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The attorney general also said that paid-entry fantasy sports, generally speaking, are “not decided predominantly by chance.”
West Virginia Attorney General Patrick Morrisey was responding to a request for a legal opinion regarding DFS from Senate President William Cole. It was requested in light of the introduction of a bill to legalize DFS, S 529.
That bill passed the Senate, 18-16, in February. It was not taken up by the House of Delegates and did not become law.
But the AG just released his opinion, which diverged from AG opinions in a number of states flat out declaring that paid-entry fantasy contests are either legal or illegal vis a vis state law.
Here is the crux of the opinion:
We conclude that West Virginia does not prohibit the offering of or participation in fantasy sports games, as they are defined in Senate Bill 529. We read state law to prohibit only betting upon games decided at least predominantly by chance.
Fantasy sports games, as defined in the Senate Bill, are not so decided.
The main takeaway is not terribly wide-ranging. In essence, the AG is punting on DFS legality in general, and saying “it depends” on the specific contest being considered.
However, the opinion does note that fantasy sports are “not wholly or predominantly decided by chance,” at least defined by the Senate bill:
But you have not asked, and we do not answer, whether a court would find that a particular fantasy sports game falls within the definition in Senate Bill 529. The answer to that question would turn on the specific rules of a particular fantasy sports game, and possibly other factual information that you have not provided.
Nevertheless, we do note that fantasy sports games, as we have described them in the background discussion above, are likely not decided predominantly by chance.
The application of the WV opinion is fairly limited, but it does offer these caveats:
The West Virginia opinion notes that sports betting is also a game of skill, under state law:
We thus echo a previous attorney general, who opined that betting on sports is not something predominantly determined by chance, but rather by skill.
Despite the opinion, the AG says the statehouse should probably tackle legislation regarding DFS:
As with any novel question of law, though, the best course of action may be for the Legislature to pass a law that speaks directly to the lawfulness of fantasy sports games.
Few jurisdictions have found DFS to be clearly legal under state law — Rhode Island and Massachusetts have. But the West Virginia opinion goes onto say that its finding is not at odds with other states that have declared DFS to be illegal gambling:
Those state attorneys general who have found their state laws to prohibit only betting upon games decided predominantly by chance, as we have determined about West Virginia law, have similarly found pay-to-play fantasy sports games to be lawful in their states.
In contrast, in those states where fantasy sports games have been found unlawful, the state attorneys general have found state gambling laws to apply more broadly than in West Virginia, prohibiting betting in many more games than simply those where chance predominates.
The opinion did not come out before another state issued its opinion, however.
After some silence on the legality of DFS, this is the second AG opinion to surface in the past week. Delaware’s AG determined that paid-entry fantasy sports constitutes illegal gambling under that state’s law.
Interestingly, the Delaware Department of Justice said chance is a dominant factor in DFS contests, which appears to be at odds with the West Virginia finding.
Relying on the Delaware Constitution, as well as State and Federal case law, DOJ attorneys determined that online fantasy contests that involve payment for playing and monetary rewards constitute gambling because chance, as opposed to skill, is the dominant factor in the outcome of these contests.
While Delaware did little to back up that stance and did not offer a formal opinion, West Virginia obviously took a very close look at paid-entry fantasy sports contests, with nearly 40 footnotes in a 14-page opinion.
DraftKings offered the following statement in the wake of the AG opinion coming out:
“DraftKings is pleased with the opinion of Attorney General Patrick Morrisey that daily fantasy sports are games of skill and lawful in the state. The opinion is also welcomed by tens of thousands of daily fantasy sports fans in West Virginia who enjoy the fun and excitement of our competitive games. We look forward to continuing our cooperation with elected leaders and state officials to ensure the best experience possible for our players.”
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