Is PrizePicks' single-player daily fantasy sports game illegal under West Virginia's sports wagering law, or does the statute's exclusion for 'Daily Fantasy Sports' protect it?

Plain-English summary

Speaker Hanshaw asked the AG whether PrizePicks' "Arena"-branded single-player daily fantasy sports product is legal in West Virginia. PrizePicks had stopped offering the single-player game in 2022 after a Lottery Commission cease-and-desist letter, then relaunched the multiplayer "Arena" version in January 2024 and argued the original single-player format also complied with West Virginia law.

The AG's analysis comes in three pieces.

First, the single-player game looks like sports wagering. West Virginia Code § 29-22D-3 defines sports wagering as "accepting wagers on . . . the individual performance statistics of athletes in a sporting event . . . by any system or method of wagering approved by the commission" and includes parlays and over-unders. The AG said PrizePicks' "Flex Play" and "Power Play" mechanics, where users pick "more" or "less" on multiple players' stat lines for a payout multiplier, are functionally parlays of player over-unders. Substituting "entry fee" for wager and "more/less" for over/under does not change the substance.

Second, the statute carves out "Daily Fantasy Sports (DFS)" from sports wagering but does not define DFS. The Lottery Commission's rule at W. Va. Code St. R. § 179-9-2.8 supplies a four-element definition: peer competition, prizes known in advance, outcomes determined by skill and statistical performance, and outcomes not based on a single team or single performance. Under that rule, the single-player game is not DFS (no peer competition; payouts hinge on single-player performance). But the AG questioned whether the Lottery Commission had statutory authority to define a term the Legislature used as an exclusion. After Loper Bright v. Raimondo (2024) overruled Chevron, agency interpretations get less deference; West Virginia's Supreme Court of Appeals had not yet decided how the post-Loper Bright world looks for state agencies. The AG flagged the rule's enforceability as "questionable."

Third, the private-lottery prohibition at W. Va. Code §§ 61-10-1 to -14 forbids "games of chance" played for money. The AG could not say whether PrizePicks' single-player game is predominantly skill or chance because the office did not have expert reports, raw data, or the benefit of an adversarial process (Taylor v. Illinois, 1988; Daubert, 1993). Other jurisdictions split on this question (Dew-Becker v. Wu, Ill. 2020). So the games-of-chance question stays open.

Conclusion: the AG could not say the single-player game violates § 29-22D-20(a), because the DFS exclusion is undefined and only the Legislature can fix it. The AG also could not say the game violates the private-lottery statutes without an evidentiary record. The opinion ends as a clear nudge to the Legislature: define DFS.

What this means for you

If you are a daily fantasy sports operator

This opinion does not give you a clean light to operate single-player formats in West Virginia. It says the Legislature has left ambiguity, but it also says single-player parlay-style products meet the statutory definition of sports wagering before the DFS exclusion is even considered. Practical takeaways:

Map your product against the four-element regulatory definition in § 179-9-2.8. Peer competition is the most important element you may be missing in single-player formats. Even if you challenge the rule's validity post-Loper Bright, building toward the regulatory definition reduces enforcement risk while litigation plays out.

Document any data you have on skill predominance. The AG was explicit that without expert reports, raw data, and adversarial testing, the office could not reach the chance-versus-skill question. If a Lottery Commission action later goes to court, that record will matter.

Watch the Legislature. The opinion is a direct invitation for legislative action. A 2026 or 2027 session may settle the DFS definition one way or the other.

If you are a sports-betting operator already licensed under § 29-22D-6

The opinion is broadly favorable to your position that DFS-branded single-player products are competing with you in regulatory gray space. If you want to press for definition, this opinion gives you a clean argumentative anchor.

If you are a West Virginia legislator

This opinion is asking you to act. The Legislature created an exclusion for "Daily Fantasy Sports" without defining the term. The AG's office can read both the existing 2016 opinion (analyzing a bill that never passed) and the Lottery Commission's rule, but neither resolves the gap. Until the Legislature defines DFS, both operators and the Lottery Commission are operating on partial information.

A few definitional choices the Legislature may want to consider. Should DFS require peer competition (excluding house-banked products like PrizePicks' single-player game)? Should it require winning outcomes to depend on multiple players' aggregated performance, not single-player results? Should it require fixed prizes set by entries, not house odds? Each of these moves the line.

