Are pay-to-play fantasy sports leagues legal in West Virginia, or do they count as illegal gambling on a 'game of chance'?
Plain-English summary
In 2016, daily-fantasy-sports operators like DraftKings and FanDuel were operating across the country and state attorneys general were splitting on legality. The West Virginia Senate had passed Senate Bill 529 (18 to 16) defining "fantasy game" and declaring it not a crime; the House did not act. Senate President Cole asked the AG: under existing West Virginia law, are pay-to-play fantasy sports legal?
The AG said yes, given how S.B. 529 defines them.
The statutory landscape. West Virginia's anti-gaming statutes sit in chapter 61, article 10. § 61-10-11 bans private "lottery or raffle" won "by using dice, or by any other game of chance." § 61-10-5 bans betting "money or other thing of value on any game of chance." The state constitution (W. Va. Const. art. VI, § 36) bans private lotteries but expressly authorizes state-run lotteries (which include casino table games at state-owned facilities) and state-regulated charitable bingo and raffles. The Legislature has not banned all gaming. State v. Gaughan (1904).
The dominant-factor test. West Virginia's Supreme Court of Appeals and prior AG opinions treat the lottery-and-game-of-chance prohibitions as reaching only games "predominantly" decided by chance. The state constitution's lottery prohibition has long been read to apply to schemes "determined predominantly by chance" (State ex rel. Cities of Charleston (2003), citing State v. Hudson (1946)). § 61-10-11 applies to games "where chance predominates, even though skill or judgment may enter to some extent" (Hudson). § 61-10-5 has been applied to video poker as a "game of chance" because skill is only an element (United States v. Dobkin (1992)). The same predominance reading should apply to "game of chance" wherever it appears in the same article (In re Greg H.; Atlantic Cleaners & Dyers v. United States).
Why the predominance test is right. Five reasons. (1) West Virginia case law uses it. (2) § 61-10-10 separately bans "poolroom" wagers on "any horse race, prizefight, . . . game of skill or science, or other sport or contest", which means "games of chance" must leave room for "games of skill" and "games of sport," even those involving some chance. (3) The American Rule across most jurisdictions (38 Am. Jur. 2d Gambling § 5; Roberts v. Commc'ns Inv. Club of Woonsocket (R.I. 1981)). (4) Black's Law Dictionary's definition of "game of chance" turns on the "dominating element." (5) The rule of lenity (Dobkin): ambiguity in criminal statutes is resolved in favor of defendants.
Applied to fantasy sports. S.B. 529 defines a "fantasy game" as one in which winning outcomes "reflect the relative knowledge and skill of participants and are determined predominantly by accumulated statistical results of the performance of individuals, including athletes," and not "based on the score, point spread or performance of a single team or combination of such teams, or on any single performance of an individual athlete or player in a single event." That definition, in the AG's view, "specifically incorporates the dominant factor test" (echoing the Kansas AG's reading of identical language). A game so defined is by definition not predominantly chance, so it is not banned.
The AG also noted that typical fantasy sports operations (as commonly described in the industry) likely satisfy the test on their own facts: salary-cap-based roster strategy, weather and venue analysis, hour-to-hour injury monitoring, and the ability to start, bench, drop, and pick up players. Per Humphrey v. Viacom, Inc. (D.N.J. 2007), a fantasy team's success "depends on the participants' skill in selecting players . . . trading players . . . adding and dropping players . . . and deciding who among his or her players will start." A 2015 McKinsey study found that 91 percent of prizes in a daily-fantasy sample went to 1.3 percent of repeat players, evidence of skill differentiation. The AG declined to rule on whether any specific commercial product met S.B. 529's definition, leaving that to case-by-case factual analysis.
State AG comparisons. Ten state AGs had opined as of mid-2016. Those that applied a predominance test (Kansas, Massachusetts, Rhode Island) found fantasy sports legal. Those whose statutes prohibited any element of chance, prohibited games of skill or sport, or used a "material degree" standard found them illegal (Alabama, Arizona, Georgia, Hawaii, Idaho, Illinois, Mississippi, New York, Tennessee, Texas, plus Florida and Vermont). Nevada took a case-by-case position the AG rejected as "too narrow and particularized." Eight states had legislated express authorization (Colorado, Indiana, Kansas, Maryland, Mississippi, Missouri, Tennessee, Virginia).
The opinion's bottom line. Then-current West Virginia law did not criminalize the offering or playing of fantasy sports as defined in S.B. 529, but the AG noted that the cleanest path was for the Legislature to legislate directly. Cheating during a game and unfair or deceptive practices remained illegal regardless (W. Va. Code §§ 61-10-9; 46A-6-104).
Currency note
This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
The 2016 opinion was overtaken in important respects by subsequent legislative developments. West Virginia legislated more specifically on fantasy sports and online gaming after 2018, and federal law (the Supreme Court's Murphy v. NCAA decision in 2018) opened the door to state sports betting. Anyone working a present-day fantasy sports or sports-betting question in West Virginia must consult the current statutes and regulations rather than relying on this opinion as a current legality call.
Common questions
Q: What is the dominant-factor test?
A: A game is a "game of chance" if chance is the dominant factor in deciding winners, even though some skill is involved. A game is one of skill if skill predominates, even though some chance is involved. The test focuses on the character of the game generally, not on how a particular player happens to play it.
Q: Why is poker treated as a game of chance under West Virginia law but fantasy sports as a game of skill?
A: Per Dobkin, poker (and video poker) is treated as a chance-predominates game because the cards a player is dealt drive outcomes and players cannot select their cards. The Legislature has expressly classified casino poker as a chance game (W. Va. Code §§ 29-22C-2(b)(5); 29-22C-3(32)). Fantasy sports, by contrast, let participants pick their roster, manage their salary cap, and substitute players. Per a professor quoted in the opinion, "you pick your cards." That makes the dominant factor skill rather than chance.
Q: What if a fantasy product is mostly luck (e.g., random-roster contests)?
A: That product would not satisfy S.B. 529's definition. The opinion expressly declined to rule on specific commercial products. A "random slate of players" approach (the Nevada AG's hypothetical) might tilt toward chance. The bill defines the lawful category by the test, not by the product label.
Q: Did this opinion legalize sports betting?
A: No. The opinion is about fantasy sports as defined in S.B. 529. Single-team or single-event sports betting was a different question and was prohibited as a "game of chance" (or under federal law, PASPA, until Murphy v. NCAA) at the time. The 1991 AG opinion (64 W. Va. Op. Att'y Gen. No. 8) had concluded sports betting was a skill activity under West Virginia's predominance test, but federal PASPA controlled.
Q: What about charitable fantasy sports (no entry fee)?
A: The opinion only addresses pay-to-play fantasy sports. Free games or contests with no real-money stakes are not "betting" within the statutes anyway.
Q: Could a private fantasy operator still be prosecuted under common-law gaming-house rules?
A: A footnote acknowledges the common-law "public nuisance" of keeping a gaming house (Woods v. Cottrell; State v. Baker; State v. Shelton; State v. Self) but found it not relevant to the question. Those cases involved physical rooms with in-person operators in charge of games. Online fantasy-sports operations do not fit the historical fact pattern.
Q: What about cheating?
A: § 61-10-9 makes cheating during a game a criminal offense. § 46A-6-104 prohibits unfair or deceptive practices. Both apply to all games, lawful or not. The opinion notes them in a footnote.
