Virginia Attorney General Says Pick'Em Games Are Not Fantasy Contests

December 18, 2023
Virginia’s attorney general issued an official opinion on Friday that pick’em-style games offered by several prominent fantasy contest operators are in fact a form of sports betting, rather than fantasy sports per state law.

Virginia’s attorney general issued an official opinion on Friday (December 15) that pick’em-style games offered by several prominent fantasy contest operators are a form of sports betting, rather than fantasy sports per state law.

Attorney General Jason Miyares received a request to weigh in from Wren Williams, a member of the state’s House of Delegates, regarding customers wagering on “the performance metrics of specific athletes,” and whether that arrangement involving a single player competing against the house would constitute a “fantasy contest” or “sports betting” under state law.

In a four-page opinion, Miyares said he believes the pick’em-style offerings are a form of sports betting.

“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 in [state law],” Miyares wrote.

Fantasy sports contests are legal in Virginia via the 2016 Fantasy Contests Act, and regulated by the state’s Department of Agriculture and Consumer Services. 

Miyares said that the player-against-the-house model does not meet the legal requirements of a fantasy contest, and laid out the three elements that form the definition.

“In simplified terms, they are 1) prizes are established and known ahead of the contest; 2) participants compete against each other and winners are determined based on the accumulation of statistical performance, and 3) outcomes are not based on actual single performances or event results,” he wrote.

“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.

“The contest operator, or ‘the house’ is not intended to be one of the individual contestants in a multi-player fantasy contest.”

Miyares contrasted that definition with that of sports betting, which was legalized in the state during 2020 and is regulated by the Virginia Lottery.

“The definition of ‘fantasy sports’ clearly requires multiple contestants competing against one another for a win, with winning being determined by the contestants ‘relative knowledge and skill’,” he wrote. “In contrast, 'sports betting' is a form of gambling where individuals wager on the outcomes of actual sporting events or specific statistical performances against the betting operator or house.”

“The key distinctions thus lie in the fact that the results of sports betting can be determined by a specific performance of an individual athlete and without direct competition between bettors, as is the case in fantasy sports.”

As a result, Miyares said that the pick’em-style contests do not fit the definition of a fantasy contest, “but rather align more closely with a form of sports betting.”

“Although the fact that the individual contestants are not competing against each other is critical to this determination, I further conclude that, to the extent contest results hinge solely on individual performance metrics stemming from a single sporting event, the contest also falls outside the definition of fantasy contest and instead constitutes sports betting.”

In a footnote to the opinion, Miyares wrote that “any fantasy sports operator who wishes to offer any such contest to its customers must comply with permitting requirements of the sports betting program established by the Virginia Lottery Board.”

Official opinions from the attorney general are not binding legal rulings, but rather an analysis of how to interpret the existing case law. 

However, they are typically given some deference by courts in the event of a legal challenge.

The opinion is the latest setback for pick’em-style contest operators in a year that has seen several state regulators, including those in Michigan and New York, adopt new regulations to curtail the games as well as regulators in Florida, Arizona, Maine and others declare in some form that the games are not permitted. 

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