If you are a Lottery Commission lawyer or commissioner

The AG's questioning of § 179-9-2.8's enforceability is a real risk. The argument is that defining a term used as a statutory exclusion expands the Commission's regulatory reach beyond what § 29-22D-4 grants. After Loper Bright, agencies cannot rely on Chevron deference, and West Virginia's analog is in flux. If the Commission needs to act against an unlicensed operator, plan for a challenge to the rule itself.

A practical fallback: bring an enforcement action under the games-of-chance statutes (§§ 61-10-1 to -14) instead of, or in addition to, § 29-22D-20(a). That removes the DFS-definition question and turns the case into a chance-versus-skill record fight.

If you are a West Virginia consumer using a single-player DFS app

The legality is unsettled. The AG could not say whether the product is illegal, but it also could not say it is legal. If you care about the regulatory status, monitor for Legislature action and Lottery Commission enforcement steps in the months ahead.

If you are a gaming-compliance attorney advising clients

This opinion is a useful citation for the proposition that West Virginia's DFS definitional gap is a legislative problem, not an agency one. It also previews the kind of evidentiary record courts will want for a chance-versus-skill determination: expert testimony, raw outcomes data, and adversarial Daubert-style scrutiny.

Common questions

Q: Is PrizePicks legal in West Virginia?
A: The AG could not say. The single-player game meets the definition of "sports wagering" but the DFS exclusion may apply, and the Legislature has not defined DFS. The Lottery Commission's regulatory definition is of questionable validity after Loper Bright.

Q: What's the difference between single-player and multiplayer DFS?
A: In multiplayer DFS, participants compete against each other for prizes from the pool. In single-player DFS, participants effectively compete against the operator (often called "house-banked"), with payouts determined by odds the operator sets, not by ranking against other players. The Lottery Commission's regulatory definition of DFS requires peer competition, which single-player formats lack.

Q: Can the Lottery Commission shut PrizePicks down?
A: The Commission can issue cease-and-desist letters, as it did in 2022, but enforcing one in court runs into both the DFS-exclusion ambiguity and the post-Loper Bright regulatory-definition challenge. Stronger ground may exist under the games-of-chance statutes if the Commission can build the right evidentiary record.

Q: Is daily fantasy sports a "game of chance" under West Virginia law?
A: Unclear. West Virginia bars private wagering on games of chance under W. Va. Code §§ 61-10-5 and 61-10-11, but the predominance test (skill versus chance) is fact-intensive and depends on the specific game. Dew-Becker v. Wu (Ill. 2020) held head-to-head DFS is predominantly skill; the dissent disagreed. The AG declined to answer without an evidentiary record.

Q: Why did the AG cite the 2016 fantasy sports opinion?
A: To distinguish it. The 2016 opinion analyzed Senate Bill 529's definitions, which the Legislature never enacted. So the 2016 opinion's DFS-related analysis has no statutory foundation. The Lottery Commission's 2022 cease-and-desist letter relied heavily on that 2016 opinion, which the AG calls "legally dubious."

Q: What does Loper Bright have to do with this?
A: Loper Bright Enter. v. Raimondo (U.S. 2024) overruled Chevron and ended automatic deference to federal agencies' reasonable interpretations of ambiguous statutes. West Virginia's Supreme Court of Appeals had previously adopted Chevron via Appalachian Power (1995). After Loper Bright, what deference (if any) state agencies still get is open. That uncertainty makes the Lottery Commission's regulatory DFS definition harder to defend.

Q: What should the Legislature do?
A: Define DFS in W. Va. Code § 29-22D-3. The AG's opinion ends with the conclusion that "only the Legislature may resolve the ambiguity."

Background and statutory framework

West Virginia's gambling structure layers a constitutional ban, statutory exceptions, and a recently overlaid sports-wagering regime.

The state constitution at art. VI, § 36 forbids private lotteries but allows lotteries "regulated, controlled, owned, and operated by the State of West Virginia." Several statutes carry that prohibition into criminal law: §§ 61-10-1 to -14 ban private lotteries and wagering on games of chance.

The legislative exceptions form a stack: the State Lottery Act (§ 29-22-1 et seq.), the Racetrack Video Lottery Act (§ 29-22A-1), the Limited Video Lottery Act (§ 29-22B-101), the Lottery Racetrack Table Games Act (§ 29-22C-1), the Lottery Sports Wagering Act (§ 29-22D-1), the Charitable Bingo Act (§ 47-20-1), and the Charitable Raffle Boards and Games Act (§ 47-23-1).

