Id.

  43. NFL and FanDuel expand partnership to include sports betting and new fan experiences, NBA.com (Dec. 18, 2018), https://www.nba.com/news/nba-fan-duel-expand-partnership-official-release.

  44. Id.

  45. Memphis Grizzlies, Memphis Grizzlies and FanDuel Group announce strategic sports betting and daily fantasy sports partnership, NBA.com (Nov. 2, 2020), https://www.nba.com/grizzlies/news/memphis-grizzlies-and-fanduel-group-announce-strategic-sports-betting-and-daily-fantasy-sports-partnership-201102

  46. Id.

  47. Staff Writer, NBA Moving To Legalize Gambling and Partnering With Leading Companies In The USA, Lakersnation.com (Apr. 5, 2020), lakersnation.com/nba-moving-to-legalize-gambling-and-partnering-with-leading-companies-in-the-usa/2020/04/05/#:~:text=The%20Australian-founded%20PointsBet%20is,official%20partnership%20with%20the%20NBA.

  48. PointsBet, PointsBet and NBA Announce Multiyear Sports Betting Partnership Including the NBA’s First Win Probability Metric, CISION PR Newswire(Feb. 12, 2020), https://www.prnewswire.com/news-releases/pointsbet-and-nba-announce-multiyear-sports-betting-partnership-including-the-nbas-first-win-probability-metric-301003917.html.

  49. Id.

  50. Purdum and Rovell (2018) https://www.espn.com/chalk/story/_/id/24245142/nba-first-league-betting-sponsor-deal-mgm.

  51. Ryan Boysen, NBA Inks Sports Betting Partnership With PointsBet, Law360 (Feb. 12, 2020), https://www.law360.com/articles/1243540/nba-inks-sports-betting-partnership-with-pointsbet.

  52. Tim Bontemps, NBA reaches deal to make MGM Resorts its first official gaming partner, The Washington Post (July 31, 2018), https://www.washingtonpost.com/news/sports/wp/2018/07/31/nba-reaches-deal-to-make-mgm-resorts-its-first-official-gaming-partner/.

  53. Eric Ramsey, NFL Partnership with Draftkings, But Not for Sports Betting, Legal Sports Rep. (Sept. 26, 2019), https://www.legalsportsreport.com/35577/draftkings-nfl-dfs-partnership/.

  54. Id.

  55. Id.

  56. Id.

  57. Id.

  58. Id.

  59. DraftKings Inc., DraftKings Expands Exclusive Partnership with Major League Baseball, GlobeNewswire (Aug. 6, 2020), https://www.globenewswire.com/news-release/2020/08/06/2074556/0/en/DraftKings-Expands-Exclusive-Partnership-with-Major-League-Baseball.html#:~:text=DraftKings%20will%20also%20have%20the,activities%20and%20the%20MLB%20Postseason

  60. Id.

  61. Id

  62. FanDuel was purchased by public company Flutter. Luis Sanchez, CFA, This Acquisition by FanDuel’s Parent Company Is Creating an Online Gambling Monster, The Motley Fool (Jun 16, 2020), https://www.fool.com/investing/2020/06/16/acquisition-fanduel-parent-online-gambling-flutter.aspx.

  63. Id.

  64. Id.

  65. Sam Shefin, Ripple Effects of the DraftKings and Caesar’s Entertainment Corporation Partnership, (Mar. 25, 2021), https://www.lineups.com/betting/ripple-effect-of-the-draftkings-caesars-entertainment-corporation-partnership/

  66. Bill Gellman, Fanduel Sportsbook and Betfair NJ Online Casino Now Have a Shared Wallet, (April 21, 2019), https://www.njgamblingsites.com/17810/fanduel-sportsbook-betfair-shared-wallet/

  67. Melnick v. Betfair Interactive US, LLC, Case 1:21-cv-01178 (filed 3/21/2021, N.D. Ill.), https://www.docketalarm.com/cases/Illinois_Northern_District_Court/1--21-cv-01178/Melnick_v._Betfair_Interactive_US_LLC/1/

  68. Pymnts, Sports Gambling Sites Run Into Technical Issues During Super Bowl (Feb. 8, 2021), https://www.pymnts.com/news/payment-methods/2021/sports-gambling-sites-run-into-technical-issues-during-super-bowl/

  69. James Cutchin, Diamond Eagle Bets on DraftKings, SBTech, L.A. Bus. J. (Jan. 17, 2020), https://labusinessjournal.com/news/2020/jan/17/diamond-eagle-merger-draftkings-sbtech/.

