The Uncertain Future of Daily Fantasy Sports
Fresh off the news that ESPN has ended its exclusive advertising deal with DraftKings, I felt like I should further explore the world of daily fantasy sports by looking at the overall legality of the industry itself. The Unlawful Internet Gambling Enforcement Act of 2006 is the statute that first crafted an exemption for fantasy sports to be legal if certain criteria are met. Essentially, fantasy sports games have to be skill-based with no outcomes being determined by single real-world teams or athletes. This is where daily fantasy sports may be in some trouble.
Daily fantasy sports lineups are chosen for one day of games (or one week for football) with participants having an imaginary “salary cap” that they cannot go over in order to pick their players for that specific day or week. This helps with the argument that these games are skill-based under UIGEA. Contestants need to have knowledge of the matchups, weather conditions, home/away team, and many other factors in order to craft the team that gives them the most bang for their imaginary buck. On its face, this seems to require quite a lot of skill. However, this is where one could make an argument that this is not skill-based but a game of chance.
Each user’s team is only going to be as good as the collective performances of each individual athlete on their team that week. The user has absolutely no control over how each one of these players is going to perform in their game. Athletes can get sick, injured, not play much, or a whole host of other things that can effect their overall performance. All of these things are completely random with the argument for illegality being that no amount of skill can overcome the amount of chance that is involved in daily fantasy outcomes.
Many state governments are ruling that daily fantasy is illegal gambling with Nevada and New York leading the charge. If this trend continues, it is highly likely that we will see the daily fantasy industry disappear like many Internet gambling sites before it.