Virginia AG Says Pick’em Fantasy Games Are Sports Betting

Written By T.J. McBride on December 19, 2023
Man signing a letter on a story about the Virginia attorney general writing an opinion defining daily fantasy sports as sports betting.

The future of daily fantasy sports operators in Virginia that offer games against the house has become uncertain.

An official opinion from the state attorney general clearly states that pick’em games are sports betting. That means that companies offering that type of DFS game must hold sports betting licenses in the commonwealth.

It would require legislative action to change the current fantasy sports landscape, but that could be the next step after the AG’s opinion. Other states have already taken steps against companies offering DFS games played against the house.

VA House of Delegates requested official AG opinion

There are currently 14 online operators active in the Virginia sports betting market, which took in $571 million in bets in October.

Not included as sports betting operators in Virginia are PrizePicks and Underdog Fantasy. These two companies offer house-banked daily fantasy sports games.

Some members of the Virginia House of Delegates wondered how these companies were operating in the commonwealth without sports betting licenses.

Virginia House of Delegates member Wren Williams formally requested the opinion of Virginia Attorney General Jason S. Miyares on the matter. The issue was outlined in Miyares’ opinion:

“You inquire regarding the proper classification of a gambling scenario that involves customers of online contest operators placing bets on the performance metrics of specific athletes. You specifically ask whether an arrangement involving only a single customer constitutes a ‘fantasy contest’ or ‘sports betting’ under Virginia law.”

AG offers clear distinction between fantasy and sports betting

The response provided by the AG in his official opinion was direct and to the point:

“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 the other participants, constitutes sports betting as defined in Virginia code …”

The opinion marks a clear line in the sand in how these games are defined. According to Miyares, if a game is played against the house, it is not fantasy sports. It’s sports betting and requires a license.

Fantasy sports is defined by Miyares as multiple people competing against each other, whereby the house is not one of the contestants. For example, a fantasy league on ESPN or another free service.

“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.”

With this official opinion in the hands of Virginia delegates, action against companies like PrizePicks or Underdog Fantasy could be coming soon. While the opinion does not change current laws, it does provide a foundation for Virginia lawmakers to enact legislation.

Other states are taking action

Virginia is not the only state dealing with this issue. Several other states have begun acting against DFS operators offering house-involved fantasy sports games.

New York gaming commissioners have recently come to an agreement to ban any DFS games that have the intention of mirroring sports wagering. Both PrizePicks and Underdog Fantasy were a part of a coalition that tried to convince New York regulators to not ban these games.

Underdog Fantasy is also having legal issues in Maine. The Maine Gambling Control Unit recently forced Underdog Fantasy to “immediately cease” offering sports betting-style games that are played against the house.

The Michigan Gaming Board is looking at banning prop bet games offered by DFS companies. One of the companies that could be impacted is PrizePicks.

Six other states are also beginning to take steps toward the same bans.

  • Colorado
  • Florida
  • Massachusetts
  • North Carolina
  • Ohio
  • Wyoming

Underdog Fantasy CEO Jeremy Levine has said this attack on these DFS games is because sports betting operators feel threatened.

“But Underdog and other companies innovating in fantasy sports and sports betting threaten their monopoly. They’ve seen our company, and others, produce superior products, more exciting user experiences, and begin to challenge them for sports fans’ attention – and they’re scared that we will challenge their market positions. We’re already bigger than they are in fantasy. Frankly, they should be scared.”

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T.J. McBride

T.J. McBride is a writer and reporter based in Denver. He is a Nuggets beat writer and also covers the regulated gambling industry across the U.S. His byline can be seen at ESPN, FiveThirtyEight, Bleacher Report and more.

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