  70. Brad Allen, Analysis: Is Draftkings Really Work $6 Billion After SBTech Merger, NASDAQ Listing?, Legal Sports Rep. (May 4, 2020), https://www.legalsportsreport.com/40381/draftkings-worth-6-billion-nasdaq/. See also Connor Smith, What the Latest Deal in Sports Betting Says About DraftKings Stock, BARRON’s (Dec. 3, 2020), https://www.barrons.com/articles/what-the-latest-deal-in-sports-betting-says-about-draftkings-stock-51607017945.

  71. Allen, B.,  supra note 70.

  72. Barstool Sports, a digital media company that produces sports content, entered into an agreement with Penn National Gaming, owner and operator of various casinos and racing facilities. Penn would acquire 36% interest in Barstool Sports in exchange for $163 million ($135 million in cash and $28 million in non-voting convertible proffered stock). As a result, Penn National would be Barstool Sports exclusive gaming partner and have the exclusive right to use the Barstool brand. After three years, Penn National will increase its ownership to 50%, with an incremental investment of $62 million. Penn National Plans on establishing full control and ownership of Barstool Sports. See

    Penn National Gaming Completes Acquisition of 36% Interest in Barstool Sports for $163 Million, BusinessWire (Feb. 20, 2020), https://www.businesswire.com/news/home/20200220005183/en/Penn-National-Gaming-Completes-Acquisition-of-36-Interest-in-Barstool-Sports-for-163-Million.

  73. In October 2020, Monumental Sports & Entertainment, the owner of the Capitals, Wizards, and Capital One Arena, announced its arena would be the first in the US with a sportsbook. In a deal with sports betting operator, William Hill, Hill will operate a multi-floor sportsbook in Capital One Arena that will be open to the public year-round and will include a mobile app for betting inside the arenas as well as several ticket windows and kiosks for placing bets. Kevin Reichard, Monumental Sports doubles down on Capital One Arena gambling, Arena Digest (Aug. 9, 2020), https://arenadigest.com/2020/08/09/monumental-sports-doubles-down-on-capital-one-arena-gambling/.

  74. Perlberg (2015) https://www.wsj.com/articles/BL-269B-4554. “DraftKings spent $100 million on advertising in the first half of 2020. It is estimated that FanDuel will spend $185 million on advertising in the second half of 2020.” Chris Katje, Sports Betting Apps Have Low Awareness Despite Large Advertising Spend: Survey, Bengzinga (Oct. 6, 2020), https://www.benzinga.com/analyst-ratings/analyst-color/20/10/17803100/sports-betting-apps-have-low-awareness-despite-large-advertising-spend-survey.

  75. Tom Bassam, Study: Gambling Industry’s US Ad Spend Up to 82% YoY, (Feb. 23, 2021), https://www.sportspromedia.com/news/gambling-sports-betting-advertising-spend-us-2020-nfl-draftkings

  76. Shankar Bahndlakar, Fantasy Sport Market Expected to Reach $48.6 Billion by 2027, User stats and projections: https://www.alliedmarketresearch.com/fantasy-sports-market-A06468. See also Valuates Reports, Fantasy Sports Market Size is Expected to Reach USD 48.6 Billion by 2017, CISION PR Newswire (Oct. 12, 2020), https://www.prnewswire.com/news-releases/fantasy-sports-market-size-is-expected-to-reach-usd-48-6-billion-by-2027---valuates-reports-301150193.html. See also Nover, supra note 5.

  77. Quora, What Does The Fantasy Sports Industry Look Like In the U.S. Right Now?, Forbes (Nov. 6, 2019, 1:14PM), https://www.forbes.com/sites/quora/2019/11/06/what-does-the-fantasy-sports-industry-look-like-in-the-us-right-now/?sh=77d021627796.

  78. Brad Allen, Draftkings Posts Sizable Net Loss in 2019 Despite Major Revenue Growth, Legal Sports Rep. (last updated Mar. 13, 2020), https://www.legalsportsreport.com/39020/draftkings-2019-revenue-report/.

  79. Id.

  80. Id. (quoting Industry Demographics, FSGA (last visited Nov. 14, 2020). See also FSGA, supra note 14, https://thefsga.org/industry-demographics/).

  81. Sherman (2019) https://www.cnbc.com/2019/04/27/fanduel-draftkings-race-to-win-150-billion-sports-betting-market.html; Andrew Ford, Legalized Sports Gambling: Beneficial or Dangerous?, The Observer (Feb. 22, 2019).

  82. Holden and Edelman (2020) A Short Treatise on Sports Gambling and the Law: How America Regulates Its Most Lucrative Vice, 2020 Wis. L. Rev. (forthcoming Dec. 2020) (noting that internationally, sports gambling dates back centuries, including at the Ancient Olympic Games).