The Lottery Sports Wagering Act, enacted in 2018, defines sports wagering broadly to include accepting wagers on player performance "by any system or method of wagering approved by the commission," and lists parlays, over-unders, moneylines, and pools. Critically, it excludes "Daily Fantasy Sports (DFS)" from that definition without defining DFS. Murphy v. NCAA (2018) struck down the federal Professional and Amateur Sports Protection Act and let the Act take effect.

Operators must be licensed under § 29-22D-5(b), and only five gaming-facility licenses are available under § 29-22D-6(c). Operating without a license is a misdemeanor under § 29-22D-20(a).

The Lottery Commission promulgated the Lottery Sports Wagering Rule at W. Va. Code St. R. § 179-9-1 et seq. Its DFS definition (§ 179-9-2.8) requires four elements: peer competition; prizes known in advance; outcomes "determined predominantly by accumulated statistical results . . . of individuals, including athletes"; and "[a] winning outcome is not based on the score, point spread, performance of a single team, combination of such teams, or any single performance of an individual athlete or player in a single event."

The AG's analysis of agency rulemaking authority leans on Rowe v. W. Va. Department of Corrections (1982): an agency rule must be consistent with its statutory authority. State ex rel. Callaghan v. W. Va. Civil Service Commission (1980) frames the same question: rules cannot enlarge, amend, or repeal substantive rights. Appalachian Power v. State Tax Department (1995) had previously applied Chevron, but Loper Bright Enter. v. Raimondo (2024) overruled Chevron at the federal level, leaving the West Virginia question pending.

The chance-versus-skill analysis under §§ 61-10-1 to -14 turns on the predominance test, which is fact-intensive and depends on the specific game design. The AG declined to reach the merits without evidentiary support, citing Taylor v. Illinois (1988) on the necessity of adversarial process and Daubert v. Merrell Dow (1993) on scientific reliability. Dew-Becker v. Wu (Ill. 2020) showed how courts can split on whether head-to-head daily fantasy sports are predominantly skill or chance.

Citations and references

Statutes and constitution:
- W. Va. Code § 29-22D-1 et seq. (Lottery Sports Wagering Act)
- W. Va. Code § 29-22D-3 (Sports wagering definition with DFS exclusion)
- W. Va. Code § 29-22D-4 (Commission rulemaking)
- W. Va. Code § 29-22D-20(a) (Unlicensed operation misdemeanor)
- W. Va. Code §§ 61-10-1 to -14 (Lotteries and games of chance)
- W. Va. Code St. R. § 179-9-1 et seq. (Lottery Sports Wagering Rule)
- W. Va. Const. art. VI, § 36 (Lottery prohibition with state-operated exception)
- 31 U.S.C. § 5362(1)(E)(ix) (Federal UIGEA fantasy-sports provision)

Cases:
- Murphy v. NCAA, 584 U.S. 453 (2018)
- Loper Bright Enter. v. Raimondo, 603 U.S. 369 (2024)
- Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984), overruled by Loper Bright
- Appalachian Power Co. v. State Tax Dep't of W. Va., 195 W. Va. 573, 466 S.E.2d 424 (1995)
- Rowe v. W. Va. Dep't of Corr., 170 W. Va. 230, 292 S.E.2d 650 (1982)
- State ex rel. Callaghan v. W. Va. Civil Serv. Comm'n, 166 W. Va. 117, 273 S.E.2d 72 (1980)
- Vest v. Cobb, 138 W. Va. 660, 76 S.E.2d 885 (1953)
- W. Va. Consol. Pub. Ret. Bd. v. Clark, 245 W. Va. 510, 859 S.E.2d 453 (2021)
- Div. of Justice & Cmty. Servs. v. Fairmont State Univ., 242 W. Va. 489, 836 S.E.2d 456 (2019)
- Dew-Becker v. Wu, 178 N.E.3d 1034 (Ill. 2020)
- Taylor v. Illinois, 484 U.S. 400 (1988)
- Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993)
- State v. Gaughan, 55 W. Va. 692, 48 S.E. 210 (1904)

Source

• Landing page: not separately published (the PDF is the official record)
• Original PDF: https://ago.wv.gov/media/37570/download?inline

Original opinion text

State of West Virginia
Office of the Attorney General
John B. McCuskey
Attorney General

