Are 'pick'em' or 'over/under player prop' games where you bet against the operator (not against other players) on individual athletes' performance a fantasy contest or sports betting under Virginia law?
Plain-English summary
Online operators have been marketing "pick'em" and "player prop" games as a form of fantasy sports. The mechanic: the operator sets a target stat for an athlete (over 75 receiving yards, under 0.5 touchdowns), the customer bets on whether the athlete will hit the target, the more athletes the customer picks the higher the multiplier. The customer is not playing against other customers. The customer is playing against the operator's baseline.
Delegate Wren Williams asked Attorney General Jason Miyares to classify this kind of game under Virginia law. The two relevant categories are "fantasy contest" (regulated by the Department of Agriculture and Consumer Services through registration certificates under the Fantasy Contests Act) and "sports betting" (regulated by the Virginia Lottery through permits under Va. Code §§ 58.1-4030 to -4048).
Miyares concluded that pick'em-style games are sports betting, not fantasy contests. The Fantasy Contests Act defines a "fantasy contest" with three elements: (1) prizes are set in advance, (2) winning outcomes reflect the relative knowledge and skill of the participants and are determined by accumulated statistical results, and (3) no winning outcome is based on a single performance of an individual athlete or player in a single actual event. Pick'em games fail elements 2 and 3. There are no participants competing against each other (the only competitor is "the house"), and the game is decided by individual single-event athlete performance.
The "sports betting" definition in § 58.1-4030 is broad: wagers on sports, sporting events, and "wagers related to the individual performance statistics of athletes." Pick'em-style games fit this definition cleanly. The opinion's bottom-line consequence is that any operator offering pick'em-style games to Virginia customers must comply with the sports betting permit regime administered by the Virginia Lottery Board, not the lighter-touch fantasy contest registration regime.
What this means for you
If you operate a pick'em or player-prop game in Virginia
Your product is sports betting under Virginia law. To offer it lawfully, you need a sports betting permit from the Virginia Lottery, not just a fantasy contest registration certificate from the Department of Agriculture. The permit regime is more demanding (capital requirements, integrity-monitoring obligations, age verification, problem gambling controls). If you have been operating in Virginia under fantasy contest registration only, you are exposed.
The two ways forward are to either obtain a sports betting permit and continue offering the product as a sports bet, or to redesign the product to fit the fantasy contest definition. The latter requires letting customers compete against each other (not just against an operator baseline) and structuring outcomes so they reflect accumulated statistical performance across multiple events, not single-event single-athlete results.
If you are restructuring, look at the three statutory elements carefully. Multi-player matchups, accumulated scoring, and outcomes that depend on more than a single athlete in a single event are the hallmarks of "fantasy contest" status.
If you are a Virginia customer of these products
The opinion affects what you can legally play, but enforcement burden has historically fallen on operators rather than recreational players. Still, illegal gambling under Virginia Code § 18.2-326 is a Class 3 misdemeanor. If a pick'em operator continues offering its product to you without a sports betting permit, you may be participating in unlicensed gambling. Operators that hold a Virginia sports betting permit are listed on the Virginia Lottery website.
If you are a sports betting permit holder in Virginia
This opinion levels the competitive playing field. Pick'em operators that previously operated under fantasy contest registration (with lower regulatory cost) are now required to either obtain a sports betting permit or exit. If they enter the sports betting permit regime, they become subject to the same rules as you, including integrity monitoring and responsible gambling requirements.
If you are a fantasy sports operator with traditional season-long or daily-fantasy products
Your core fantasy contest products (multi-player contests where customers compete against each other and where winners are determined by accumulated statistical performance) remain fantasy contests under the AG's reading. Nothing in this opinion threatens that classification. The opinion targets the narrower category of single-customer-vs-house pick'em games. If you have such products bundled with traditional fantasy offerings in Virginia, separate them and apply the proper regulatory framework to each.
If you are a Virginia Lottery Board regulator
This opinion gives you a clearer doctrinal framework for enforcement. Pick'em-style operators that argue they are exempt from sports betting regulation because their product is "fantasy" can be answered with the AG's three-element analysis. The lack of player-versus-player competition, single-event single-athlete dependency, all map onto the sports betting category, not the fantasy contest category.