  83. Id.

  84. Aaron Gray, The Vegas Era: Major Sports Betting Legislation in the USA (Part II), SBD (Feb. 24, 2020), https://www.sportsbettingdime.com/guides/legal/sports-betting-history-part-ii/

  85. Id.

  86. Id.; Anthony Curtis, Las Vegas Advisor (last visited Dec. 30, 2020), https://www.lasvegasadvisor.com/question/sports-betting-history/. An example of a “turf club” is the “Derby and Saratoga clubs owned by Jackie Gaughan and the Hollywood Horse and Sports Book, owned by Jimmy “the Greek” Snyder, some of which were highly lucrative affairs - - Jimmy the Greek was allegedly making $2 million a week in the mid-‘50s from his Vegas Turk and Sports Club.”

  87. Gray, supra note 84. “Part of the same legislative package as the Wire Act, the Travel Act criminalized the use of federal mail to transport any materials relating to illegitimate sports betting. This was part of the government’s strategy to reduce the means through which organized crime could communicate across the US.” Id.

  88. 18 U.S.C. 1084.

  89. What is the Federal Wire Act?, Legal Sports Betting (Oct. 28, 2020) (noting that the Act’s purpose was to suppress organized crime), https://www.legalsportsbetting.com/what-is-the-wire-act/.

  90. Gray, supra note 84. In 1984, Congress further reduced the tax on sportsbook from 2% to 0.5%. Id.

  91. Id. Rosenthal was the subject of Martin Scorsese’s 1995 film Casino, which detailed Rosenthal’s life of gambling and sports betting. Id.

  92. Id.

  93. Id.

  94. Id.

  95. Holden & Edelman, supra note 82 at note 68 (noting that Congress lowered the federal excise tax on sports wagers to ten percent in 1970. As sports gambling became more prevalent and morally problematic, lawmakers enacted PAPSA in 1992.). Id.

  96. 36 U.S.C. § 3702 (PAPSA) (‘It shall be unlawful for--‘(1) a governmental entity to sponsor, operate, advertise, promote, license, or authorize by law or compact . . . . ).

  97. Holden & Edelman, supra note 82.

  98. 31 U.S.C. § 5362(1)(2)(xi) (UIEGA prohibitions on unlawful internet gambling, excluding fantasy sports from definition of “bet or wager”).

  99. See discussion, supra Sec. 3.2.

  100. Silver A (2014) A 1999 Congressional report concluded that the illegal sports gambling market was worth between $80 and $380 billion annually. Holden & Edelman, supra note 75.

  101. Murphy v. NCAA, 138 S.Ct. at 1476 (holding that “Congress may not simply ‘commander the legislative process of the States by directly compelling them to enact and enforce a federal regulatory program.”).

  102. Ross Ramsey, In a Recession, Turning to Sin Might Save the Texas Budget,Texas Tribune (Nov. 18, 2020). See also Sam McQuillan, ‘Sin’ Taxes on Sports Bets, Legal Pot, Gain Steam as Virus Rages, BloombergLaw (Jan. 19, 2021) (noting that legal sports betting has generated $129 million in 15 states during a six month period since July 2020 and that New Jersey has become the biggest sports book market “on pace to collect over $1 billion worth of bets in a single month . . . “), https://news.bloomberglaw.com/daily-tax-report/sin-taxes-on-sports-bets-legal-pot-gain-steam-as-virus-rages

  103. Legal Sport Report, Legislative Tracker: Sports Betting (last visited Jan. 4, 2021), https://www.legalsportsreport.com/sportsbetting-bill-tracker/ Erik Gibbs, How it looks for sports gambling expansion in the US, CalvinAyre.com (Nov. 4, 2020), https://calvinayre.com/2020/11/04/business/how-it-looks-for-sports-gambling-expansion-in-the-us/.

  104. Id.

  105. Id. Along with Maryland and Louisiana, South Dakota and Nebraska also passed a measure to legalize sports gambling. Analysis of different state laws and impacts on DFS. (https://www.dailyfantasycafe.com/academy/undergraduate/is-daily-fantasy-sports-legal).

  106. Staff, Election 2020:A look at sports figures on ballots and what states could add sports betting, USA Today (Nov. 3, 2020), https://www.usatoday.com/story/sports/ncaaf/2020/11/03/election-day-sports-gambling-tommy-tuberville-ex-nfler-ballots/6132042002/ (stating that as of November 2020, sports betting is legal in some form in Arkansas, Colorado, Indiana, Illinois, Iowa, Michigan, Montana, New Hampshire, New York, North Carolina, Oregon, Tennessee, and Washington have joined the likes of Nevada, New Jersey, Delaware, Pennsylvania, Mississippi, West Virginia, Rhode Island, Virginia, and the District of Columbia. Maryland, Georgia, Massachusetts, Missouri, Kansas and South Dakota have all made progress introducing bills to allow for sports betting in some form in their states.). For a complete list of all proposed bills, see Legislative Tracker: Sports Betting, Legal Sports Rep., http://www.legalsportsreport.com/dfs-bill-tracker/. (last visited Dec. 18, 2020)

  107. David Purdum & Ryan Rodenberg, What you need to know about the new federal sports betting bill, ESPN (Dec. 20, 2019), https://www.espn.com/chalk/story/_/id/25581529/what-need-know-sports-wagering-market-integrity-act-swmia-2018; S.3793 – 115th Congress: Sports Wagering Market Integrity Act of 2018. www.GovTrack.us. 2018. January 5, 2021.