Phone: (304) 558-2021
Fax: (304) 558-0140
www.wvago.gov

Office of the Attorney General
State Capitol, Bldg. 1, Rm E-26
1900 Kanawha Blvd., E.
Charleston, WV 25305

August 6, 2025

The Honorable Roger Hanshaw
Speaker of the House
West Virginia House of Delegates
State Capitol, Room M-228
Charleston, WV 25305
Dear Speaker Hanshaw:
Your office has asked for an Opinion of the Attorney General about online daily fantasy
sports games. This Opinion is being issued under West Virginia Code § 5-3-1, which provides
that the Attorney General has the duty "to render to the ... Speaker of the House of Delegates a
written opinion or advice upon any questions submitted to the Attorney General ... in writing."
When this Opinion relies on facts, it depends solely on the factual assertions in your
correspondence with the Office of the Attorney General.

You provide a letter submitted to your office by PrizePicks, which describes itself as a
"daily fantasy sports operator ...[that] began offering its single-player daily fantasy sports ('DFS')
game in West Virginia in 2019." In January 2022, however, the West Virginia Lottery issued a
cease-and-desist letter to PrizePicks stating that the company was running a sports betting
operation "in violation of" West Virginia Code § 29-22D-20(a). PrizePicks says it then stopped
offering the single-player game in West Virginia.

In January 2024, PrizePicks began offering its "Arena"-branded multiplayer DFS game in
West Virginia. PrizePicks explains that "Arena is a contest that was specifically designed to
comply with the fantasy sports exemption contained in federal law ... and DFS definitions in states
that have stricter requirements for DFS contests." PrizePicks explains that Iowa law, for example,
"requires that DFS participants compete against each other." And PrizePicks suggests that West
Virginia law lacks that requirement but also lacks a definition for "fantasy sports."

PrizePicks notes that this Office issued an Opinion Letter in 2016 addressing fantasy sports
as defined in Senate Bill 529, a proposed law introduced during the 2016 Regular Session that was
never enacted. See W. Va. Op. Att'y Gen., Opinion Letter on the Legality of Fantasy Sports Games
(July 7, 2016), 2016 WL 3857081. The 2016 Opinion Letter addressed a different legal question:
"Whether West Virginia prohibits or criminally sanctions the offering of or participation in fantasy
sports games, as defined in Senate Bill 529." That opinion thus limited itself to the definitions
contained in SB 529. PrizePicks points out that SB 529 defined "fantasy sports," while the current
West Virginia Lottery Sports Wagering Act does not.

PrizePicks argues that its single-player game complies with the 2016 Opinion Letter. To
illustrate its argument, PrizePicks provides a screenshot of its "single-player game taken on
September 30, 2024 by an individual located in Indiana." According to PrizePicks, the "image
shows the participant's roster before he has entered it into the contest," the "prizes he is eligible to
win," and "the actual dollar amount of his highest eligible prize." The screenshot provided shows
the participant's "roster," which includes Simone Scuffet (goalkeeper for Italian soccer club
Cagliari) and Devon Achane (running back for the National Football League's Miami Dolphins).
For Scuffet, the participant has selected "more" than 3 goalie saves. For Achane, the participant
has selected "less" than 26.5 receiving yards. The screenshot shows that the participant has
selected "Flex Play," which says they "must hit 2 out of 3 in the lineup" to win. It's unclear from
the screenshot whether the participant has selected a third player or if the participant is choosing
to only select two players for the "roster." The screenshot also gives the participant the option to
select "Power Play," which requires the participant to "hit 3 out of 3 in the lineup" to win. Doing
so allows the participant to collect "5X" of the "entry fee," which is higher than the multipliers
applied to "Flex Play." The prize multipliers appear to be set by house oddsmakers in contrast to
fixed prizes based on the number of entries in a given contest.

With these facts in mind, your letter raises the following question:
Whether a game of the kind described in PrizePicks' letter is or is not a
violation of West Virginia Code § 29-22D-20(a) or other provisions of the West
Virginia Code pertaining to gambling.