Q: What are the consequences if a court disagreed with the AG?
A: Operators and participants would face misdemeanor exposure under §§ 61-10-5 and 61-10-11. The rule of lenity might counsel a court toward the AG's narrowing reading. But AG opinions are not binding on courts.
Background and statutory framework
Constitutional baseline. W. Va. Const. art. VI, § 36 prohibits private lotteries. State-run lotteries and state-regulated charitable bingo and raffles are carved out. State ex rel. Mountaineer Park, Inc. v. Polan, 190 W. Va. 276 (1993), syl. pt. 1.
Criminal gaming statutes. W. Va. Code ch. 61, art. 10. Key provisions: § 61-10-5 (betting on games of chance); § 61-10-9 (cheating); § 61-10-10 (poolroom wagers on horse races, prizefights, games of skill or science, sports, contests); § 61-10-11 (private lotteries and raffles using dice or other games of chance); §§ 61-10-11a, -11b ("policies" or "numbers"); § 61-10-14 (criminal-construction provision).
Authorized gaming. State Lottery Act (W. Va. Code ch. 29, art. 22); Racetrack Video Lottery (art. 22a); Limited Video Lottery (art. 22b); Racetrack Table Games (art. 22c); casino gaming limited to state-owned table games (§ 29-25-34); Charitable Bingo Act (ch. 47, art. 20); Charitable Raffle Boards & Games Act (ch. 47, art. 23).
Dominant-factor test in West Virginia. State v. Hudson, 128 W. Va. 655 (1946) (chance predominates even though skill enters); State ex rel. Cities of Charleston (2003) (private lottery is "any scheme or device" determined "predominantly by chance"); Wassick (1972) (pinball with payouts); Greater Huntington Theatre (1949) (commercial raffles); Matthews (1936) (numbers); 64 W. Va. Op. Att'y Gen. No. 8 (1991) (sports betting is skill-predominant under state law); 42 W. Va. Op. Att'y Gen. 206 (1947) (bingo); 43 W. Va. Op. Att'y Gen. 476 (1950) (quiz shows). Dobkin (1992) (video poker is a "game of chance" under § 61-10-5).
Same-words canon. In re Greg H., 208 W. Va. 756 (2000) (quoting Atlantic Cleaners & Dyers, 286 U.S. 427 (1932)).
Black's Law Dictionary. "Game of chance" defined by the "dominating element" test. Mylan Labs. v. Am. Motorists Ins. Co., 226 W. Va. 307 (2010) (Court consults Black's).
Rule of lenity. Dobkin, 188 W. Va. at 213 (criminal statutes ambiguous after careful examination "must be resolved in favor of the defendant and against the state").
Companion-statute canon. Smith v. State Workmen's Comp. Comm'r, 159 W. Va. 108 (1975).
Other states' courts on the predominance test. Roberts v. Commc'ns Inv. Club of Woonsocket, 431 A.2d 1206 (R.I. 1981) (American Rule); 38 Am. Jur. 2d Gambling § 5; many other states.
Fantasy as skill. Humphrey v. Viacom, Inc., No. 06-2768, 2007 WL 1797648 (D.N.J. June 20, 2007). McKinsey study (Sept. 2015) on prize concentration as skill evidence.
S.B. 529 definition. Fantasy game: prizes set in advance; outcomes reflect "relative knowledge and skill" determined "predominantly by accumulated statistical results"; not based on a single team or single performance.
Citations
- W. Va. Code §§ 5-3-1; 61-10-5; 61-10-9; 61-10-10; 61-10-11; 61-10-11a; 61-10-11b; 61-10-14; 46A-6-104
- W. Va. Const. art. VI, § 36
- W. Va. Code ch. 29, arts. 22, 22a, 22b, 22c; § 29-22C-2(b)(5); § 29-22C-3(32); § 29-25-34
- W. Va. Code ch. 47, arts. 20, 23
- W. Va. S. 529 (2016) (committee substitute defining "fantasy game")
- State v. Gaughan, 55 W. Va. 692 (1904)
- State ex rel. Mountaineer Park, Inc. v. Polan, 190 W. Va. 276 (1993)
- State ex rel. Cities of Charleston, Huntington & Cntys. of Ohio & Kanawha v. W. Va. Econ. Dev. Auth., 214 W. Va. 277 (2003)
- State v. Hudson, 128 W. Va. 655 (1946)
- United States v. Dobkin, 188 W. Va. 209 (1992)
- State v. Wassick, 156 W. Va. 128 (1972)
- State v. Greater Huntington Theatre Corp., 133 W. Va. 252 (1949)
- State v. Matthews, 117 W. Va. 97 (1936)
- Smith v. State Workmen's Comp. Comm'r, 159 W. Va. 108 (1975)
- In re Greg H., 208 W. Va. 756 (2000)
- Atlantic Cleaners & Dyers v. United States, 286 U.S. 427 (1932)
- Mylan Labs. Inc. v. Am. Motorists Ins. Co., 226 W. Va. 307 (2010)
- Roberts v. Commc'ns Inv. Club of Woonsocket, 431 A.2d 1206 (R.I. 1981)
- Humphrey v. Viacom, Inc., No. 06-2768, 2007 WL 1797648 (D.N.J. June 20, 2007)
- Woods v. Cottrell, 55 W. Va. 476 (1904); State v. Baker, 69 W. Va. 263 (1911); State v. Shelton, 78 W. Va. 1 (1916); State v. Self, 130 W. Va. 515 (1947) (gaming-house cases)
- 64 W. Va. Op. Att'y Gen. No. 8 (1991); 42 W. Va. Op. Att'y Gen. 206 (1947); 43 W. Va. Op. Att'y Gen. 476 (1950); 45 W. Va. Op. Att'y Gen. 605 (1954); 45 W. Va. Op. Att'y Gen. 166 (1952)
- Out-of-state AG opinions referenced: Kan. AG No. 2015-9 (2015); R.I. AG (Feb. 4, 2016); Mass. AG (Oct. 7, 2015); Nev. AG (Oct. 16, 2015); Tex. AG No. KP-0057 (2016); Ga. AG (Feb. 26, 2016); Miss. AG No. 2015-00445 (Jan. 29, 2016); Tenn. AG No. 16-13 (Apr. 5, 2016); Haw. AG No. 16-1 (Jan. 27, 2016); Ariz. AG No. 198-002 (Jan. 21, 1998); Ill. AG No. 15-006 (Dec. 23, 2015); Fla. AG (1991); N.D. AG L-298 (1994); N.Y. Schneiderman v. DraftKings letter and Sup. Ct. Dec. 11, 2015 papers; Conn. AG (2016 WL 1610641); Md. AG (Jan. 15, 2016)
Source
- Landing page: https://ago.wv.gov/media/17911/download?inline
- Original PDF: https://ago.wv.gov/media/17911/download?inline
Original opinion text
State of West Virginia
Office of the Attorney General
Patrick Morrisey (304) 558-2021
Attorney General Fax (304) 558-0140
July 7, 2016
The Honorable William P. Cole III
President of the Senate
Building 1, Room 229M
1900 Kanawha Boulevard, East
Charleston, WV 25305
Dear President Cole:
You have asked for an Opinion of the Attorney General about whether offering or
participating in certain fantasy sports games is legal in West Virginia. This Opinion is being
issued pursuant to West Virginia Code § 5-3-1, which provides that the Attorney General shall
"render to the president of the Senate . . . a written opinion or advice upon any questions
submitted to the attorney general . . . whenever he or she is requested in writing so to do." To the
extent this Opinion relies on facts, it is based solely upon the factual assertions set forth in your
correspondence with the Office of the Attorney General or upon the sources cited.