  108. Scott Nover, supra note 5 (reporting that “[c]urrently, some form of DFS is legal and operational in 43 states and the District of Columbia. Seven states — Arizona, Hawaii, Idaho, Montana, Nevada, and Washington — still consider DFS illegal sports gambling”). See also Lineups, Is Draftkings Legal?, https://www.lineups.com/betting/is-draftkings-legal/

  109. 31 U.S.C. §§ 5361-5367.

  110. Edelman, supra note 82.

  111. Nover, supra note 5.

  112. Nover, supra note 5 (noting that DraftKings and FanDuel both operate sportsbooks separate from their fantasy offerings).

  113. Tony Nitti, In Recent Ruling, IRS Again Concludes That Daily Fantasy Sports Are Gambling, FORBES (Oct. 19, 2020), https://www.forbes.com/sites/anthonynitti/2020/10/19/in-recent-ruling-irs-again-concludes-that-daily-fantasy-sports-are-gambling/?sh=1d5c2753437f. IRS treats entry fees as “wagering” gambling expenses deductible from winnings. Id.

  114. Daily Fantasy Sports vs. Traditional Betting, Gambling Sites, (last visited Jan. 4, 2021), https://www.gamblingsites.org/daily-fantasy-sports/daily-fantasy-vs-traditional-betting/

  115. Id.

  116. Homer (2016) “The assumption was that while unconstrained Internet gambling could change the nature of America’s savings and investment patterns, fantasy sports would be a ‘de minimus’ footnote. No one ever conceived of it becoming a large-scale activity or that it could transition into one-day contest.”)

  117. DraftKings, Where Can You Play Draftkings?, DraftKings Daily Fantasy (last visited Jan. 4, 2021), https://www.draftkings.com/where-is-draftkings-legal (“DraftKings is a global sports technology and entertainment company whose Daily Fantasy Sports contests are governed by both federal and state law. Federal law specifically exempts fantasy sports contests from the prohibitions of the Unlawful Internet Gambling Enforcement Act, or UIGEA. At the state level, legislation and regulation vary state-to-state. In recent years, many state legislatures have passed laws confirming and clarifying the legality of Daily Fantasy Sports contests.”).

  118. Id.

  119. Lars Peterson, The Winning Lineup: Framework for Federal Regulation of Daily Fantasy Sports, 80 U. PITT. L. REV. 729 (2019).

  120. Jake Lestock, Tackling Daily Fantasy Sports in the States, NCSL (Jan. 2018), https://www.ncsl.org/research/civil-and-criminal-justice/tackling-daily-fantasy-sports-in-the-states.aspx

  121. Id.

  122. Id.

  123. Id.

  124. Edelman (2017) https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=11245&context=ilj

  125. Lestock, supra note 120.

  126. Id.

  127. Id. (stating that “[t]he UIGEA exemption for the funding of traditional fantasy sports allowed payment processors to continue doing business with traditional fantasy sports providers, even though payment processors could no longer safely accept funds from online sportsbooks or poker sites.”).

  128. Anthony Dreyer and Andrew Patrick, Daily Fantasy Sports Decisions Risk Clouding Legal Landscape, N.Y. L. J. (Aug. 4, 2020) (discussing different outcomes in New York and Illinois on determination of DFS as gambling using the ‘material factor’ vs. ‘predominate factor’ test), https://www.law.com/newyorklawjournal/2020/08/04/daily-fantasy-sports-decisions-risk-clouding-legal-landscape/?slreturn=20200930152508, See also Gregory A. Marino, Better to be Good than Lucky, Daily Fantay Sports Users Win Big in Illinois Courts, Foley (March 8, 2020), https://www.foley.com/en/insights/publications/2020/05/daily-fantasy-users-big-win-supreme-court-illinois. See also Town of Mount Pleasant v. Chimento, 737 S.E.2d 830 (S.C. 2021) (We hold that one “games” within the meaning of [state criminal gambling statute] when money is wagered on Texas Hold’em, even though it is a game in which skill predominates.).

  129. Nitti, supra note 113.

  130. Schneiderman v. Fanduel, 2016 NY Slip. Op. 90361(U) (NYAD 1 Dept. 2016) (holding that DFS is a game of skill thus not considered to be sports gambling under PAPSA).

