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Daily Fantasy Sports as Game of Chance: Distinction Without a Meaningful Difference?

December 23, 2016
By N. Cameron Leishman

This paper, written by N. Cameron Leishman and published in Brigham Young University BYU Law Review, examines the current legal status of daily fantasy sports (DFS) within states’ gambling laws.

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This paper, written by N. Cameron Leishman and published in Brigham Young University BYU Law Review, examines the current legal status of daily fantasy sports (DFS) within states’ gambling laws, arguing that states’ treatment of DFS as games of chance is hypocritical, because those states permit other, traditional fantasy sports competitions.

States’ treatment of DFS and traditional fantasy sports is not based in logic, Leishman writes.

“These divergent treatments may lead one to believe that the gulf between traditional and daily fantasy sports is wide,” Leishman writes. “Indeed, those who advocate prohibition of daily fantasy sports while arguing that traditional fantasy sports should remain unregulated should be prepared to provide a compelling rationale for such varied treatment. Otherwise, such disparate regulation would smack of mere economic protectionism. The principal justification for distinguishing between the two fantasy regimes is that daily fantasy sports is a prohibited game of chance, while traditional fantasy sports is a permitted game of skill. … So long as traditional fantasy sports are permitted and even encouraged by policymakers, daily fantasy sports should not receive disparate treatment and should be permitted as a game of skill.”

To justify treating DFS differently than traditional fantasy sports, lawmakers must be able to explain the difference, something they have failed to do, Leishman writes.

“Because traditional fantasy sports have become ubiquitous and uniquely intertwined with professional sports, policymakers have deemed that they are a permissible game of skill,” Leishman writes. “On the other hand, daily fantasy is viewed as a game of chance and immediate threat to public welfare. In order to equitably justify disparate treatment, some set of distinguishing characteristics must be offered.”