Your letter raises the following legal question:
Whether West Virginia prohibits or criminally sanctions the offering of or
participation in fantasy sports games, as defined in Senate Bill 529.
BACKGROUND
Generally speaking, participants in a fantasy sports league "simulate being a sports team
owner or manager."I Participants select a lineup of real athletes from real-world sports leagues—
such as the National Football League, Major League Baseball, the National Basketball
Association, or the National Hockey League—within the limits of either a draft or a fictional
salary cap, and then win points for their fantasy sports teams based on the accumulated statistical
performance by their team of athletes in real-world games.2 A fantasy baseball manager, for
Tex. Op. Att'y Gen. No. KP-0057, 2016 WL 281742 at *1 (2016).
2Ryan B. Frazier, Don't Bet on It: Allowing A Fantasy Sports League May Be Gambling with Legal Trouble, 28
Westlaw J. Ent't Indus. 1, *1-2 (2016).
State Capitol Building 1, Room E-26, 1900 Kanawha Boulevard East, Charleston, WV 25305
The Honorable William P. Cole III
July 7, 2016
Page 2
example, might win points for each of his hitters' hits, home runs, stolen bases, and walks, as
well as points based on his pitchers' earned runs, strikeouts, innings pitched, and saves.3 Because
a fantasy team consists of individual players from many real-world teams, the actual outcomes of
real-world games do not count toward points in fantasy leagues.4
Fantasy sports leagues operate in varying capacities in most states in the nation. Some
leagues are free to play and may or may not award prizes; others charge entrance fees and give
out cash prizes.5 Some last a day; others a season.6 At present, pay-to-play online fantasy sports
games operate in forty states,7 including West Virginia. Ten states currently have no fantasy
sports operations: Alabama, Arizona, Hawaii, Idaho, Iowa, Louisiana, Montana, New York,
Nevada, and Washington.8
Officials and legislatures in several states have addressed the legality of pay-to-play
fantasy sports leagues under state law. Some state attorneys general, such as those in Kansas,
Massachusetts, and Rhode Island, have found pay-to-play fantasy sports leagues to be lawful.
Other state attorneys general, including those in Nevada, New York, and Texas, have found them
to be unlawful. In at least eight states, including Indiana, Tennessee, and Virginia, the
legislatures have passed laws directly authorizing pay-to-play fantasy sports.9
During the last legislative session, one chamber of the West Virginia Legislature took
steps toward clarifying the legality of fantasy sports in our state. By an 18 to 16 vote, the Senate
passed Senate Bill 529, which provides that state law does not criminally prohibit the offering of
or participation in "fantasy games." Committee Substitute, W. Va. S. 529 (2016). A "fantasy
3 See, e.g., Scoring Settings Custom, ESPN, http://games.espn.go.com/flb/resources/help/content?name=scoring-
settings-custom [https://perma.cc/DZM4-QLUY] (listing dozens of potential statistical categories).
4 R.I. Op. Att'y Gen. at *1 (Feb. 4, 2016), http://www.legalsportsreport.com/wp-content/uploads/2016/02/Rhode-
Island-DFS-Opinion.pdf [https://perma.cc/3KAB-EE2S].
5 Nev. Op. Att'y Gen. at 2—4 (Oct. 16, 2015), http://www.legalsportsreport.com/wp-content/uploads/
2015/10/Nevada-AG-DFS.pdf [https://perma.cc/G6HM-ZBC4].
6 Tex. Op. Att'y Gen. No. KP-0057, 2016 WL 281742 at *1 (2016).
7 Chris Grove, What Are The States Where You Can Play Daily Fantasy Sports?, Legal Sports Report,
http://www. legal sportsreport. com/daily-fantasy-sports-blocked-al lowed-states/ [https://perma.cc/8L57-JCH3].
8 1d.
9 Colorado, Indiana, Kansas, Maryland, Mississippi, Missouri, Tennessee, and Virginia have directly authorized
fantasy sports games. Colo. HB 16-1404 (signed into law June 10, 2016) (to be codified at Colo. Rev. Stat. § 12-
15.5-101); Ind. Pub. L. 212 (S. 339) (signed into law Mar. 24, 2016) (to be codified at Ind. Code § 4-33-24); Kan.
Stat. Ann. § 21-6403; Md. Code Ann., Crim. Law § 12-114; Miss. Code. Ann. § 97-33-305; Mo. HB 1941
(approved by Governor June 10, 2016) (to be codified at Mo. Rev. Stat. ch. 313); Fantasy Sports Act, 2016 Tenn.
Laws Pub. Ch. 978 (S.B. 2109); Fantasy Contests Act, Va. S.B. 646 (to be codified at Va. Code tit. 59.1, ch. 51).
The New York legislature has also passed legislation legalizing fantasy sports, which is presently awaiting delivery
to the state's governor for approval. N.Y. S 8153 (passed legislature June 17, 2016).
The Honorable William P. Cole III
July 7, 2016
Page 3
game" is defined as a "fantasy or simulation sports game or educational game or contest" in
which:
(1) The value of all prizes and awards offered to winning participants is
established and made known to the participants in advance of the fantasy game.
(2) All winning outcomes reflect the relative knowledge and skill of participants
and are determined predominantly by accumulated statistical results of the
performance of individuals, including athletes in the case of sporting events.
(3) A winning outcome is not based on the score, point spread or performance of a
single team or combination of such teams, or on any single performance of an
individual athlete or player in .a single event.
Id. The House of Delegates did not vote upon this bill before the legislative session concluded.
Although some fantasy sports games are free to play or offer no prizes, this Opinion
concerns only the legality of fantasy sports games played for money. Your question is limited
specifically to whether West Virginia prohibits or criminally sanctions the offering of or
participation in fantasy sports games, as defined in Senate Bill 529. As noted above, Senate Bill
529 defines fantasy games as those that offer prizes and awards to winning participants.
DISCUSSION
We conclude that West Virginia does not prohibit the offering of or participation in
fantasy sports games, as they are defined in Senate Bill 529. We read state law to prohibit only
betting upon games decided at least predominantly by chance. Fantasy sports games, as defined
in the Senate Bill, are not so decided. Rather, they are determined predominantly by skill,
knowledge, and athletic performance. Because you have not asked, we do not specifically
address whether particular fantasy sports games meet the Senate Bill's definition. But we do note
that fantasy sports games, as we have described them in the background discussion above, are
likely not decided predominantly by chance.
We further conclude that this Opinion is consistent with the decisions of most other state
attorneys general regarding the legality of fantasy sports games. Those state attorneys general
who have found their state laws to prohibit only betting upon games decided predominantly by
chance, as we have determined about West Virginia law, have similarly found pay-to-play
fantasy sports games to be lawful in their states. In contrast, in those states where fantasy sports
games have been found unlawful, the state attorneys general have found state gambling laws to
apply more broadly than in West Virginia, prohibiting betting in many more games than simply
those where chance predominates.
The Honorable William P. Cole III
July 7, 2016
Page 4
I. West Virginia Does Not Prohibit Fantasy Sports Games Played As Defined In
Senate Bill 529.
