How Daily Fantasy Sports Could Intersect With The Brewing Battle Over Scalia’s Supreme Court Seat

Posted on February 15, 2016

[toc]The legality of daily fantasy sports is not likely to ever find its way before the U.S. Supreme Court. But the recent passing of Justice Antonin Scalia has a chance to impact the debate surrounding DFS, nonetheless.

California, SCOTUS and DFS

So, how could the open seat affect daily fantasy sports? The intersection comes in California, one of the hot spots for daily fantasy sports around the country.

While a dozen state attorneys general have considered the issue of DFS or have issued official opinions on its legality, California Attorney General Kamala Harris has not yet joined that group. Harris was asked for her opinion by Assembly Marc Levine in November, but no opinion has been issued, and there’s no sense whether there is a timeline for one to be offered, if at all.

Harris, meanwhile, is on a number of short lists for a replacement for Scalia. (She’s also currently running for the U.S. Senate seat being vacated by retiring Sen. Barbara Boxer.) How serious of a possible nominee she is is up for debate, but she has been offered up as a potential justice by the New York Times, USA Today and several other prominent media outlets.

There is also this interesting bit of intersection, for another potential nominee — the attorney general for the U.S., Loretta Lynch:

Harris and the DFS opinion (or not)

If Harris does get the nomination for SCOTUS, would that make her more or less likely to offer an opinion on DFS? That’s a matter for speculation.

For now, conventional wisdom says she might be staying out of the DFS fray while she’s a candidate for elected office. If freed from that concern, it’s at least feasible she would be more likely to weigh in.

After all the AG’s office wouldn’t just come to stand-still because Harris is a SCOTUS nominee; and an opinion on DFS is not likely to be controversial with the backdrop of confirmation hearings. PR concerns regarding DFS would be far more important in the context of her Senate race.

Another possible reason she might be sitting out the DFS debate? She could hope that a legislative effort makes the need for an opinion based on current state law moot.

There has been momentum behind an effort to legalize and regulate DFS — so far, a bill has made it through the state Assembly. But the so-far unfettered progress of the legislation may be stunted by opposition from some tribes in the state.

There is also the possibility that any such opinion is just a work in progress. Regardless, Harris getting the SCOTUS nod certainly would have a chance to have an impact on what happens in California.

How much longer can Harris’ office stay on the sidelines?

While Levine and a few other lawmakers have wondered aloud about the AG’s stance on DFS, there has been more impetus to find out what the AG has to say in the past week. Two tribes — the San Manuel and Morongo bands of Mission Indians sent letters to the sponsor of DFS legislation, Assemblymember Adam Gray.

The letters came right out and asked this:

Has there been outreach to the Attorney General or DOJ to determine the nature of DFS relative to California law?

In the letters, the two tribes also “wondered” whether DFS operators that are offering contests in the state are running afoul of the state constitution:

Pursuant to the California Constitution, “banked games” were granted exclusively to California’s Indian tribes through a voter-approved amendment to the state constitution. If DFS violates the Constitution’s prohibition against gaming of the sort found in Nevada casinos, it can be authorized only through a constitutional amendment approved by the state’s voters.

Given the opinions offered by AGs in other states where there has been far less chatter about DFS legality, the absence of an opinion from Harris certainly appears conspicuous. Whether that results in her office ever issuing an opinion appears to be a matter still up for debate.

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Dustin Gouker

Dustin Gouker has been a sports journalist for more than 15 years, working as a reporter, editor and designer -- including stops at The Washington Post and the D.C. Examiner.

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