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The conundrum: Offer a game that passes muster as a “game of skill” under state laws that govern gambling, but a game that’s easy enough to win — at least sometimes — for the average user.
A recent feature in The Baltimore Sun got into this dichotomy a bit, telling the story of an ex-convict that won $300,000 at DraftKings. Long story short, the user in question is not what would be considered a DFS “pro,” that pores over data to set his or her lineups each week.
A statement from DraftKings to the Sun touched on this (emphasis added):
“Players enter picks in a variety of ways, and the way Eddie entered his picks is not unusual. In fact, we see that a lot amongst our winners,” DraftKings said in a statement. “As evidenced by Eddie winning, yes, players of all skill levels can win in our contests. We know our business and contests will only continue to be successful if everyone understands our unwavering commitment to a level playing field. “
I’ve read pretty much everything that comes out of the DFS industry in the past few years, and I don’t think I’ve seen that kind of wording come from anyone associated with either DraftKings or FanDuel. (I’ll wonder aloud if the legal department at DraftKings signed off on this statement.)
“If you are able to influence the game or control the game, and the language in the statute is control or influence, then it is not gambling under New York law,” Boies said. “Anyone who believes that daily fantasy sports players do not control or influence how they do in those contests, has never played those contests. Those contests require a great deal of skill, and skill is what gives people the ability to influence or control the outcome.”
In the end, the more recent DraftKings take is a totally accurate statement. Anyone can win a single contest — or win money over a small sample size — regardless of how skillful they are at DFS. Over a large enough sample size, skill shines through. But the most skillful DFS player does not win every contest he or she enters.
In an ideal world, whether DFS is gambling or not shouldn’t matter. It should be legal, and regulated, and anyone who wants to play should be able to.
The reason the discussion still matters: the legality DFS is not a settled matter of law in a wide swath of jurisdictions in the US. About a year ago, the DFS industry insisted it was a legal game of skill in 45 states; because of legal concerns in some states, DraftKings and FanDuel now serve fewer.
Still the industry is often winning the battle on skill vs. chance in statehouses. Ten states have passed laws defining DFS as a legal game of skill; that includes Maryland, where the law has been called into question. Eight of those states passed laws this year.
Still, the debate over whether DFS is a game of skill or gambling likely won’t go away. But for everyone’s sake, it would be nice if it did.