We conclude that, under the facts described in the letter attached to your opinion request,
the single-player game described in the letter meets the initial definition of "sports wagering" in
the West Virginia Lottery Sports Wagering Act (the Act). The single-player game "accept[s]
wagers" on "the individual performance statistics of athletes in a sporting event" by means of
"parlays" comprised of player "over-under[s]." W. VA. CODE § 29-22D-3. PrizePicks calls a
"wager" an "entry fee," a "parlay" a "Flex Play" or "Power Play," and uses "more" or "less" rather
than "over" or "under." But we find these substitute terms are immaterial; the single-player game
described in the letter and a parlay (or round-robin parlay) of players' statistical propositions are
substantively the same.

That said, the Act's definition of "sports wagering" specifically excludes "Daily Fantasy
Sports (DFS)." W. VA. CODE § 29-22D-3. But DFS is an undefined term in the Act. And the
usual tools of statutory construction provide us no obvious definition, either. So without legislative
guidance on what is included in DFS, we can't say whether the unlicensed operation of the game
described in the PrizePicks letter violates West Virginia Code § 29-22D-20(a).

We also can't say whether PrizePicks' single-player game violates West Virginia law
prohibiting "games of chance." We simply do not have enough evidence to determine whether
PrizePicks' game is decided wholly or predominantly by chance.

Discussion

I. West Virginia Statutes Governing Private Lotteries.

Article VI, Section 36 of the West Virginia Constitution specifically forbids private
lotteries. W. VA. CONST. art. VI, § 36. Thus, several provisions of the West Virginia Code ban
private lotteries. See, e.g., W. VA. CODE §§ 61-10-1 to -14 (crimes against public policy).

But the Constitution does not bar state-facilitated lotteries, and the Legislature "has not
deemed it necessary to prohibit all forms of gaming," either. State v. Gaughan, 55 W. Va. 692, 48
S.E. 210, 212 (1904). The Constitution's express public exception to its ban on lotteries allows
for certain "lotteries which are regulated, controlled, owned, and operated by the State of West
Virginia." W. VA. CONST. art. VI, § 36. Consistent with that provision, the Legislature has
enacted laws permitting state-operated lotteries and state-regulated bingos and raffles by charitable
organizations. See W. VA. CODE § 29-22-1, et seq. (State Lottery Act); W. VA. CODE § 29-22A-1, et seq. (Racetrack Video Lottery Act); W. VA. CODE § 29-22B-101, et seq. (Limited Video
Lottery Act); W. VA. CODE § 29-22C-1, et seq. (Lottery Racetrack Table Games Act); W. VA.
CODE § 29-22D-1, et seq. (Lottery Sports Wagering Act); W. VA. CODE § 47-20-1, et seq.
(Charitable Bingo Act); W. VA. CODE § 47-23-1, et seq. (Charitable Raffle Boards and Games
Act).

II. The West Virginia Lottery Sports Wagering Act.

The Lottery Sports Wagering Act, W. VA. CODE § 29-22D-1, et seq., provides another
exception to the general lottery ban. The Act is intended to authorize the State of West Virginia
"to operate a lottery in the form of sports wagering." Id. § 29-22D-2(3). It's also intended to
"create[e] civil and criminal penalties to prosecute illegal operators" of "sports wagering
channels." Id. § 29-22D-2(4). At the time the Act was enacted in March 2018, federal law
restricted state regulation of sports wagering, but the Legislature wanted the state to be ready "to
regulate this activity ... when the federal ban on sports wagering is lifted." Id. § 29-22D-2(5).

And the federal ban was lifted. In May 2018, the Supreme Court of the United States struck
down the Professional and Amateur Sports Protection Act, which made it unlawful for a State "to
sponsor, operate, advertise, promote, license, or authorize by law ... a lottery, sweepstakes, or
other betting, gambling, or wagering scheme" based on competitive sporting events. 28 U.S.C.
§ 3702(1). The Court held that the federal law violated the anti-commandeering principle of the
Tenth Amendment and, therefore, invalidated it. Murphy v. NCAA, 584 U.S. 453, 474 (2018).

With federal law out of the way, the Act took effect. Sports wagering operators are required
to obtain "all necessary licenses" before "engag[ing] in any activity in connection with West
Virginia Lottery sports wagering." W. VA. CODE § 29-22D-5(b). That licensing requirement
covers already-existing "gaming facilit[ies]." Id. § 29-22D-6(a). If an operator obtains a license,
then the Lottery grants it "lawful authority to conduct West Virginia Lottery sports wagering
within the terms and conditions of the license." Id. § 29-22D-6(b). But the Lottery Commission
may only "issue up to five licenses .. . to operate a gaming facility ... in this state." Id. § 29-22D-6(c).

