The Attorney General Offices That Have Been Oddly Quiet On Daily Fantasy Sports

Posted on March 17, 2016

[toc]The list of states where attorneys general have weighed in on the legality of daily fantasy sports ranges from the infamous — like New York — to under the radar — like Vermont.

But some states are conspicuous in the fact that there has been no opinion on DFS given, or there has very little chatter on the subject. That comes even though an opinion has been asked for, or one appears to be needed. Why haven’t these state AGs weighed in?

California AG Kamala Harris

The possibility of the California attorney general taking a stance on DFS has been floating around for more than four months. A request was made in November by Assemblymember Marc Levine — the only member of the state Assembly to vote against a DFS regulatory bill that has since been on hiatus for more than a month and a half now that it is in the Senate.

The range of possibilities on why Harris has not weighed in is wide. Some theories:

  • The opinion is being drafted and simply hasn’t been released.
  • The issue is being put on the back burner in the hopes that a legislative effort can reach the finish line
  • Harris is running for the U.S. Senate, and getting into the DFS debate is something she doesn’t want to get involved in; Levine already bore the industry’s wrath.
  • On the flipside of that coin, some sources indicated to Pechanga.net that they believed she is staying mum because of campaign contributions, and that her office has already looked at the issue.

We have no insight into which of those possibilities is the most valid, but if a legislative answer is not reached in 2016, then the lack of an opinion will continue to stand out like a sore thumb.

The law doesn’t really appear to be on DFS’ side upon reading Penal code §337a, but it’s certain DraftKings and FanDuel have a legal defense ready to go if needed.

California, of course, is the biggest and most important state outside of New York in terms of where legal clarity is most needed in daily fantasy sports. What role the AG may play in all of this remains an open question.

Florida AG Pam Bondi

Florida is in much the same position as California, with a law currently on the books that looks just as bad or perhaps worse for DFS.

A legislative effort looked like it had legs in January, but progress on DFS bills stalled soon after. The standalone bills couldn’t get out of committee, and efforts to attach DFS regulation to other legislation failed before the legislature adjourned.

Short of a special session — something that looks unlikely at this point — DFS apparently is not going to get the legal clarity it hoped for in Florida in the short term.

That leaves Bondi, who has been asked repeatedly about the legality of DFS. Every time, she says the matter should be handled federally and usually mentions the U.S. Attorney’s Office in Tampa. That appears to be a hat tip to the federal grand jury that started looking into DFS, in some shape or form, back in October.

At least one newspaper has called on Bondi to do something on the fantasy sports front, given that a negative attorney general opinion from 1991 hangs over the industry. From the Tampa Bay Times:

It shouldn’t fall to the federal government and private citizens to enforce Florida law. Bondi has an obligation to either act on her predecessor’s finding or issue a new one herself.

There has been no indication what, if anything, might come out of the U.S. Attorney’s office; and the legislative effort appears to be dead until 2017. Is there a chance Bondi could be forced to weigh in, one way or another?

Others: Tennessee, Michigan

Tennessee, in the eyes of some legal experts, is among the most vulnerable states for DFS operators based on current law. The office of AG Herbert Slatery III has yet to weigh in, despite this months ago:

Tennessee does look like one of the favorites to pass DFS regulation, however, in the short term, so an opinion could be rendered moot.

Michigan has been on the radar since September, when the Michigan Gaming Control Board opined that DFS is not legal in the state. A legislative effort has not gone past introduction.

All has been quiet from the AG’s office since December; from the Detroit News:

Michigan Attorney General Bill Schuette has not weighed in on whether he thinks the plethora of fantasy sports websites are legal.

“Because of our mission, we cannot offer general legal advice or answer hypotheticals about legal situations, so we have no comment on fantasy sports,” Schuette spokeswoman Andrea Bitely said in an email.

MGCB director Richard Kalm also indicated that the AG was “looking” at DFS, however, in the same story.

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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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