If you are a Department of Agriculture regulator administering the fantasy contest registration regime
Use the AG's three-element test when reviewing applications for fantasy contest operator certificates. Applications that describe single-customer-vs-house pick'em mechanics should be redirected to the Lottery's sports betting permit process. The risk of overlap-based confusion is real because both products use sports performance data; the difference is in who the customer competes against and whether outcomes accumulate across events.
Common questions
Q: What's the difference between a fantasy contest and sports betting?
A: A fantasy contest under Virginia Code § 59.1-556 has three required elements: prizes set in advance; winners determined by relative knowledge and skill of multiple participants competing against each other based on accumulated statistical performance; and outcomes not based on single-athlete single-event performance. Sports betting is broader and includes any wager on individual athlete performance against an operator's line.
Q: My favorite app calls itself "fantasy." Why isn't it a fantasy contest then?
A: Per the AG, "Simply styling a game as 'fantasy' does not make it a 'fantasy contest' under Virginia law." The AG looks at the structural mechanics: who you compete against, how outcomes are determined, whether the contest depends on a single athlete in a single event.
Q: Is single-player daily fantasy still a fantasy contest if I pick a 6-player roster and play against the operator's baseline?
A: No, under the AG's reasoning. The lack of head-to-head competition with another customer takes it out of fantasy contest status, even if the picks involve multiple athletes. The winning outcome's dependency on the operator's line, not on other customers' picks, is decisive.
Q: Does the AG opinion shut down pick'em games in Virginia?
A: No. It says pick'em games must comply with the sports betting permit regime if offered in Virginia. Several major sportsbooks already offer player-prop wagers as part of their permitted sports betting products. The change is regulatory framework, not a ban on the product type.
Q: What's the penalty for offering an unpermitted sports betting product in Virginia?
A: Illegal gambling is a Class 3 misdemeanor under § 18.2-326 for participants. Operators face additional civil and administrative consequences from the Lottery Board. The Virginia Supreme Court recently confirmed in Sadler Bros. Oil Co. (2023) that gambling can be heavily regulated and even banned by the Commonwealth as an exercise of police power.
Q: Are season-long fantasy leagues affected?
A: Generally no. Season-long fantasy leagues with friends, where you draft a roster and compete against other league members based on accumulated season-long statistics, fit the fantasy contest definition cleanly: multiple players, accumulated statistics, no single-event-single-athlete dependency.
Q: What about head-to-head daily fantasy lineups?
A: Head-to-head daily fantasy where two customers each draft a 9-player baseball lineup and compete against each other based on accumulated stats is a fantasy contest, not sports betting. The customer-vs-customer structure is decisive.
Background and statutory framework
Virginia treats gambling as something the Commonwealth can heavily regulate or ban entirely. § 18.2-326 makes "illegal gambling" a Class 3 misdemeanor. § 18.2-325 defines illegal gambling broadly to capture any bet for money on a chance event. The General Assembly carves out exceptions for specific regulated activities: charitable gaming, the state lottery, casino gaming, horse racing and pari-mutuel wagering, fantasy contests, and sports betting.
The Fantasy Contests Act passed in 2016. It allows licensed fantasy contest operators (registered with the Department of Agriculture and Consumer Services) to offer fantasy contests. The Act defines a fantasy contest with three elements: prizes set in advance; winners determined by relative knowledge and skill of contestants competing on accumulated statistics; outcomes not dependent on single-event single-athlete performance. The Act prohibits operator employees and their families from participating in contests on the same platform.
Sports betting was legalized in 2020 (chs. 1218, 1256). The sports betting permit regime is administered by the Virginia Lottery Board. § 58.1-4030 defines sports betting broadly as wagers on professional sports, college sports, amateur sports, sporting events, and other approved events, including wagers related to individual athlete performance statistics. The permit regime requires permit holders to operate sports betting facilities (in licensed casinos) or sports betting platforms (online or mobile). Implementing regulations are at 11 VAC §§ 5-70-10 to 5-70-310.
