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Game Changer Rethinking Online Gambling Regulation in the Age of Daily Fantasy Sports

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Game Changer Rethinking Online Gambling Regulation in the Age of Daily Fantasy Sports Game Changer Rethinking Online Gambling Regulation in the Age of Daily Fantasy Sports By Steven Titch and Michelle Minton ISSUE ANALYSIS 2016 NO. 2 May 2016 CEIAnalysis-Titch:Layout 1 5/10/2016 4:25 PM Page 1 Game Changer Rethinking Online Gambling Regulation in the Age of Daily Fantasy Sports By Steven Titch and Michelle Minton Executive Summary betting is illegal because of a federal law from the The rapid rise in the popularity of Daily Fantasy Sports 1990s that disallows all but four states from regulating (DFS), now a multi-billion dollar a year industry, the activity. While these illegal wagers include inno- represents a sea change in how Americans gamble and cent office pools and informal bets between friends, has rightly spurred a reevaluation of our gambling others are run by criminal syndicates and used to fund laws. The legality of non-sports online gambling was other illicit activities, including drug distribution and drawn out of its long-occupied gray area in 2011 by a human trafficking. Department of Justice opinion that paved the way for The popularity of fantasy sports betting and the states to legalize and regulate certain forms of online regulatory tangle developing around it demand a gambling, as several have done. At the same time, it reassessment of gambling regulation in general, and provoked opponents of expanded gambling to push for online gambling regulation in particular. For years, a federal prohibition of online wagering. The fragile online gambling sites simply recreated poker and legal status of online gambling in general, and of established casino games like blackjack, roulette, fantasy sports betting in particular, has resulted in craps, and slot machines, while offshore sites offered responses from lawmakers, state gaming regulators, conventional sports betting. DFS, which has never been and state attorneys general that range from embracing offered in a brick-and-mortar casino or sports book, legalization and regulation to calls for outright bans. owes its existence to the processing power and social According to the Fantasy Sports Trade Association, networking scale the Internet provides. This, and the more than 41 million people played fantasy sports in fact that the Internet creates virtual communities that the United States and Canada in 2014. In recent years, can defy state lines and national borders, is forcing much of the growth in fantasy sports revenue has come lawmakers to reevaluate the degree to which gambling from daily fantasy sites, with Americans spending can be regulated, how well prohibitions can be roughly $3 billion on DFS each year. enforced, and whether the cost and resources needed to mount successful investigation and prosecution of The fantasy sports industry’s two largest operators, illegal gamblers can yield any net gains in terms of FanDuel and DraftKings, assert that DFS is not community safety or health. Several states, including gambling because it is a “game of skill,” which puts it New Jersey and Pennsylvania, have taken steps to outside the purview of federal and state gambling overturn the federal ban on sports gambling. statutes that regulate “games of chance.” However, many state attorneys general disagree and are taking What kind of gambling regulations are best for America action to prevent such companies from operating today? Why are online fantasy sports legal, while outside of states’ gambling laws. offline sports betting remains illegal? Should legal offline games, like poker or the lottery also be legal At the same time, industry experts estimate that online? What would be the consequences of legalizing Americans spend upwards of $145 billion a year or criminalizing online gambling? Should regulation gambling on traditional sporting events. Most of this be left to the states or to the federal government? This Titch and Minton: Game Changer 1 CEIAnalysis-Titch:Layout 1 5/10/2016 4:25 PM Page 2 paper seeks to address these questions and provide a Good policy begins with recognizing that gambling, framework for regulating gambling in the age of DFS. whether on the lottery, at the casino, or betting online on the big game, is a legitimate means of recreation. While the DFS industry will likely accept regulation Rather than enforcing subjective morality or trying to in return for a stable operating environment, such protect people from themselves, modern gambling regulation must be wisely implemented to be effective, regulation should treat citizens as adults, restore allowing competition and diversity in game selection, individual choice, protect consumers from crime, and and incorporating consumer protection against fraud preserve the right of states to regulate and profit from and theft. gambling activities within their borders. 