A. State law prohibits betting on private lotteries and other "games of chance."
Pursuant to a constitutional directive regarding lotteries, the West Virginia Legislature
has prohibited some forms of gaming. Article VI, Section 36 of the West Virginia Constitution
specifically forbids private lotteries.10 Accordingly, there are several provisions of the West
Virginia Code that ban private lotteries and other games of chance."
But the Legislature "has not deemed it necessary to prohibit all forms of gaming." State
v. Gaughan, 55 W. Va. 692, 48 S.E. 210, 212 (1904). Under an express exception to the
constitution's ban on lotteries, the Legislature has enacted laws permitting state-operated
lotteries (which include table games at casinos)12 and state-regulated bingos and raffles by
charitable organizations.13 Moreover, as the Supreme Court of Appeals has observed, "[m]any
games may be played in private places" in West Virginia. Id. By failing to enact further statutory
prohibitions, "[t]he Legislature has, in effect, said that people may indulge in certain games of
amusement, or even bet on them." /d.14
The question, thus, is whether the statutory prohibitions on private lotteries and other
"games of chance" apply to online fantasy sports games.
I° In relevant part, Section 36 of Article VI of the state constitution reads:
The Legislature shall have no power to authorize lotteries . . . and shall pass laws to prohibit the
sale of. lottery . . . tickets . . . except that the Legislature may authorize lotteries which are
regulated, controlled, owned and operated by the State of West Virginia . . . and may authorize
state-regulated bingo games and raffles for the purpose of raising money by charitable . . .
organizations . . . .
W. Va. Const. art. VI, § 36; see also Syl. Pt. 1, State ex rel. Mountaineer Park, Inc. v. Polan, 190 W. Va. 276, 277,
280-81, 438 S.E.2d 308, 309, 312-13 (1993).
11 W. Va. Code § ch. 61, art. 10.
State Lottery Act, W. Va. Code ch. 29, art. 22, State Racetrack Video Lottery Act, W. Va. Code ch. 29, art. 22a,
12
State Limited Video Lottery Act, W. Va. Code ch. 29, art. 22b; West Virginia Lottery Racetrack Table Games Act,
W. Va. Code ch. 29, art. 22c; W. Va. Code St. R. tit. 179. Casino gaming is limited to state-owned lottery table
games. W. Va. Code § 29-25-34. See W. Va. Code ch. 29, art. 25; W. Va. Code St. R. tit. 179, series 4.
Charitable Bingo Act, W. Va. Code ch. 47, art. 20; W. Va. Code St. R. tit.110, series 16; Charitable Raffle Boards
13
& Games Act, W. Va. Code ch. 47, art. 23; W. Va. Code St. R. tit.110, series 37.
14We note that under the common law, it is a criminal "public nuisance" in West Virginia to keep a gaining house.
Woods v. Cottrell, 55 W. Va. 476, 47 S.E. 275, 277 (1904); see also State v. Baker, 69 W. Va. 263, 71 S.E. 186, 187
(1911). But we do not believe this law to be relevant to your question. Convictions for this offense have historically
involved a physical room in which people play games in person, State v. Shelton, 78 W. Va. 1, 88 S.E. 454, 455
(1916), usually with an in-person operator "in charge" of or having "supervision of the game," State v. Self 130 W.
Va. 515, 518, 44 S.E.2d 582, 583 (1947). See also 38 Am. Jur. 2d Gambling § 91.
The Honorable William P. Cole III
July 7, 2016
Page 5
B. The statutory prohibitions on private lotteries and other "games of chance"
apply to any games decided wholly or predominantly by chance.
Several statutes in Article 10 of Chapter 61 of the West Virginia Code prohibit private
lotteries and other games of chance. Specifically, under Section 61-10-11, it is unlawful to play
any private "lottery or raffle" that is won by "using dice, or by any other game of chance."15 And
under Section 61-10-5, it is unlawful to "bet or wage money or other thing of value on any game
of chance."16
For a number of different reasons, we conclude that these statutes are best interpreted to
refer only to games decided wholly or predominantly by chance.
1. We look first to multiple opinions of the Supreme Court of Appeals, as well as
opinions issued by previous West Virginia attorneys general, which suggest that these statutes
prohibit only betting on games decided wholly or predominantly by chance. As we explain
below, these authorities formulated a predominance test in the course of interpreting the state
constitution's prohibition on private lotteries, which test appears to have been extended to the
statutory bans in Sections 61-10-11 and 61-10-5.
In several cases and attorney general opinions, the state constitution's prohibition on
private lotteries has been interpreted to apply to 'any scheme or device, by which a person, for a
consideration, is permitted to receive a prize or nothing, as may be determined predominantly by
chance.' State ex rel. Cities of Charleston, Huntington & its Cntys. of Ohio & Kanawha v. W.
Va. Econ. Dev. Auth., 214 W. Va. 277, 289, 588 S.E.2d 655, 667 (2003) (citing Syl. Pt. 4, State
v. Hudson, 128 W. Va. 655, 656, 37 S.E.2d 553, 554 (1946)). As one previous attorney general
opinion has summarized, "if the dominating element of a game is that of knowledge or skill,
instead of pure chance, a lottery does not exist." 64 W. Va. Op. Att'y Gen. No. 8, 1991 WL
628003, at 1 (Jan. 8, 1991) (citing 45 W. Va. Op. Att'y Gen. 605, 1954 WL 45555, at 1
(1954)). Thus, then-Attorney General Roger Tompkins concluded that sports betting is not a
prohibited game of chance, because "the amount of skill involved . . . places this form of
" In relevant part, Section 61-10-11's prohibition on lotteries and raffles reads:
If any person shall set up . . . a lottery or raffle, for money or other thing of value . . . or knowingly
permit money or other property to be raffled for in such house, or to be won therein, by throwing
or using dice, or by any other game of chance, or knowingly permit the sale in such house of any
chance or ticket, or share of a ticket, in a lottery . . . shall be guilty of a misdemeanor . . . .
W. Va. Code § 61-10-11; see also W. Va. Code § 61-10-10 (prohibiting poolrooms and lottery tickets); id. § 61-
10-11a (prohibiting "lottery policies" or "numbers"); id. § 61-10-1 lb (same).
16 In relevant part, Section 61-10-5 reads:
If any person at any place, public or private, bet or wage money or other thing of value on any
game of chance, or shall knowingly furnish any money or other thing of value to any other person
to bet or wage on any such game, he shall be guilty of a misdemeanor . . . .
W. Va. Code § 61-10-5.
The Honorable William P. Cole III
July 7, 2016
Page 6
gambling outside the parameters of a lottery." 64 W. Va. Op. Att'y Gen. No. 8, 1991 WL
628003, at *5 (Jan. 8, 1991) (opining that the state constitution allows wagers on sports games).
Attorney General Tompkins relied in significant part on the fact that it is lawful in West Virginia
to bet on horse and dog racing,I7 which he also described as turning more on skill than chance.
Id.
This predominance test has been expressly extended by the Supreme Court of Appeals
and previous attorneys general to Section 61-10-11, to determine whether a game constitutes a
prohibited private "lottery or raffle" that is won by "using dice, or by any other game of chance."
