Hildabrand announced the bill on Monday (the full text is not yet available), which would make daily fantasy sports a skill-based based game and not a “lottery,” as the KRGC claims.
Hildabrand had this to say according to a story at The Wichita Eagle website:
“I want to make sure those chances are zero (of going to jail for playing fantasy sports). This is an innocent activity that thousands of Kansans participate in and I would say the vast majority have no idea they’re even breaking the law, so I just want to make sure they’re protected.”
Fantasy sports are illegal Kansas?
By the letter of the law, and if you listen to the KRGC — yes, fantasy sports are illegal. According to the Commission, fantasy sports are “lotteries,” under Kansas state law. Only the state can offer “lottery” games under state law.
As with any other illegal gambling matter, if a fantasy sports league involves the elements of (1) prize, (2) chance and (3) consideration, then it is an illegal “lottery” prohibited by Kansas criminal law. See K.S.A. 21-6404.
In short, if a fantasy sports league has a buy-in (no matter what it is called) for its managers and gives a prize, then all three elements of an illegal lottery are satisfied.
The gaming commission responded by saying that this wasn’t a change; fantasy sports have, in fact, been illegal all along. The following addendum was made to the FAQ page after a flurry of press coverage following the Forbes story:
Despite what you may have heard recently in the press, Kansas has not suddenly changed its “policy” on the legality of fantasy sports leagues (FSL), and the information posted about FSLs on the KRGC’s Frequently Asked Questions (FAQ) webpage is not new. There is no law that directly addresses FSLs or any other specific gambling enterprise (poker runs, casino nights, etc.). To our knowledge, no agency at the State or local level is ramping up efforts to go after FSL participants.
Ultimately, the legality of any particular fantasy sports league enterprise (or any other gambling enterprise) would have to be resolved in a court of law, based on the facts of the particular case and a court’s own legal analysis of Kansas gambling laws.
Chance or skill?
The skill vs. chance debate is the cornerstone of legality in Kansas.
Although fantasy sports have been classified as not gambling under the Unlawful Internet Gambling Enforcement Act from 2006, the KRGC still deems it a game of chance. More from the previously referenced FAQ:
We do not argue that there are some elements of skill involved in fantasy leagues. Particularly, fantasy managers must be knowledgeable of player statistics, and must execute some strategy in selecting the best players for their fantasy team. On the other hand, a manager leaves to chance a number of things, including: (1) how a drafted athlete performs in a future event; (2) whether a drafted player is injured; (3) whether the player’s actual team in a given week executes a game plan that fits the player’s talents; whether the coach calls plays that favor the player; and (4) how opponents of the actual player (who may be drafted by another manager) actually play. For those reasons, chance predominates over skill in fantasy sports leagues.
So are fantasy players in Kansas getting in trouble?
The law as interpreted at the KRGC website certainly should give fantasy sports players pause. The KRGC is basically saying, “yes, it’s illegal, but you’re probably not going to get in trouble for it.” But, the KRGC isn’t in charge of enforcing the laws, and if someone in Kansas law enforcement decided that fantasy sports players should be following the law, it would be quite a mess.
If you want to play fantasy sports for real money in Kansas, our best guess is that you are in the clear. But until the legislation put forward by Hildabrand passes, that’s far from a 100% guarantee.
Kansas is less of a danger than the five states that most DFS sites currently avoid: Arizona, Montana, Washington, Iowa and Louisiana. Iowa is the one state that is making real progress toward changing its negative stance toward fantasy sports.
Changing the law
There’s no real reason to believe there will be opposition to the law proposed by Hildabrand. He is a Republican, and other than the KRGC statement on the matter, there have been no lawmakers in the state who have been outspoken about fantasy sports.
With the way that Hildabrand has framed the public discourse in Kansas — that the average fantasy sports player is doing nothing wrong — it seems likely that the legislation will find its way through the Kansas legislature.