2 Titch and Minton: Game Changer CEIAnalysis-Titch:Layout 1 5/10/2016 4:25 PM Page 3 Introduction Why are online fantasy sports legal, John Bovery did not think he was while offline sports betting remains doing anything wrong until 11 police illegal? Should legal offline games, like officers in full body armor busted into poker or the lottery also be legal online? his condo in New Jersey, handcuffed What would be the consequences of The controversy him, and tore through his home. They legalizing or criminalizing online told him they were looking for cash— gambling? Should regulation be left to surrounding more than $800,000 he had collected the states or to the federal government? the widespread from running a sports betting pool. The This paper seeks to address these office pool, which started with just questions and provide a framework activity of fantasy under 60 participants in 1999, had for regulation in the age of DFS. sports betting ballooned to more than 8,000 players by 2009. Bovery was charged with is prompting illegally promoting gambling and State of Play federal and state money laundering. He lost his job, his The rapid rise in popularity of Daily life savings, and may lose his freedom Fantasy Sports represents a sea change lawmakers to 1 when his case finally goes to trial. in how Americans gamble and has ask what kind rightly spurred a reevaluation of As Bovery awaited his trial for more America’s gambling laws. The legality of gambling than five years, he watched as New of non-sports related online gambling Jersey attempted over and over again regulations was drawn out of its long-occupied to make sports betting legal in his home gray area in 2011 by a Department of are best for state. At the same time, online contests Justice (DOJ) opinion that paved the like Daily Fantasy Sports (DFS), which America today. way for states to legalize and regulate offer cash prizes to players based on certain forms of online gambling, as individual athletes’ game statistics, several have done. At the same time, became a multi-billion dollar industry it spurred opponents of expanded virtually overnight. Ads for DFS run gambling to push for a federal constantly on radio and television, and prohibition of online wagering. The are splashed across city buses. Even fragile legal status of online gambling professional sports leagues, which generally, and of fantasy sports betting have long opposed offline sports particularly, has resulted in responses betting, have sponsored or partnered from lawmakers, gaming regulators, and with Daily Fantasy sites. state attorneys general that range from The controversy surrounding the embracing legalization and regulation widespread activity of fantasy sports to calls for outright bans. betting is prompting federal and state In Nevada, where almost all forms lawmakers to ask what kind of gambling of wagering are legal and regulated, regulations are best for America today. including online poker as of 2013, the Titch and Minton: Game Changer 3 CEIAnalysis-Titch:Layout 1 5/10/2016 4:25 PM Page 4 state gaming commission ruled in excluded “fantasy or simulation October 2015 that DFS games sports game” from its definition constituted illegal gambling unless of gambling (known as the operators received a gaming license.2 “UIGEA carve-out”); • The right of state governments In November 2015, Massachusetts to regulate gambling, commonly Attorney General Maura Healey said understood as belonging to the DFS is legal gambling, but has proposed powers reserved to the states by a series of regulations.3 the 10th Amendment of the In contrast, the same month New York U.S. Constitution; Attorney General Eric Schneiderman • The 2011 Department of Justice declared DFS to be illegal gambling memo that told states the Wire and ordered the shutdown of all DFS Act does not prohibit intrastate activity in the state.4 Since then, online gambling, as long as it attorneys general in Illinois, Texas, remains within the state. In the Hawaii, Mississippi, Georgia, and same memo, however, the DOJ Vermont have issued advisory or reiterated that the Wire Act still non-binding opinions that DFS is illegal, applies across the board to sports but have made no further moves to betting. Many argue that DFS is stop DFS operations.5 a form of sports betting. • Current efforts in Congress to Meanwhile, state legislatures have advance the Restoration of gotten busy. Kansas was the first state America’s Wire Act (RAWA), to legalize DFS in May 2015. Virginia which would amend the 1961 followed in March 2016. As of late Federal Wire Act to nationally April 2016, bills to legalize or regulate prohibit most forms of online DFS were pending in at least 32 states. wagering; In seven others, DFS legislation either • A record of legislative
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