W. Va. Code § 61-10-11. This statute has been interpreted to apply to games with elements of
"consideration, prize and chance," but only where "chance predominates, even though skill or
judgment may enter to some extent." State v. Hudson, 128 W. Va. 655, 664-65, 37 S.E.2d 553,
558 (1946). In that circumstance, a game is "not a game of skill, but a game of chance and as
such, . . . a lottery" prohibited by Section 61-10-11. 42 W. Va. Op. Att'y Gen. 206, 1947 WL
30406, at *2 (1947). Section 61-10-11 has thus been held to criminalize all manner of privately
operated games that are decided wholly or predominantly by chance-including punchboards,
numbers rackets, giveaway raffles, bingo, and even pinball machines. I8 And conversely, the
statute has been held not to apply to privately run quiz shows with questions that are "within the
capacity of the general public," because "the element of chance could not be said to
predominate."19
The same predominance test appears also to have been applied by the Supreme Court of
Appeals to Section 61-10-5, which makes it unlawful to "bet or wage money or other thing of
value on any game of chance." W. Va. Code § 61-10-5. In United States v. Dobkin, the court was
asked by certified question whether video poker violated Section 61-10-5. 188 W. Va. 209, 211,
423 S.E.2d 612, 614 (1992). It answered that "although there is some element of skill involved,
poker or any electronic simulation thereof, is a game of chance" prohibited by Section 61-10-5.
Id. The court's emphasis that poker involves merely "some" element of skill tracks the court's
language in previous cases applying the predominance test. Id (emphasis added); Cf. Hudson,
128 W. Va. at 664-65, 37 S.E.2d at 558 (prohibited games of chance for purposes of Section 61-
10-11 are those where "chance predominates, even though skill or judgment may enter to some
extent" (emphasis added)).2° Although the court did not expressly apply the predominance test to
17 See W. Va. Code ch. 19, art. 23 & 24; W. Va. Code St. R. tit. 178.
18 State v. Wassick, 156 W.Va. 128, 136, 191 S.E.2d 283, 288 (1972) (pinball machines
with payouts); Syl. Pt. 4,
State v. Greater Huntington Theatre Corp., 133 W.Va. 252, 253, 55 S.E.2d 681, 682-83 (1949) (commercial
raffles); State v. Hudson, 128 W. Va. 655, 666, 37 S.E.2d 553, 559 (1946) (punchboards); State v. Matthews, 117 W.
Va. 97, 184 S.E. 665, 665 (1936) (numbers rackets); 42 W. Va. Op. Att'y Gen. 206 (1947) (bingo).
1843 W. Va. Op. Att'y Gen. 476, 1950 WL 42538, at 3 (1950); see also 45 W. Va. Op. Att'y Gen. 166, 1952 WL
47166, at 1 (1952) (finding a radio program that offered a prize for correctly identifying a "mystery melody" did
not violate the lottery law).
20 Since Dobkin, the Legislature has expressly recognized that casino table games, including poker, are games in
which the outcome is predominantly determined by chance. See W. Va. Code §§ 29-22C-2(b)(5), 29-22C-3(32)
(listing "poker" as a "West Virginia Lottery table game" that is "determined predominantly by chance").
The Honorable William P. Cole III
July 7, 2016
Page 7
ntly.
the phrase "game of chance,"2I it would make little sense to read the case differe
t
Longstanding principles of statutory interpretation instruct that "identical words used in differen
H, 208 W. Va. 756,
parts of the same act are intended to have the same meaning." In re Greg
286
761, 542 S.E.2d 919, 924 (2000) (quoting Atlantic Cleaners & Dyers, Inc. v. United States,
U.S. 427, 433 (1932)).
2. Our second reason for applying the predominance test is Section 61-10-10, another
d] to
part of the West Virginia gaming statutes in Article 10 of Chapter 61. As a statute "relate[
ture's
the same subject matter," it "should be read and applied together so that the Legisla
v. State
intention can be gathered from the whole of the enactments." Syl. Pt. 3, Smith
Workmen's Comp. Comm 'r, 159 W. Va. 108, 109, 219 S.E.2d 361, 362 (1975).
We know from Section 61-10-10 that a "game of chance" is not simply any game that
And it
involves any element of chance. Section 61-10-10 concerns "poolroom-style" wagers.22
ht, . . .
bars such wagers not only on "games of chance," but also on "any horse race, prizefig
W. Va. Code § 61-10-
game of skill or science, or other sport or contest all manner of activities."
"games
10. This means that "games of chance" must be interpreted in a way that leaves room for
of skill" and "games of sport," even though the latter plainly involve some element of chance.
Though the predominance test is not compelled by Section 61-10-10, it is consistent with
that statutory provision.
3. The third reason for applying the predominance test is that the majority of courts
as a
across the country share West Virginia's definition of a lottery or other game of chance
of
game wholly or predominantly decided by chance.23 In Roberts v. Commc 'ns Inv. Club
ed "by chance" or
21
The court was asked whether its answer would change if the video poker results were determin
"predominantly by chance," but it did not speak to that question.
22 In relevant part, Section 61-10-10 defines "poolroom" to mean:
g to
any room where any pool ticket, chance voucher or certificate is sold entitling or purportin
nt upon the
entitle the holder or promisee thereof . . . to money or other thing of value, continge
or other sport or
result of any horse race, prizefight, game of chance, game of skill or science,
contest.
W. Va. Code § 61-10-10.
predominates in the
23
E.g., Johnson v. Phinney, 218 F.2d 303, 306 (5th Cir. 1955) ("[I]f [chance] is present and
varying degrees of skill is immateri al; and the game or
determination of a winner, the fact that players may exercise
Gov'r of the State of Delawar e, 435 F. Supp. 1372, 1385 (D. Del.
device is a lottery"); Nat'l Football League v.
to encompa ss not only games of pure chance but also games in which chance
1977) ("lottery' should be interpreted
2001) ("[E]ven if skill is
is the dominant determining factor"); Opinion Of The Justices, 795 So. 2d 630, 641 (Ala.
Morrow v. State, 511
present, it is the question whether chance dominates that determines whether a lottery exists."); ng
or chance dependin g on the dominati
P.2d 127, 129 (Alaska 1973) ("[A] game should be classified as one of skill
Hotel Employe es & Rest. Employe es Int '1
element, not on the presence or absence of a small element of skill.");
981 P.2d 990, 996 (1999) ("Chance ' means that winning
Union v. Davis, 21 Ca1.4th 585, 592, 88 Cal.Rptr.2d 56,
skill."); Commonwealth v.
and losing depend on luck and fortune rather than, or at least more than, judgment and
923, 925 (1944) ("[B]y the weight of authority a game is now considered a
Lake, 317 Mass. 264, 267, 57 N.E.2d
Pub. Co., 341 Mo. 862,
lottery if the element of chance predominates"); State ex Inf. McKittrick v. Globe—Democrat
The Honorable William P. Cole III
July 7, 2016
Page 8
Woonsocket, for example, the Supreme Court of Rhode Island held that "[i]n deciding whether
the element of chance is present, we adopt, as have most jurisdictions which have faced this
issue, the 'dominant factor' doctrine, under which a scheme constitutes a lottery when an
element of chance dominates the distribution of prizes, even though such a distribution is
affected to some degree by the exercise of skill or judgment." 431 A.2d 1206, 1211 (R.I. 1981).