So, an operator must be licensed to engage in the business of sports wagering—any person
who does so without a license is guilty of a misdemeanor. See W. Va. Code § 29-22D-20(a).
"[S]ports wagering" is defined as "accepting wagers on sporting events, and other events, the
individual performance statistics of athletes in a sporting event or other events, or a combination
of any of the same by any system or method of wagering approved by the commission." Id. § 29-22D-3. This definition includes accepting wagers on "mobile applications and other digital
platforms that utilize communications technology." Id. And "sports wagering" includes, "but is
not limited to, exchange wagering, parlays, over-under, moneyline, pools, fixed odds wagering on
horse races, fixed odds wagering on dog racing, and straight bets." Id.

The Legislature specifically excludes "Daily Fantasy Sports (DFS)" from the definition of
"sports wagering." Id. Because "[t]he primary rule of statutory construction is to ascertain and
give effect to the intention of the Legislature," syl. pt. 8, Vest v. Cobb, 138 W. Va. 660, 76 S.E.2d
885 (1953), we must assume the Legislature intended to exclude DFS from the regulation of
"sports wagering" even if it would otherwise meet the "sport wagering" statutory definition. See
W. Va. Consol. Pub. Ret. Bd. v. Clark, 245 W. Va. 510, 519, 859 S.E.2d 453, 462 (2021)
(explaining that certain payments to State employees are specifically excluded from
"compensation" under Public Employees Retirement System by statute).

III. Lottery Commission's Regulations.

Like similar entities that are "creatures of statute," the Lottery Commission is a "delegate[]
of the Legislature" whose "power is dependent upon statutes," such that it "must find within the
statute warrant for the exercise of any authority which" it claims. Div. of Justice & Cmty. Servs. v.
Fairmont State Univ., 242 W. Va. 489, 498, 836 S.E.2d 456, 465 (2019). The Act authorizes the
Lottery Commission to "promulgate or otherwise enact any legislative, interpretive, and
procedural rules the commission considers necessary for the successful implementation,
administration, and enforcement" of the Act. W. VA. CODE § 29-22D-4(c). The Legislature's
grant of authority includes, among other things, rules "governing the acceptance of wagers," "type
of wagering tickets," and accounting and systems methodologies. Id. § 29-22D-4(c)(1). It also
grants the Lottery Commission the authority to "exercise any other powers necessary to effectuate
the provisions" of the Act. Id. § 29-22D-4(j).

Under its statutory grant, the Lottery Commission promulgated the Lottery Sports
Wagering Rule, W. VA. CODE ST. R. § 179-9-1, et seq. The Rule is intended to "clarify and provide
regulations that the Commission considers necessary for the successful implementation,
administration, and enforcement of the West Virginia Lottery Sports Wagering Act."
Id. § 179-9-1.

Of specific importance here, the Lottery Commission's rule defines "Daily Fantasy
Sports." W. VA. CODE ST. R. § 179-9-2.8. According to the Lottery Commission, DFS "means a
fantasy or simulation sports game, educational game, contest, or competition" meeting four
definitional requirements. Id. First, DFS participants must "own, manage, or coach imaginary
teams in competitions against other participants, and not against the individual or entity
responsible for creating, administering or operating such contest, for a prize and/or award." Id.
§ 179-9-2.8.1. Second, "[t]he value of all prizes and awards offered to winning participants is
established and made known to the participants in advance of the fantasy game, contest, or
competition." Id. § 179-9-2.8.2. Third, "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 the sporting events." Id. § 179-9-2.8.3. Finally, "[a] winning outcome is not based on the score, point spread, performance of a
single team, combination of such teams, or any single performance of an individual athlete or
player in a single event." Id. § 179-9-2.8.4.

Based on the facts in PrizePicks' letter, its single-player game wouldn't meet the Lottery
Commission's definition of DFS. The participants do not compete against other participants
(hence "single-player"). They effectively compete against PrizePicks (through house-set odds).
And a winning outcome is based on single-player performance. For example, in a "Power Play,"
one player's statistical total being "more" than the house-set line would result in a loss and no
payout if the participant selected "less."