  131. Nitti, supra note 113.

  132. Id.

  133. Id.

  134. Nover, supra note 5.

  135. Id. (“[The] [S]tudy spent $85 to enter 35 DraftKings MLB Double Up contests with randomly selected teams. All 35 entries lost and the odds of this occurring, if these are contests of chance, is 1 in 312,681,518. These odds are less likely than winning the Powerball lottery with a single ticket.”). Id.

  136. Id.

  137. Id.

  138. Id.

  139. Id.

  140. Id.

  141. Id. See also Zachary Zaggar, Daily Fantasy Ruling Could Spur Change to NY Gambling Ban, Law360 (Feb. 11, 2020), https://www.law360.com/articles/1242658/daily-fantasy-ruling-could-spur-change-to-ny-gambling-ban

  142. Michael Levenson, Fantasy Sports Contests Are Illegal Gambling, New York Appeals Court Rules, The N.Y. Times (Feb. 6, 2020), https://www.nytimes.com/2020/02/06/us/28-Fan-duel-draft-kings-law.html.

  143. White v. Cuomo, 118 N.Y.S.3d 775 (4th Dept. Feb. 6, 2020) (holding that DFS constitute gambling under state penal code, striking 2016 NY statute).

  144. Id.

  145. Scott Beckmen & Hailey Perkins, A Victory for DFS and the “Predominate Factor Test,” JDSUPRA (Aug. 17, 2020), https://www.jdsupra.com/legalnews/a-victory-for-dfs-and-the-predominate-65084/.

  146. 2020 IL 124472 (Ill. 2020). See also Anthony Dreyer and Andrew Patrick, Daily Fantasy Sports Decisions Risk Clouding Legal Landscape, New York L. J. (Aug. 4, 2020) (discussing different outcomes in New York and Illinois on determination of DFS as gambling using the ‘material factor’ vs. ‘predominate factor’ test), https://www.law.com/newyorklawjournal/2020/08/04/daily-fantasy-sports-decisions-risk-clouding-legal-landscape/?slreturn=20200930152508

  147. Beckmen & Perkins, supra note 145.

  148. Id.

  149. Id.

  150. Id.

  151. Id.

  152. Id.

  153. Id.

  154. Id.

  155. In re Allen, 377 P.2d 280 (Cal. 1962) (“It is the character of the game rather than a particular player’s skill or lack of it that determines whether the game is one of chance or skill. The test is not whether the game contains an element of chance or an element of skill but which of them is the dominating factor in determining the result of the game.”). Gregory A. Marino, Better to be Good than Lucky, Daily Fantay Sports Users Win Big in Illinois Courts, Foley (March 8, 2020), https://www.foley.com/en/insights/publications/2020/05/daily-fantasy-users-big-win-supreme-court-illinois. See also Town of Mount Pleasant v. Chimento, 737 S.E.2d 830 (S.C. 2021) (We hold that one “games” within the meaning of [state criminal gambling statute] when money is wagered on Texas Hold'em, even though it is a game in which skill predominates.

  156. Morrow v. State, 511 P.2d 127 (Alaska 1973) (adopting the “predominant factor” test in analyzing whether a football pool was lottery, measuring whether skill predominates over chance).

  157. Id.

  158. United States v. Dicristina, 886 F. Supp. 2d 164 (E.D.N.Y. 2012). But see Joker Club, LLC v. Hardin, 643 S.E.2d 626 (N.C. App. 2007).

  159. Tenn. Code § 4-51-316.

  160. Wayne Parry, Leagues finally cash in on sports betting by selling data, Associated Press News (July 7, 2020) https://apnews.com/article/2fc27b7c558ceddd8669fb03acc15e3d (last accessed May, 27th 2021)

  161. Id.

  162. United States v. Dicristina, supra note 158.

  163. Meyer et al. (2012)

  164. van Loon et al.(2015). PMID: 25729862; PMCID: PMC4346402. (when the experiment is expanded to games of 1500 hands skilled players consistently end up as the top earners.)

  165. Hannum and Cabot (2009) https://digitalscholarship.unlv.edu/grrj/vol13/iss1/1 (last accessed May, 27, 2021)

  166. Perlman, Matthew, NY AG Seeks Injunctions Against FanDuel, DraftKings, LAW360 (Nov. 20, 2015),http://www.law360.com/articles/728013 (last accessed May 27th 2021)

  167. Harwell (2015) https://www.washingtonpost.com/news/the-switch/wp/2015/10/12/all-the-reasons-you-probably-wont-win-money-playing-daily-fantasy-sports/ (last accessed may 27th 2021)

  168. Ryan Rodenburg, United States of sports betting: An updated map of where every state stands, ESPN (April 7, 2021)

  169. Burke et al. (2016)

  170. Dustin Gouker, Fanduel Leaving Texas in May; Draftkings to Fight AG Paxton in Court, Legal Sports Report (2016), https://www.legalsportsreport.com/8825/fanduel-leaving-texas/https://www.legalsportsreport.com/8825/fanduel-leaving-texas/