Indeed, this definition is known as the American Rule. 38 Am. Jur. 2d Gambling § 5; see also
State v. Coats, 74 P.2d 1102, 1108 (Or. 1938) (Kelly, J., specially concurring) (same).24
This majority understanding of the term "game of chance" comports with the definition
that phrase is given in Black's Law Dictionary, a source that the Supreme Court of Appeals
consults for the interpretation of state law. E.g., Mylan Labs. Inc. v. Am. Motorists Ins. Co., 226
W. Va. 307, 317 & n. 17, 700 S.E.2d 518, 528 & n. 17 (2010). According to the entry for "game
of chance," "the test of the character of the game is not whether it contains an element of chance
or an element of skill, but which of these is the dominating element that determines the result of
the game." Game, Black's Law Dictionary (10th ed. 2014). (quoting 38 Am. Jur. 2d Gambling §
4, at 109-10 (1968)).
4. Finally, were there any question, we believe the rule of lenity would militate in favor
of construing our state's statutes to apply only to games where chance predominates, as that
would be a narrowing construction that favors defendants. In United States v. Dobkin, the
Supreme Court of Appeals held that if a criminal gaming statute is ambiguous after a careful
examination of the statute's text, context, and prior precedent, "every reason" would exist "to
invoke the time-honored maxim that criminal laws will always be construed most strongly in
favor of the defendant and the corollary that any ambiguity in a criminal statute must be resolved
in favor of the defendant and against the state." 188 W. Va. 209, 213, 423 S.E.2d 612, 616
(1992). This holding superseded past cases in which the court liberally construed gaming statutes
as remedial. E.g., State v. Wassick, 156 W. Va. 128, 133-34, 191 S.E.2d 283, 287 (1972); see W.
Va. Code § 61-10-14.
875, 110 S.W.2d 705, 713 (1937) ("[A] contest may be a lottery even though skill, judgment, or research enter
therein to in some degree, if chance in a larger degree determine the result."); Hoff v. Daily Graphic, Inc., 132 Misc.
597, 600, 230 N.Y.S. 360, 363 (1928) ("The test of the character of the game is not whether it contains an element
of chance or an element of skill, but which is the dominating element that determines the result of the game."); State
v. Stroupe, 238 N.C. 34, 37, 76 S.E.2d 313, 316 (1953) ("[A] game of chance is one in which the element of chance
predominates over the element of skill."); Stevens v. Cincinnati Times-Star Co., 72 Ohio St. 112, 148, 73 N.E. 1058,
1061 (1905) ("[I]f the dominating, determining element is one of chance, that element gives character to the whole
scheme."). Commonwealth v. Laniewski, 173 Pa. Super. 245, 250, 98 A.2d 215 (1953) ("It is sufficient that chance
be the dominant factor."); Seattle Times Co. v. Tielsch, 80 Wash.2d 502, 507, 495 P.2d 1366, 1369 (1972) ("Chance
within the lottery statute is one which dominates over skill or judgment."); State v. Dahlk, I 1 1 Wis.2d 287, 296, 330
N.W.2d 611, 617 (1983) ("[C]hance rather than skill must therefore be the dominant factor controlling the award in
a lottery."); 135 A.L.R. 104 (1941) (more cases).
24
As we discuss further below, some of the states in this majority have adopted a prohibition on gaming in addition
to bans on lotteries or games of chance, and it is those additional (and broader) prohibitions that have led their
attorneys general to find fantasy sports games to be unlawful. See infra Pt. II.B. But that is not true in West Virginia,
as noted above. Nor is it the case in states like Rhode Island, where the attorney general has applied the
predominance test to find fantasy sports games lawful. See infra Pt. II.A.
The Honorable William P. Cole III
July 7, 2016
Page 9
C. Fantasy sports games, as defined in Senate Bill 529, are not wholly or
predominantly decided by chance.
In light of our conclusions above, we believe a court would find that fantasy sports
games, as defined in Senate Bill 529, are not prohibited under West Virginia law. A fantasy
sports game is defined in Senate Bill 529 as one in which 101 winning outcomes reflect the
relative knowledge and skill of participants and are determined predominantly by accumulated
statistical results of the performance of individuals, including athletes in the case of sporting
events." As the Kansas attorney general concluded when faced with identical language, that
statutory definition "specifically incorporates the dominant factor test." Kan. Op. Att'y Gen. No.
2015-9, 2015 WL 1923114, at *3 (Apr. 24, 2015) (discussing Kan. HB 2155, codified at Kan.
Stat. § 21-6403). In other words, the definition in Senate Bill 529 describes a game in which
chance does not predominate and, therefore, a game that is not an unlawful game of chance
under West Virginia law.
But you have not asked, and we do not answer, whether a court would find that a
particular fantasy sports game falls within the definition in Senate Bill 529. The answer to that
question would turn on the specific rules of a particular fantasy sports game, and possibly other
factual information that you have not provided.
Nevertheless, we do note that fantasy sports games, as we have described them in the
background discussion above, are likely not decided predominantly by chance. As we explained
above, participants in a fantasy sports league "simulate being a sports team owner or manager."25
Participants select a lineup of real athletes from sports leagues within the limits of either a draft
or a fictional salary cap, and then win points for their fantasy sports teams based on the
accumulated statistical performance by their team of athletes in real-world games.
In these fantasy sports games, outcomes are influenced by the skill of the real-world
athletes and other knowable information. Outcomes are based on points calculated from the
performance of the athletes. And those performances result from some combination of skill
(which can be somewhat discerned from past performances), other knowable factors (such as
venue, the opposing team, weather), and chance. As a previous West Virginia attorney general
has said, sports performances are "in part determined by the skill of the participants" as well as
"a variety of other factors that are controlled to some degree by the players." 64 W. Va. Op.
Att'y Gen. No. 8, 1991 WL 628003, at *4 (Jan. 8, 1991).
Fantasy players have access to and can make predictions based on this knowable
information. For example, in daily fantasy sports leagues, the salary cap method of drafting
players "introduces economic analysis and requires players to strategize how to value players
and allocate their roster funds."26 Numerous factors can come into play, including specific
match-ups between players and teams at particular venues, hour-to-hour weather conditions, and
25 Tex. Op. Att'y Gen. No. KP-0057, 2016 WL 281742 at *1 (2016).
26Nathaniel J. Ehrman, Out of Bounds? A Legal Analysis of Pay-to-Play Daily Fantasy Sports, 22 Sports Law J. 79,
87 (2015)
The Honorable William P. Cole III
July 7, 2016
Page 10
athletes' day-to-day injuries.27 Participants can and do frequently consult "information, metrics
and data about particular games and players,"28 spending in 2012 as much as "$1.6 billion on
extra fantasy items like fantasy magazines, draft kits, online services, and premium television
channels."29
And that sort of analysis is, in our view, best described as skill. As one professor has
noted, playing fantasy sports is not like playing poker in a casino: you are not "just accepting the
cards that you are dealt"—instead, you "pick your cards."3° While poker players can bluff and
strategically choose their bets, they have no control over cards they are given to make up their
hands. But in the fantasy sports games we have described, the participants exercise significant
control over their teams. Thus, one federal district court judge has concluded that the "success of
a fantasy sports team depends on the participants' skill in selecting players for his or her team,
trading players over the course of the season, adding and dropping players during the course of
the season and deciding who among his or her players will start and which players will be placed
on the bench." Humphrey v. Viacom, Inc., No. 06-2768 DMC, 2007 WL 1797648, at *2 (D.N.J.