The two regimes are explicitly mutually exclusive. § 58.1-4030 says "Sports betting does not include . . . participating in fantasy contests . . . ." § 59.1-569 says the Fantasy Contests Act "shall not apply to any sports betting or related activity." The line between them is drawn by the structural features the AG identifies: head-to-head player competition, accumulated multi-event scoring, and absence of single-event single-athlete dependency are all on the fantasy contest side. Single-customer-vs-house betting on individual athletes' single-event performance is on the sports betting side.
Pick'em and player-prop games sit on the sports betting side under this framework. They lack the head-to-head structure (the operator is "the house," not another customer), and they typically resolve on single-event athlete performance. Whether an operator markets the product as "fantasy" is irrelevant; the structural test controls.
Citations and references
Statutes:
- § 18.2-325, Va. Code Ann. (illegal gambling definition)
- § 18.2-326, Va. Code Ann. (illegal gambling penalty)
- § 58.1-4030, Va. Code Ann. (sports betting definition)
- § 59.1-556, Va. Code Ann. (Fantasy Contests Act definitions)
Cases:
- Commonwealth v. Sadler Bros. Oil Co., No. 230610 (Va. Oct. 13, 2023) (unpublished) (Commonwealth's police power over gambling)
- Manu v. GEICO Cas. Co., 293 Va. 371 (2017) (plain-meaning canon)
Source
- Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
- Original PDF: https://www.oag.state.va.us/files/Opinions/2023/23-058-Williams-issued.pdf
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.
COMMONWEALTH of VIRGINIA
Office of the Attorney General
202 North Ninth Street
Richmond, Virginia 23219
804-786-2071
December 12, 2023
Fax 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1
Jason S. Miyares
Attorney General
The Honorable Wren M. Williams
Member, House of Delegates
Post Office Box 192
Stuart, Virginia 24171
Dear Delegate Williams:
I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.
Issue Presented
You inquire regarding the proper classification of a gambling scenario that involves customers of online contest operators placing bets on the performance metrics of specific athletes. You specifically ask whether an arrangement involving only a single customer constitutes a "fantasy contest" or "sports betting" under Virginia law.
Response
It is my opinion that, because fantasy contests require multiple customers competing against each other, a gambling arrangement that involves customers betting on athletes' performance metrics against an operator's established baseline, and not other contest participants, constitutes sports betting as defined in Virginia Code § 58.1-4030.
Background
You relate that various online contest operators offer online gambling contests to customers within the Commonwealth. You inquire regarding contests that are marketed as "fantasy games" and commonly known as a "pick'em-style" fantasy contest or an "over/under player prop pick'em" game. The operator of such games typically offers the customer a defined selection of athletes, each of whom is assigned a target outcome for a certain statistical category, such as passing yards or receiving yards in football. To play, the customer selects at least two athletes from the list and takes a wager on whether each selected athlete will achieve a given statistical outcome in a specified sporting event. The more athletes a customer selects, the higher the multiplier for the prize payout. There is no set wager amount or set entry fee for the contest; rather the customer inputs the amount he wishes to wager, and a winning wager receives the sum of the wager times the multiplier if all aspects of the wager are correct. The contests are single player games and customers do not compete against other players, but instead against metrics established by the operator ("the house").
Applicable Law and Discussion
The Supreme Court recently affirmed that "gambling" is "conduct that may be heavily regulated and even banned by the Commonwealth as an exercise of its police powers." Pursuant to its police power, Virginia classifies illegal gambling as a Class 3 misdemeanor. "Illegal gambling" is defined as "the making, placing, or receipt of any bet or wager in the Commonwealth of money or other consideration . . . , made in exchange for a chance to win a prize, stake, or other consideration . . ., dependent upon the result of any game, contest, or any other event the outcome of which is uncertain or a matter of chance . . . ."
Conduct that otherwise would constitute illegal gambling is permitted in some circumstances. Pertinent to your inquiry are "fantasy contests" and "sports betting," which were independently legalized in 2016 and 2020, respectively. Although these activities have much in common, Virginia law views them as distinct enterprises, and they are subject to different regulatory schemes. Simply styling a game as "fantasy" does not make it a "fantasy contest" under Virginia law; rather your inquiry involves distinguishing between the two practices, which requires analysis of the statutory definitions of each.