  171. Beckmen & Perkins, supra note 145.

  172. Nitti, supra note 113.

  173. Id.

  174. Id.

  175. Id. (“[A] raffle ticket is a wager because it is the disposal by chance of a single prize among purchasers of single chances.” Also, the IRS “examined a puzzle contest in which contestants submitted solutions with a fee per submission to play and concluded that the puzzle game was not a wagering pool or lottery under the excise tax provisions of § 4421 because the outcome relied entirely on the contestant's skill in completing the puzzle. The Service later distinguished this type of contest as a game of skill from poker tournaments which are considered wagering.”).

  176. Id.

  177. Id.

  178. Id.

  179. Id.

  180. Craig Klinski, Daily Fantasy Sports Could Be Impacted By DOJ Wire Act Opinion, BestBetUSA (Jan. 24, 2019), https://bestbetusa.com/sports/daily-fantasy-sports-wire-act/ (contending that 2018 DOJ opinion means that the Wire Act applies to many forms of interstate gaming, including daily fantasy sports. Accordingly, DFS “[m]ay be facing its most serious threat of its decade-long existence.”).

  181. State Lotteries Opinion, Whether Proposals By Illinois and New York to Use the Internet and Out-of-State Transaction Processors to Sell Lottery Tickets to In-State Adults Violate the Wire Act, Justice.gov (Sept. 20, 2011), https://www.justice.gov/sites/default/files/olc/opinions/2011/09/31/state-lotteries-opinion.pdf; 18 U.S.C. § 1084(a).

  182. Dustin Grouker, Department Of Justice Reverses Wire Act Opinion That Said Law Is Limited To Sports Betting, Online Poker Rep. (Jan. 14, 2019), https://www.onlinepokerreport.com/34391/doj-new-wire-act-opinion/

  183. In 2019, the DOJ issued a new opinion, reversing the 2011 opinion, and announcing that the Wire Act applies to all forms of gambling that cross state lines, including online gambling and state lotteries. Id.

  184. New Hampshire Lottery Commission et al. v. Rosen et al., 986 F.3d 38, 62 (1st Cir. Jan. 20, 2021).

  185. Id.

  186. Edelman, supra note 124.

  187. 18 U.S.C. § 1084(a) (“placing bets or wages on [a] sporting event of contest.”),

  188. Klinski, supra note 180. See also What is the Federal Wire Act?, supra note 77.

  189. Andrew K. Gonsalves, IP Frontiers: The rise of daily fantasy sports: risks, rewards, and IP, The Daily Record (Oct. 19, 2015), https://nydailyrecord.com/2015/10/19/fantasy-sports-risks-rewards-ip/.

  190. 505 F.3d 818 (9th Cir. 2007), cert. denied, 553 U.S. 1090 (2008).

  191. Id.

  192. Adam Wells, Pierre Garcon Files Class-Action Lawsuit against FanDuel on NFL Players’ Behalf, Bleacher Rep. (Oct. 20, 2015), https://bleacherreport.com/articles/2576933-pierre-garcon-files-class-action-suit-against-fanduel-on-behalf-of-nfl-players.

  193. Matt Wilhalme, Redskins’ Pierre Garcon files lawsuit against FanDuel on behalf of NFL players, L.A. Times (Oct. 30, 2015), https://www.latimes.com/sports/sportsnow/la-sp-sn-redskins-pierre-garcon-lawsuit-fanduel-20151030-story.html.

  194. ESPN.com news services, Redskins’ Pierre Garcon sues FanDuel on behalf of NFL players, ESPN (Oct. 30, 2015), https://www.espn.com/chalk/story/_/id/14011070/pierre-garcon-washington-redskins-leads-class-action-lawsuit-fanduel. “The lawsuit notes that Garcon's name appears frequently in FanDuel commercials, including a 28-minute infomercial in which his name is seen 53 times.” Id.

  195. ESPN.com, supra note 146.

  196. Daniels v. Fanduel, Inc., 190 N.E.3d 390 (Ind. 2018).

  197. Ind. § 32-36-1-8(a). The statute defines the right of publicity as “a personality’s property interest in the personality’s (1) name; (2) voice; (3) signature; (4) photograph; (5) image; (6) likeness; (7) distinctive appearance; (8) gestures; or (9) mannerisms.” Ind. § 32-36-1-7.

  198. Daniels v. FanDuel, Inc., 909 F. 3d 876 (7th Cir. 2018) (certifying pursuant to Erie doctrine the question of first impression to the Indiana State Court).