June 20, 2007).
Indeed, at least one publicly available study shows that there are "better" and "worse"
fantasy players. A study by McKinsey & Company Consulting suggests that amateurs often are
unable to compete with experienced fantasy managers in daily fantasy games, findin in one
sample that 91 percent of the prizes were won by just 1.3 percent of repeat players.3 As the
study notes, "[fjinding underpriced players among 800 active MLB options can be
overwhelming to the novice," but professional players can identify the best options in real time
using sophisticated computer models.32
We thus echo a previous attorney general, who opined that betting on sports is not
something predominantly determined by chance, but rather by skill. He wrote:
Those who bet on sports, just as those who bet on horse and dog racing, usually
take into consideration past records, who has the home field advantage, and a
myriad of other factors that may influence the outcome of the event. Just as horses
27 Jeffrey C. Meehan, The Predominate Goliath: Why Pay-to-Play Daily Fantasy Sports Are Games of Skill Under
the Dominant Factor Test, 26 Marq. Sports L. Rev. 5, 29-31 (2015).
28
Frazier, supra note 2 at *1.
29 Ehrman, supra note 26, at *82.
30 Skill Or Chance? Question Looms Over Fantasy Sports Industry, NPR (Nov. 25, 2015)
http://www.npr.org/2015/11/25/457279313/skill-or-chance-que stion-looms-over-fantasy-sports -industry
[https://perma.cc/TP6U-VNUJ] (quoting San Diego State University lawyer and professor Dan Eaton).
31 Ed Miller & Daniel Singer, For daily fantasy-sports operators, the curse of too much skill, McKinsey & Co.
(Sept. 2015), http://www.mckinsey.corn/industries/media-and-entertainment/our-insights/for-daily-fantasy-sports-
operators-the-curse-of-too-much-skill [https://perma.cc/64T3-VAUA].
32
1d.
The Honorable William P. Cole III
July 7, 2016
Page 11
and dogs have trainers who are employed to enhance the animals' performance, a
sports team or a sports participant has a coach who is given the task of increasing
the team's or participant's chances of winning. Furthermore, statistics and other
materials pertinent to sporting events are readily available for those who wish to
study them and then place an informed bet using reason and judgment. The person
making the bet is utilizing his knowledge about the sporting activity in order to
enhance his chances of winning. This is the employment of skill.
64 W. Va. Op. Att'y Gen. No. 8, 1991 WL 628003, at *4 (Jan. 8, 1991). Betting on fantasy
sports games, at least as we have described the games in the background discussion above,
appears to be similar.
II. This Opinion Is Consistent With The Opinions Of State Attorneys General That
Have Addressed The Legality Of Fantasy Sports Games.
Although a number of state attorneys general have addressed the legality of fantasy sports
games in their own states and reached different conclusions, the opinions (including this one) fall
almost entirely into two broad categories. The first category includes those who have concluded
that their state law only prohibits wagering on games in which chance predominantly decides the
outcome (as we have found), and have in turn concluded that pay-to-play fantasy sports games
are lawful. The second category includes those who have found fantasy sports leagues to be
unlawful because, in contrast to the first category, their state laws either: (1) expressly prohibit
betting on games of skill or sport, or (2) prohibit wagers on games where chance plays even a
subordinate factor in the outcome.33
A. Attorneys general who have found that their state law only bans betting on
games decided predominantly by chance have also found fantasy sports
leagues to be lawful.
In states where an attorney general has found that state law prohibits only betting on
games decided predominantly by chance, the attorney general has also found fantasy sports
games to be lawful. In Rhode Island, for example, the attorney general has opined that the
predominance standard under state law "is an especially high burden," and that daily fantasy
sports are lawful because they involve a mixture of chance and skill that does not clear that
threshold. R.I. Op. Att'y Gen. at 2 (Feb. 4, 2016), supra n.4 (citing R.I. Gen. Laws § 11-19-1;
In re Advisory Opinion to Governor, 856 A.2d 320, 328 (R.I. 2004)). In Kansas, the attorney
general has similarly determined that fantasy sports leagues are lawful "games of skill" under the
predominance standard so long as "all winning outcomes reflect the relative knowledge and skill
of the participants and are determined predominantly by accumulated statistical results of the
performance of individual athletes in multiple real-world sporting events." Kan. Op. Att'y Gen.
No. 2015-9, 2015 WL 1923114, at 2 (Apr. 24, 2015) (citing Kan. HB 2155, codified at Kan.
33 In a few states, the attorneys general have merely noted uncertainty but have not opined specifically on whether
fantasy sports games are legal, or could be legalized, in their states. E.g., Conn. Op. Att'y Gen., 2016 WL 1610641,
at *1 (Apr. 18, 2016). Md. Op. Att'y Gen. at 18 (Jan. 15, 2016), available at http://www.legalsportsreport.com/wp-
content/uploads/2016/01/M il ler-01-15-16.pdf [https://perma.cc/G4KY-Q9GV].
The Honorable William P. Cole III
July 7, 2016
Page 12
Stat. § 21-6403). And finally, the Massachusetts attorney general has also opined that fantasy
sports leagues are legal in that state under a predominance standard.34
B. Attorneys general who have found fantasy sports leagues to be unlawful have
found that their state laws ban betting on many more games than simply
those where chance predominates.
In contrast, the state-law prohibitions on gaming are farther-reaching in states where
attorneys general have found fantasy sports games to be unlawful.
In many of these states, the laws prohibit betting on any game with any element of
chance. For example, the Georgia attorney general has found fantasy sports to be unlawful
because state law prohibits betting on "any game or contest," Ga. Code Ann. §16-12-21, which
includes any "agreement that, dependent upon chance even though accompanied by some skill,
one stands to win or lose something of value," id. § 16-12-20. See Ga. Op. Att'y Gen. (Feb. 26,
2016), http://www. legal sportsreport.com/wp-content/uploads/2016/03/advice-to-kim_201602261
01748.pdf [https://perma.cc/BZW9-LCBT]. Similarly, in Mississippi, the attorney general found
fantasy sports leagues to be illegal under a state law that prohibited all wagers on "any game,
play, amusement . . . or upon the result of any . . . event or contingency whatever," including
"the outcome of any athletic event" as well as "any matter to be determined during an athletic
event," Miss. Code Ann. §§ 75-76-33(3)(a), 97-33-1. Miss. Op. Att'y Gen., No. 2015-00445,
2016 WL 695680, at 1—4 (Jan. 29, 2016). That law has since been amended. See supra note 9.
In Tennessee, the attorney general found fantasy sports leagues unlawful under a since-amended
state law that prohibited "risking anything of value for a profit whose return is to any degree
contingent on chance." Tenn. Code Ann. § 39-17-501(1); Tenn. Op. Att'y Gen. No. 16-13, 2016
WL 1533277, at *2 (Apr. 5, 2016). Fantasy sports games played for money have been found
unlawful by the attorneys general in Alabama35 and Idaho36 under similar standards.