The Fantasy Contests Act allows licensed entities, each known as a "fantasy contest operator," to offer consumers, "fantasy contest players," online or simulated game for play. Per statute, a "fantasy contest" is "any online fantasy or simulated game or contest with an entry fee in which" specified conditions are present. First, "the value of all prizes and awards offered to winning participants is established and made known to the participants in advance of the contest[.]" Second, "all winning outcomes reflect the relative knowledge and skill of the participants and shall be determined by accumulated statistical results of the performance of individuals, including athletes in the case of sports events[.]" Third, "no winning outcome is based on the score, point spread, or any performance of any single actual team or combination of teams or solely on any single performance of an individual athlete or player in any single actual event."
A plain reading of the statutory definition of "fantasy contest" thus reveals three key elements. In simplified terms they are 1) prizes are established and known in advance of the contest; 2) participants compete against each other and winners are determined based on accumulation of statistical performance; and 3) outcomes are not based on actual, single performances or event results. Accordingly, a "fantasy contest" is one in which multiple individual contestants earn points based on statistical, not actual, results of athletes' performances and a contestant wins upon garnering more points than the other contestants. The contest operator, or "the house," is not intended to be one of the individual contestants in a multi-player fantasy contest.
"Sports betting" is defined broadly as
placing wagers on professional sports, college sports, amateur sports, sporting events, or any other [approved] event . . . and any portion thereof, and includes placing wagers related to the individual performance statistics of athletes in such sports and events. "Sports betting" includes any [approved] system or method of wagering . . ., including single-game bets, teaser bets, parlays, over-under, moneyline, pools, exchange wagering, in-game wagering, in-play bets, proposition bets, and straight bets.
Notably, wagers made as part of a fantasy contest do not constitute bets on "professional sports" and are not "sports betting."
A comparison of these statutory definitions reveals some key distinctions between fantasy contests and sports betting. I first note that, while fantasy contests are limited to bets that relate to performance statistics of individual athletes, sports betting encompasses a broader range of betting options, whereby, in sports betting, gamblers can place bets on multiple aspects of sporting events, such as the final score, point spreads, and other aspects of a given game. Contests that offer participants the option to bet on these aspects of sporting events lie outside the scope of fantasy contests.
To the extent a specific instance of gambling involves betting on the performance statistics of individual athletes, other elements determine whether the conduct qualifies as a fantasy contest. The definition of "fantasy sports" clearly requires multiple contestants competing against one another for a win, with winning being determined by the contestants' "relative knowledge and skill[.]" In contrast, "sports betting" is a form of gambling where individuals wager on the outcomes of actual sporting events or specific statistical performances against the betting operator or house. Unlike fantasy contests, no specified entry fee is required, and the performance of other bettors is irrelevant. Moreover, a fantasy contest can be determined only "based on accumulation of statistical performance"; determinations based solely on the "single performance of an individual athlete or player in any single actual event" is expressly excluded from the definition of "fantasy contest." The key distinctions thus lie in the fact that the results of sports betting can be determined by a specific performance of an individual athlete, and without direct competition between bettors, as is the case in "fantasy contests."
You describe online contests currently available to customers within Virginia that are known as "pick'em style" or "over/under player prop pick'em" games and ask whether, as described, these contests constitute "fantasy contest" or "sports betting" under Virginia law. Based upon the legal distinctions and distinguishing features set forth above, in particular whether there is direct competition between customers, I conclude that the gambling arrangements you present do not fit the definition of a "fantasy contest" but rather align more closely with a form of "sports betting." Although the fact that individual contestants are not competing against each other is critical to this determination, I further conclude that, to the extent contest results hinge solely on individual performance metrics stemming from a single sporting event, the contest also falls outside the definition of "fantasy contest" and instead constitutes sports betting.
Conclusion
Accordingly, it is my opinion that when a customer places a bet related to individual athletes' performance metrics, the outcome of which is determined by reference to a contest operator's established baseline rather than choices made by other customers, the customer is engaged in sports betting and not a fantasy contest.
With kindest regards, I am,
Very truly yours,
Jason S. Miyares
Attorney General