  199. Id.

  200. 190 N.E.3d at 391 (noting also the statute contains a second exception for use of personality that is within the “public interest.”).

  201. Id. at 396-97 (stating that “[f]antasy sports operators use factual data combined with a significant, creative component that allows consumers to interact with the data in a unique way. Although fictional salary values are assigned to players, this does not change the function of the underlying data. It is difficult to find that the use of this otherwise publicly available information is somehow drastically different such that it should be placed outside the definition of “newsworthy.”).

  202. Weston, Maureen A, The Fantasy of Athlete Publicity Rights: Public Fascination and Fantasy Sports’ Assertion of Free Use Place Athlete Publicity Rights on an Uncertain Playing Field, 11 Chapman L. Rev. 581 (2008), available at SSRN: https://ssrn.com/abstract=2461869

  203. Id.

  204. Id.

  205. Id.

  206. Id.

  207. Id.

  208. 966 F.3d 1334 (Fed. Cir. 2020).

  209. Id. See also CG Technology Development, LLC v. Interactive Games Ltd., 442 F. Supp. 3d 840 (Fed. Cir. 2020) (dismissing claims of patent infringement for look up table on mobile gaming device).

  210. Gouker, supra note 31 (“The height might have been when one DraftKings commercial was playing roughly every 90 seconds.”). See also Ilan Mochari, Why Draftkings and FanDuel Spent $206 Million in Ads This Year, Inc. (Oct. 15, 2015), https://www.inc.com/ilan-mochari/fantasy-sports-betting-startups-206-million-tv-ads.html

  211. Seth Stevenson, Think of the Children! The Moral Panic Over Fantasy Sports, Slate (Sept. 29, 2015), https://slate.com/culture/2015/09/draftkings-and-fanduel-the-moral-panic-over-fantasy-sports-betting-is-misguided.html

  212. Johnson v. FanDuel, No. 15-cv-7963 (GHW), 2015 WL 9499513, (S.D.N.Y. Dec. 7, 2015). See also Jared Firestone, FanDuel, DraftKings Face Class Action Lawsuit in Wake of Cheating Scandal, Expert Institute (last updated June 23, 2020), https://www.expertinstitute.com/resources/insights/fanduel-draft-kings-face-class-action-lawsuit-in-wake-of-cheating-scandal/. (“[T]hese companies made it appear that a user only had to be smarter than an average fan to win. When really they were going against insiders with advanced analytics. In reality, just over 1 percent of daily fantasy players earned 91 percent of all winnings in the first half of 2015.”). Id.

  213. Firestone, supra note 212.

  214. Scott Polacek, DraftKings, FanDuel Facing Lawsuit for Fraud, Negligence, False Advertising, Bleacher Report (last visited Jan. 5, 2020), https://bleacherreport.com/articles/2576928-draftkings-fanduel-facing-lawsuit-for-fraud-negligence-false-advertising.

  215. Id.

  216. Id.

  217. Firestone, supra note 212.

  218. Dustin Gouker, Nothing But the Truth? Draftkings Faces New Class-Action Lawsuit for Alleged False Advertising, Legal Sports Rep. (Apr. 28, 2015), https://www.legalsportsreport.com/1205/draftkings-faces-new-class-action-lawsuit-advertising/.

  219. Gardner v. Drafkings (2015); Firestone, supra note 212 (stating that Gardner sued for $5 million, claiming that DraftKings “falsely advertised in saying it would match his first deposit with a “100% First Time Deposit Bonus.” DraftKings slow releases its bonus. So in actuality the plaintiff would have to spend $250 in entry fees to obtain his full $10 bonus.”); Joe Drape & Jacqueline Williams, Scandal Erupts in Unregulated World of Fantasy Sports, The New York Times (Oct. 6, 2015), https://www.nytimes.com/2015/10/06/sports/fanduel-draftkings-fantasy-employees-bet-rivals.html. In 2019, a former “Bachelor” contestant won $1 million in a DraftKings contest on the NFL playoffs and was soon stripped of her prize after it was alleged she and her husband colluded to win the contest. Both parties entered the maximum 150 lineups in the contest, but none of their entries were duplicated which caused some players to accuse the couple of colluding. Id.

  220. Ashley Kieler, Fan Duel, DraftKings To Pay $12M To Resolve False Advertising Allegations In New York, CONSUMERIST (last updated Oct. 31, 2016), https://consumerist.com/2016/10/25/fanduel-draftkings-to-pay-12m-to-resolve-false-advertising-allegations-in-new-york/.