In other states, the laws prohibit betting on games where chance plays more than a
nominal role but need not be a predominant factor in the outcome. In New York, for example,
the attorney general found fantasy sports unlawful because state law prohibits risking anything of
value on any game in which "the outcome depends in a material degree upon an element of
34 Steve Anmer, Maura Healey says DraftKings operation is legal (Oct. 7, 2015), http://www.bostonglobe.com/
metro/2015110/07/healey-says-draftkings-operation-legal-but-she-concerned-about-insider-
trading/00gcbQF3c6JuvFz2SCHHfO/story.html?event=event25?event=event25 [https://perma.cc/F6BC-BAAB];
see Mass. Gen. Laws ch. 271, § 7 (prohibiting private lotteries); Com. v. Lake, 317 Mass. 264, 267 (Mass. 1944) (A
"game is ... considered a lottery if the element of chance predominates.").
35 Attorney General Determines Paid Daily Fantasy Sports Contests Are Illegal Gambling (Apr. 5, 2016)
http://www. ago. state. al . us/News-810#sthash. DU64TkL3 .dpuf [https://perma.cc/76BY-U9JG] (It is "illegal
gambling if a person stakes something of value on a contest of chance, even when skill is involved.").
36 Attorney General Reaches Agreement to Terminate Paid Daily Fantasy Sports Contests in Idaho (May 2, 2016),
http://www.ag.idaho.gov/media/newsReleases/2016/nr_05022016.html [https://perma.cc/M9W9-K8XQ] (Gambling
is "risking money or other thing of value for gain that is contingent in whole or part upon chance or the outcome of
an event, including a sporting event.").
The Honorable William P. Cole III
July 7, 2016
Page 13
chance, notwithstanding the skill of the contestants may also be a factor therein." N.Y. Penal
Law § 225.00 [1] (emphasis added).37 Daily fantasy sports games are unlawful under this statute
because they depend "substantially on chance and factors not within the [fantasy sports game]
player's control, including whether the athletes chosen are injured, or the game is 'rained out.'"
State ex rel. Schneiderman v. Draftkings, Inc., No. 453054/2015, at 6-7 (N.Y. Sup. Ct. Dec.
11, 2015), https://www.nycourts.gov/press/Draftkings%20Inc%20and%20Fanduel%20Inc.pdf
[https://perma.cc/8QTU-3HFY]. In Hawaii, the attorney general found fantasy sports games to
be unlawful "contests of chance" for the same reason: state law prohibits wagering on any game
"in which the outcome depends in a material degree upon an element of chance, notwithstanding
that skill of the contestants may also be a factor therein," Haw. Rev. Stat. § 712-1220 (emphasis
added). Haw. Op. Att'y Gen., 16-1, 2016 WL 609722, at 1 (Jan. 27, 2016). And in Texas, the
attorney general pointed to a state law that prohibits wagering on a game involving at least "a
partial chance." Tex. Op. Att'y Gen. No. KP-0057, 2016 WL 281742 at 2-*4 (2016) (emphasis
added).
In a third and final group of states, fantasy sports games have been found unlawful
because state law has been extended to prohibit wagers on any games of skill or sport. For
example, the Arizona attorney general found fantasy sports unlawful because Arizona law
prohibits wagers not only on games of chance, but also on games of skill and on sporting events.
Ariz. Op. Att'y Gen. No. 198-002, 1998 WL 48550, at 1—4 (Jan. 21, 1998) (citing Ariz. Rev.
Stat. §§ 13-3302, 13-3305). Likewise, the Illinois attorney general found fantasy sports unlawful
because that state's law broadly "prohibits the playing of either 'games of chance or skill for
money." Ill. Op. Att'y Gen., No. 15-006, 2015 WL 9694249, at 3—4 (Dec. 23, 2015) (quoting
720 Il. Comp. Stat. Ann. 5/28-1). So, too, the Florida attorney general explained that state law
prohibits betting on games of skill, making fantasy sports illegal. 1991 Fla. Op. Att'y Gen. 6,
1991 WL 528146, at 1—3 (Fla. Stat. Ann. § 849.14); see also 1994 N.D. Op. Att'y Gen. L-298,
1994 WL 16004820 (1994) (finding fantasy sports unlawful because state law prohibits "risking
any money . . . for gain, contingent, wholly or partially, upon . . . the . . . outcome of [a] sporting
event, over which the person taking the risk has no control") (quoting N.D. Cent. Code § 12.1-
28-01); Scott Malone, Fantasy sports illegal in Vermont, attorney general 's office says
(Jan. 15, 2016), http://www.reuters.com/article/us-fantasysports-vermont-idUSKCNOUT2EN
[https://perma.cc/86MG-E9BV] ("Vermont law bans wagering on both games of chance and of
skill.").
C. Nevada is the sole outlier.
The lone exception to the consistent results among state attorneys general is the opinion
of the Nevada attorney general, which suggests that the legality of a fantasy sports league can
only be decided in court on "a case-by-case basis." Nev. Op. Att'y Gen. at *16 (Oct. 16, 2015).
Though he concluded that state law prohibits only betting on games predominantly decided by
chance, see Nevada Const. art. IV, § 24, the attorney general determined that he could not offer
any broad conclusions about the legality of fantasy sports. The law could only be applied on an
37 Ltr. To DraftKings, Inc. from Eric T. Schneiderman (Nov. 10, 2015), https://assets.documentcloud.org/
documents/2511147/final-nyag-draftkings-letter-11-10-2015.pdf.
The Honorable William P. Cole III
July 7, 2016
Page 14
individual case-by-case basis, he explained, depending on what a particular fantasy player
actually did in playing a specific game on a specific occasion. Id. According to the attorney
general, a court would have to determine whether a fantasy player actually used skill in playing a
game, or whether he or she simply accepted "a random slate of players." Id.
While we have declined to answer whether particular games are lawful, we do not believe
the Nevada attorney general's case-by-case approach is correct. It is too narrow and
particularized. The lawfulness of fantasy sports games can certainly be determined on a game-
by-game basis, without having to examine how an individual participant or group of participants
played in a specific case. As explained by the entry in Black's Law Dictionary for the term
"game of chance," it is 'the character of the game, and not the skill or want of skill of the
[individual] player,' which determines whether a game is one of chance or skill." Game, Black's
Law Dictionary (10th ed. 2014) (quoting 38 Am. Jur. 2d Gambling § 4, at 109-10 (1968)). How
a particular individual plays the game does not change whether the game, as a whole, is one of
chance or skill. "[G]ames of chance do not cease to be such merely because they call for the
exercise of skill by the players, nor do games of skill cease to be so because at times . . . their
result is determined by some unforeseen accident, usually called 'luck."' Id. The question is
whether a game or type of game generally turns on the predominance of chance or skill.
CONCLUSION
In sum, we conclude that West Virginia law does not prohibit the offering of or
participation in fantasy sports games, as they are defined in Senate Bill 529, because state law
prohibits only betting upon games decided predominantly by chance.38 This Opinion is based on
what we believe to be the best reading of current state law, and is consistent with the decisions of
most other state attorneys general regarding the legality of fantasy sports games. As with any
novel question of law, though, the best course of action may be for the Legislature to pass a law
that speaks directly to the lawfulness of fantasy sports games.
Sincerely,
PeltaL-Wr
Patrick Morrisey
Attorney General
Elbert Lin
Solicitor General
Julie Marie Blake
Assistant Attorney General
38
Of course, all games played in West Virginia—whether legal or illegal—are subject to important consumer
protection laws. It is a criminal offense to cheat or defraud anyone during a game, W. Va. Code § 61-10-9, and
it is
unlawful to engage in unfair or deceptive practices, id. § 46A-6-104.