South Dakota’s attorney general became the fourth state attorney general to offer a statement regarding daily fantasy sports, saying he would not seek felony indictments without more “guidance.”
SD Attorney General Marty Jackley becomes the fourth state AG to formally talk about DFS in a manner other than indicating that the AG’s office was looking into the matter.
What the AG said on DFS
Jackley issued a statement on Monday regarding DFS, which was a bit cryptic regarding his intent. He basically said the law was not clear enough to bring any type of criminal action, but seemed to leave the door open to action in the future, and on the civil end of the spectrum. Here is what he said:
“Based upon the current state of uncertainty, including the ongoing debate on whether daily fantasy sports wagering is predominately a permissive game of skill or an unlawful game of chance, it will not be my intent to seek felony indictments here in South Dakota absent a clearer directive from our state legislature. I will continue to consider other alternatives including potential civil remedies and National Attorneys General joint action aimed at protecting the intent of our Constitutional and statutory provisions.”
What Jackley has in mind on the civil end is unknown. More from the presser on what Jackley plans moving forward:
Attorney General Jackley has provided the South Dakota Gaming Commission with the opportunity to provide guidance, and will continue to do so in relation to any potential future civil matters, and he has considered the actions of and discussions with other State Attorneys General. It is also important to recognize that Federal law, the state in which a wager is made, and the state in which a wager is received, may have jurisdiction over such wagering.
You can read the entire press release here.
The DFS backstory in South Dakota
Jackley has never said anything formally about DFS and its legality, previously. But he did offer the following in November: “I recognize that fantasy sports betting has gained national attention due to its popularity and concerns about potential federal and state law violations.”
The South Dakota gaming commission held a hearing in November; there, state regulators said they had no authority to oversee DFS. Jackley had said he would wait for that meeting to conclude before weighing in on DFS.
There has been no legislative track, so far, to deal with the DFS industry in South Dakota.
At least a couple of operators do not serve South Dakota, based on state law.
The RAWA angle
In the press release, Jackley’s office also addressed the Wire Act — a law that currently only bans interstate sports betting.
He indicated that he and AGs from seven other states have signed a letter in favor of the Restoration of America’s Wire Act, a bill that would expand the reach of the Wire Act to outlaw some forms of online gambling. RAWA currently contains a carveout for fantasy sports, much like the Unlawful Internet Gambling Enforcement Act does. A Congressional committee hearing about online gambling is scheduled for this week.
The inclusion of RAWA support in a press release about DFS is a strange juxtaposition; there’s been no impetus to change the bill to include DFS.
Of course, RAWA, which has been around for quite some time now, has gained little traction and appears unlikely to gain widespread support in Congress.
What the other state AGs have done
Jackley joined fellow AGs in Nevada, New York and Massachusetts in weighing in on DFS. Those three AGs have taken widely different actions, vis a vis state law:
- NY AG Eric Schneiderman has alleged that DFS operators DraftKings and FanDuel constitute illegal gambling operations.
- Massachusetts AG Maura Healey has said that DFS is legal under state law, but has also proposed regulations for the DFS industry.
- Nevada AG Adam Laxalt has said DFS is gambling under state law and requires a license to operate. No action has been taken by the AG’s office, other than issuing an opinion on DFS.