[toc]West Virginia Attorney General said state law does not prohibit paid fantasy sports, but stopped short of saying all contests would be legal in the state.
The attorney general also said that paid fantasy sports, in general, are “Not decided mainly by chance”.
Why WV AG weighed on DFS
West Virginia Attorney General Patrick Morrisey was responding to a request for legal advice regarding DFS from President of the Senate William Cole. It was requested in view of the tabling of a bill aimed at legalizing DFS, S 529.
This law project passed the Senate, 18-16, in February. It was not picked up by the House of Delegates and did not become law.
But the GA has just given its opinion, which diverges from Notice of GA in a number of states categorically stating that paid fantasy contests are legal or illegal under state law.
What the GA says about DFS
Here’s the gist of the review:
We conclude that West Virginia does not prohibit offering or participating in fantasy sports games as defined in Senate Bill 529. We read that state law only prohibits betting on games decided at least primarily by chance.
Fantasy sports games, as defined in the Senate bill, are not so decided.
The takeaway is not very varied. In essence, the GA mocks the legality of the DFS in general and says “it depends” on the specific competition envisaged.
However, opinion notes that fantastic sports are “not entirely or mainly decided by chance», At least defined by the Senate bill:
But you haven’t asked, and we’re not responding, whether a court would find that a particular fantasy sports game meets the definition of Senate Bill 529. The answer to this question would relate to the specific rules of a particular fantasy sports game, and possibly other factual information that you did not provide.
Nonetheless, we note that fantasy sports games, as we described them in the substantive discussion above, are probably not decided primarily by chance.
Other takeaways from WV’s opinion
Enforcement of WV’s advisory is quite limited, but it does offer these caveats:
Sports betting, a game of skill too?
The West Virginia Opinion notes that sports betting is also a game of skill, under state law:
We echo a previous attorney general, who held that sports betting is not something primarily determined by chance, but rather by skill.
West Virginia Should Further Clarify Legality
Despite opinion, GA says state house should probably tackle DFS legislation:
As with any new issue of law, however, the best course of action may be for the legislature to pass a law that directly addresses the legality of fantasy sports games.
Not at odds with other jurisdictions
Few jurisdictions have found DFS to be clearly legal under state law – Rhode Island and Massachusetts have. But the West Virginia opinion goes on to say that its finding is not at odds with other states that have declared that DFS was illegal gambling:
State Attorneys General who have found that their state’s laws only prohibit betting on games decided primarily by chance, as we have determined about West Virginia law, have also found that sports gambling fantastic payoffs were legal in their states.
In contrast, in states where fantasy sports gambling has been found to be illegal, state attorneys general have found that state gambling laws apply more broadly than in West Virginia, banning betting in many areas. more games than those where chance predominates.
However, the opinion was not delivered until another State had issued its opinion.
When it rains, it rains for AG notices
After some silence on the legality of DFS, this is the second AG opinion to surface in the past week. Delaware GA determined that paid fantasy sports are illegal games of chance under the law of that state.
Interestingly, the Delaware Department of Justice said luck is a dominant factor in DFS contests, which appears to be at odds with West Virginia’s findings.
Relying on the Delaware Constitution, as well as state and federal government case law, attorneys for the Department of Justice have determined that online fantasy contests that involve payment for gambling and monetary rewards constitute a game because chance, as opposed to skill, is the dominant factor in the outcome of these contests. .
While Delaware did not do much to support this position and offered no formal notice, West Virginia obviously took a very close look at paid-for fantasy sports contests, with almost 40 footnotes in a 14-page review.
DraftKings made the following statement following the publication of the GA notice:
“DraftKings is pleased with Attorney General Patrick Morrisey’s opinion that daily fantasy sports are games of skill and legal in the state. The opinion is also well received by tens of thousands of daily fantastic sports fans in West Virginia who enjoy the fun and excitement of our competitive games. We look forward to continuing our cooperation with elected leaders and state officials to ensure the best possible experience for our players. “
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