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Written By: Sezen Z. Oygar, Esq.

Neil, Dymott, Frank, McFall & Trexler APLC

San Diego, California

As football (and fantasy football) season come to a close, how well did your team weather the storm? Did your fantasy football team pan out as expected? Did you foresee your first string quarterback’s injury or the suspension of your star offensive tackle? Maybe you had a perfect back up plan ready to execute. Or, in the alternative, did you reap the benefits of those suspensions and poor performing players to your competitor’s detriment? With the endless possibilities that can affect a fantasy football team, it begs the question: Is fantasy football a game of skill or chance? Perhaps more importantly, if your team isn’t in the top of the league, are you willing to admit that the game is one of skill, not chance?

The Unlawful Internet Gambling Enforcement Act (2006) (UIGEA) protects fantasy football leagues, interpreting the craze and multi-billion dollar industry as a game of skill rather than chance. Under federal law, the UIGEA requires winnings be reported to the IRS and all prizes must be determined in advance of the competition and cannot be influenced by the number of participants or fees. Some states, however, view the game a little differently.

Despite federal law’s elucidation fantasy football is a game of skill with the aforementioned criteria, many states have interpreted the game differently. States like Arizona, Iowa, Louisiana, all classify fantasy football as a game of chance, essentially declaring the game as one of luck, thereby limiting the legality of the game. Florida goes one step further. The sunshine state prohibits its residents from playing in fantasy leagues if they collect money from entry fees, punishing the “crime” as a misdemeanor. Interestingly, however, some pay to play type leagues, such as Yahoo! Pro are not specifically excluded from and are played in Florida (see the “Official Rules” and participation restrictions for pay to play leagues). If Florida isn’t excluded from participation in some online pay to play leagues unlike Arizona, Iowa, and Louisiana for example, it begs the question: Is there really any enforcement of Florida’s law?

For most states, including California, the question of the legality of fantasy football is somewhat silent. California’s gambling law is found in section 19800 of the Business and Professions Code and sections 319 to 330 of the Penal Code. What it fails to do, however, is specifically address fantasy sports games. While the federal government protects fantasy football as a game of skill if it meets certain criteria, would California Court’s agree? California Court’s would likely apply the Predominate Purpose Test to determine if a form of gambling is one of chance or skill. Under the Predominate Purpose Test, if more than fifty percent of the game’s result is derived by chance, then it is considered a game of chance. In defining a game of chance, a court would look at the character of the game, rather than a player’s skill (or lack thereof). The test is not whether the game contains an element of skill or chance, but rather, which one is the dominant factor in determining who wins.

For now, it appears the majority view would follow federal law, determining pay to play fantasy football as a game of skill under certain criteria. With only weeks left in the regular season, I leave fantasy football players with the following advice: Should you find yourself in the bottom of your league, hate the (skillful) player, not the game.

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