  221. Id.

  222. Id.

  223. In re Daily Fantasy Sports Litigation, 2019 WL 6337762, MDL No. 16-02677-GAO (D. Mass. 2019) (granting DFS companies' motions to compel arbitration of over 80 player plaintiff cases) See also Parnell v. FanDuel, 591 S.W.3d 315 (Ark. 2019) (affirming dismissal of consumer, a user of fantasy sports Web site, brought putative class action against Web site operator, alleging violation of Arkansas Deceptive Trade Practices Act (ADTPA) for failure to state a claim and ruling that DFS operator was not unjustly enriched by its alleged failure to match consumer's deposit into Web site account as promised).

  224. https://www.docketbird.com/court-cases/In-re-Daily-Fantasy-Sports-Litigation/mad-1:2016-md-02677

  225. DraftKings on responsible gambling and parental controls (Mar. 15 2021) DraftKings | Daily Fantasy Sports For Cash

  226. The Real-life Dangers of Daily Fantasy Sports, Hackensack Meridian Carrier Clinic (Aug. 9, 2019), https://carrierclinic.org/2019/08/09/the-real-life-dangers-of-daily-fantasy-sports/.

  227. Id.

  228. Id.

  229. Mike Curley, NJ Adopts Fantasy Sports Rules Aimed At Protecting Kids, Law360 (Dec. 10, 2019), https://www.law360.com/articles/1226893/nj-adopts-fantasy-sports-rules-aimed-at-protecting-kids.

  230. Id.

  231. Id.

  232. Drake Baer, Fantasy football has been infiltrated by a ‘shark and fish’ system that crushes most people’s chances, Business Insider (Sept. 16, 2015), https://www.businessinsider.com/fantasy-football-favors-the-sharks-heavily-over-the-fish-2015-9. See also FanDuel, 2015 FanDuel Fantasy Football Preseason Commercial (version 2), https://www.youtube.com/watch?v=-lVS87mhZQo.

  233. Id.

  234. Id.

  235. Id.

  236. Id.

  237. Id.; https://www.sportsbusinessdaily.com/Journal/Issues/2015/07/27/Opinion/From-the-Field-of-Fantasy-Sports.aspx.

  238. Id.

  239. Id. Joshua Brustein & Ira Boudway, You Aren’t Good Enough to Win Money Playing Daily Fantasy Football, Bloomberg (Sept. 10, 2015), https://www.bloomberg.com/news/articles/2015-09-10/you-aren-t-good-enough-to-win-money-playing-daily-fantasy-football.

  240. Id.

  241. Id.

  242. Id.; https://www.sportsbusinessdaily.com/Journal/Issues/2015/07/27/Opinion/From-the-Field-of-Fantasy-Sports.aspx

  243. Id. https://www.sportsbusinessdaily.com/Journal/Issues/2015/07/27/Opinion/From-the-Field-of-Fantasy-Sports.aspx

  244. Id.

  245. Julie Moraine DraftKings Settles MDL, Pays $7.28M and $720K to Players (March 4, 2021) https://www.gamblingnews.com/news/draftkings-settles-mdl-pays-7-28m-and-720k-to-players/

  246. Id.

  247. Allen, supra note 70.

  248. Id. See also Craig Newman, Cybercrime & Sports – The Law of Unintended Consequences (March 2019), Bloomberg.

  249. Timothy Lee, Esports Bet Pays Off for Daily Fantasy Sports During the Pandemic, (Oct. 20, 2020), https://venturebeat.com/2020/10/20/esports-bet-pays-off-for-daily-fantasy-sports-during-the-pandemic/

    See also Esports: The Next Big Thing, What You Ought to Know to Make Serious Money on Esports, https://zcodesystem.com/esports/?hop=lml2020&domain=https%3A%2F%2Fventurebeat.com%2F&kw=daily+fantasy+sports&refererr=https%3A%2F%2Fventurebeat.com%2F2020%2F10%2F20%2Fesports-bet-pays-off-for-daily-fantasy-sports-during-the-pandemic%2F

  250. Id.

  251. Anthony Dreyer and Andrew Patrick, Daily Fantasy Sports Decisions Risk Clouding Legal Landscape, N.Y. L. J. (Aug. 4, 2020) (noting that “[p]aid contests that arguably involve a mix of chance and skill also have emerged in esports. As esports operators that offer paid contests approach the height of their popularity, they may face similar challenges as DraftKings and FanDuel have faced at the state and federal levels.”), https://www.law.com/newyorklawjournal/2020/08/04/daily-fantasy-sports-decisions-risk-clouding-legal-landscape/?slreturn=20200930152508

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Acknowledgements

The author would like to thank Pepperdine Law’s Kerstin Leistner, Head of Reference, and Pepperdine law students Jason Bodie and Nicole Geiser for their helpful research assistance. This article is dedicated to my brother-in-law and KC Chiefs fan, Daniel Jensen, may his DFS team finally win.

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Weston, M.A. Daily fantasy sports and the law in the USA. Int Sports Law J 21, 121–139 (2021). https://doi.org/10.1007/s40318-021-00192-0

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