Virginia Attorney General weighs in on pick’em-style games legality controversy
Jason S. Miyares asserts that controversial DFS contests are in fact sports betting, in latest setback for vertical
Virginia’s Attorney General Jason S. Miyares has asserted his belief that pick’em-style daily fantasy sports (DFS) contests constitute sports betting and should be regulated as such under Old Dominion State law.
Miyares responded with an official opinion to a request from Virginia House of Delegates member Wren M. Williams, who asked if the games constituted fantasy contests or sports betting.
In his reply, he wrote: “It is my opinion that, because fantasy contests require multiple customers competing against each other, a gambling arrangement that involves customers betting on athletes’ performance metrics against an operator’s established baseline, and not other contest participants, constitutes sports betting as defined by Virginia code.”
Expanding on his rationale, the legislator drew on an existing Supreme Court precedent regarding the treatment of illegal gambling, something which pick’em-style contests would constitute as they are, by assertion, unregulated in the state.
Miyares also referenced the Virginia Fantasy Contests Act, which defines fantasy contests in the state, broadly speaking, as games of skill rather than chance, ascribing three conditions, namely, prizes being known, participants competing against each other, and that outcomes are not based on single performances.
“Accordingly, a ‘fantasy contest’ is one in which multiple individual contestants earn points based on statistical, not actual, results of athletes’ performances and a contestant wins upon garnering more points than the other contestants,” Miyares wrote.
“The contest operator, or ‘the house,’ is not intended to be one of the individual contestants in a multi-player fantasy contest,” he noted.
In his concluding remarks, Miyares suggested that any DFS operator wishing to operate pick’em-style DFS contests must comply with the sports betting requirements imposed by the Virginia Lottery Board.
Despite Miyares’ stern language, his opinion does not constitute an enforcement of rules on the matter, nor a cease and desist order.
Rather, official opinions represent the Attorney General’s analysis of current law based on his research of existing statutes, the Virginia and United States constitutions, and relevant court decisions.
The opinions are not ‘rulings’ and do not create new law, nor do they change existing law. In Virginia, creating and amending laws is the responsibility of the Virginia General Assembly, not the Attorney General.
Operators Underdog Fantasy, Sleeper, and PrizePicks, that all operate in the state as licensed DFS firms, have defended the legality of the pick’em vertical across the US, amid a rising tide of questions from regulators and extensive lobbying against the sector by the likes of DraftKings and FanDuel.
In a statement provided to EGR, the Coalition for Fantasy Sports (CFS), which represents all three operators, questioned the Attorney General’s stance on the matter.
“We disagree with the Attorney General’s opinion and look forward to continuing our positive working relationship with our governing agencies in the Commonwealth of Virginia,” a spokesperson for the CFS said.
“The opinion does not supersede the licensing process in place as established by the Virginia General Assembly.
“The Office of Charitable and Regulatory Programs (OCRP) is responsible for administering the Fantasy Contests Act in the Commonwealth. Our member companies are licensed and continue to operate legally in Virginia,” the trade body added.