But the game's failure to meet the Lottery Commission's standard isn't dispositive, as it's
unclear whether the Act's grant of rulemaking authority extends to providing definitions to
exclusionary terms. "It is fundamental law that the Legislature may delegate to an administrative
agency the power to make rules and regulations to implement the statute under which the agency
functions." Syl. pt. 3, Rowe v W. Va. Dep't of Corr., 170 W. Va. 230, 292 S.E.2d 650 (1982).
But "an administrative agency may not issue a regulation which is inconsistent with, or which
alters or limits its statutory authority." Id. "Procedures and rules properly promulgated by an
administrative agency with authority to enforce a law will be upheld so long as they are reasonable
and do not enlarge, amend or repeal substantive rights created by statute." Syl. pt. 4, State ex rel.
Callaghan v. W. Va. Civil Serv. Comm 'n, 166 W. Va. 117, 273 S.E.2d 72 (1980).

Assuming that the regulations were validly promulgated, it's not certain what effect they
may ultimately have in defining "Daily Fantasy Sports." The Supreme Court of Appeals of West
Virginia had previously adopted the U.S. Supreme Court's so-called Chevron test, which called
for deference to reasonable agency constructions of ambiguous statutes. Syl. pt. 3, Appalachian
Power Co. v. State Tax Dep't of W. Va., 195 W. Va. 573, 466 S.E.2d 424 (1995) (citing Chevron
U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984)). But the Chevron test has been overruled. See Loper
Bright Enter. v. Raimondo, 603 U.S. 369, 412 (2024) ("Chevron is overruled."). The Supreme
Court of Appeals hasn't had the opportunity to address what deference (if any) is still owed to
administrative agencies in the wake of Loper Bright, though it is set to address the question in a
case to be argued in September 2025. See St. Joseph's Hosp. of Buckhannon, Inc. v. Stonewall
Jackson Mem'l Hosp. Co., No. 24-347 (W. Va. S. Ct. App. filed June 24, 2024).

With that legal uncertainty in mind, it's important that Daily Fantasy Sports are excluded
from the definition of "sports wagering" in the Act. Because it's excluded, the Legislature didn't
intend for DFS to be subject to the Lottery Sports Wagering Act and, by extension, the Lottery
Commission's rules and regulations for enforcement of the Act. So, by defining DFS, the Lottery
Commission has determined what conduct it does and does not regulate. That definition likely
"alters" the Lottery Commission's "statutory authority." Syl. pt. 3, Rowe, supra. And defining
the Lottery Commission's regulatory reach is not included in the Act's express grant of authority.
See generally W. VA. CODE § 29-22D-4. Because the definition appears to be authority-altering,
its enforceability is questionable—especially without post-Loper Bright guidance.

IV. The Lottery Commission's Cease-and-Desist Letter.

Much of PrizePicks' letter discusses the Attorney General's 2016 Opinion Letter. That
discussion is in turn based on the Lottery Commission's 2022 Cease-and-Desist Letter ("C&D
Letter"). The C&D Letter relied heavily on the 2016 Opinion Letter, primarily for its supposed
"definition" of DFS. But the 2016 Opinion Letter didn't define DFS. Instead, it interpreted
SB529's definition of "fantasy game." 2016 Opinion Letter, 2016 WL 3857081 at *2. And it
specifically stated that the opinion was confined to "whether West Virginia prohibits or criminally
sanctions the offering of or participation in fantasy sports games, as defined in Senate Bill 529."
Id. Because SB529 was never enacted, its definition of DFS has no legal effect. The Lottery
Commission's reliance on this definition, therefore, was legally dubious. Any evaluation of
whether PrizePicks' single-player games meet that definition is beside the point.

V. Unresolved Ambiguities.

PrizePicks' single-player game constitutes "sports wagering." The single-player game
"accept[s] wagers" on "the individual performance statistics of athletes in a sporting event" by
means of "parlays" comprised of player "over-under[s]." W. VA. CODE § 29-22D-3. True, the
single-player game calls a "wager" an "entry fee," a "parlay" a "Flex Play" or "Power Play," and
uses "more" or "less" rather than "over" or "under." But PrizePicks' use of substitute terms
doesn't change the nature of its game. There are no substantive differences between the single-player game described in the letter and a parlay (or round-robin parlay) of players' statistical
propositions. See, e.g., Barry M. Klein, Removing Chance from the Litigation of Daily Fantasy
Sports: The Need to Broaden the Scope of What Constitutes A Game of Skill, 55 TEX. TECH L.
REV. 779, 792 (2023) ("PrizePicks shares many similarities to traditional sports wagering despite
its self-imposed DFS label."); Robert L. Haig, 4G N.Y. Prac., Commercial Litigation in New York
State Courts § 152:28 (5th ed. Oct. 2024 Supp.) ("According to the [New York Gaming]
Commission, these pick'em contests, where players bet the 'over' or 'under' on certain individual
athlete's statistics, essentially meant that PrizePicks was offering mobile sports betting without
being licensed to do so.").

But that doesn't end the inquiry. Because "Daily Fantasy Sports" are specifically excluded
from the definition of "sports wagering," we must determine whether the single-player game meets
the definition of DFS. That we can't do. The statute does not define DFS. Id. No other West
Virginia law refers to DFS, so we cannot apply a definition by analogy. We have not located any
consistent understanding of the ordinary meaning of "daily fantasy sports," and understandings
vary within the laws of other States (as PrizePicks' letter notes) and the Unlawful Internet
Gambling Enforcement Act. See 31 U.S.C. § 5362(1)(E)(ix). For the reasons already explained,
our 2016 Opinion Letter and the Lottery Commission's rule also provide no help. Because the
definition of DFS necessarily describes the Lottery Commission's regulatory powers, only the
Legislature may resolve the ambiguity.

VI. Chance/Skill Determinations.

Several statutes in Article 10 of Chapter 61 of the West Virginia Code prohibit private
lotteries and other games of chance. Specifically, it is unlawful to play any private "lottery or
raffle" that is won by "using dice, or by any other game of chance." W. VA. CODE § 61-10-11.
And under Section 61-10-5, it is unlawful to "bet or wage money or other thing of value on any
game of chance." Our 2016 Opinion Letter examined the predominance test in depth. We
determined that the definition of fantasy sports games in SB 529 described a game in which chance
does not predominate and, therefore, a game that is not unlawful under West Virginia law.

Again, that definition has no legal effect because SB 529 failed. But private lotteries
permitting wagering on games of chance violate West Virginia law. The PrizePicks letter makes
the case that its single-player game is predominantly skill-based. PrizePicks says it has hired
expert statisticians. One has testified that "chance is immaterial to the likelihood of long-term
competitive success" in the single-player game. Another has testified that the single-player game
has more high-performing participants than could be explained by chance.

We lack sufficient information to give an opinion as to the PrizePicks game's compliance
with the other "private lottery" statutes. We were faced with this issue previously. We weren't
able to say whether "a particular fantasy sports game" was a game of skill or chance because the
"answer to that question would turn on the specific rules" of the game "and possibly other factual
information that you have not provided." 2016 Opinion Letter, 2016 WL 3857081, at *6. The
same is true here. We don't have expert reports or testimony. We don't have raw data. We don't
have the benefit of the adversarial process, "which depends both on the presentation of reliable
evidence and the rejection of unreliable evidence." Taylor v. Illinois, 484 U.S. 400, 414-15 (1988).
"In a case involving scientific evidence, evidentiary reliability will be based upon scientific
validity." Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 590 n.9 (1993). We lack the
scientific evidence and means to test scientific validity. So we cannot answer whether this
particular game is based predominantly on skill or chance, especially when authorities have split
over whether daily fantasy sports constitute games of skill or chance (in circumstances that are
often heavily dependent on the fact-specific determinations). Compare Dew-Becker v. Wu, 178
N.E.3d 1034, 1040 (Ill. 2020) (relying on certain studies to hold that head-to-head daily fantasy
sports are predominantly games of skill), with id. at 1043 (Karmeier, J., dissenting) (refusing to
consider these studies as outside the record and concluding that the same head-to-head DFS games
are games of chance). In turn, we cannot answer whether this particular game violates the general
prohibition on private lotteries.

Conclusion

Daily Fantasy Sports are not subject to the penalties in West Virginia Code § 29-22D-20(a)
because the Legislature excluded them from the definition of "sports wagering." But in failing to
define Daily Fantasy Sports in the West Virginia Lottery Sports Wagering Act, the Legislature left
ambiguity that only it can resolve. Because of this ambiguity, we cannot say whether the
unlicensed operation of the game described in the PrizePicks letter violates West Virginia Code
§ 29-22D-20(a). Likewise, lacking sufficient evidence of the game's "chance" or "skill," we
cannot say whether the game constitutes a prohibited private lottery under other West Virginia
statutes.

Sincerely,

John B. McCuskey
Attorney General