Virginia Attorney General Believes Pick’em Contests Align as Sports Betting and Not DFS

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In an aerial view, the Virginia State Capitol is shown on July 12, 2023 in Richmond, Virginia.

There are several daily fantasy sports (DFS) companies offering pick’em style wagering that resembles a sports betting parlay much more than it does a DFS contest, according to a recent opinion written by Virginia Attorney General Jason Miyares.

Pick’em Bets Belong in Sportsbooks

DFS sites like PrizePicks, Sleeper, and Underdog Fantasy all offer pick’em style wagering offers and they resemble parlays that one would see at an online sportsbook more so than a DFS contest, where participants play against each other and not the site.

And that distinction is what Virginia Attorney General Jason Miyares believes distinguishes these pick’em parlay offerings from a DFS contest. Should this opinion be accepted by the Virginia General Assembly, it could lead to a rule change that would ban DFS platforms from offering them in the state.

Attorney General Miyares wrote his opinion at the behest of state Delegate Wren Williams. In the opinion, he wrote the following:

“A plain reading of the statutory definition of ‘fantasy contest’ thus reveals three key elements. In simplified terms, they are 1) prizes are established and known in advance of the contest; 2) participants compete against each other and winners are determined based on accumulation of statistical performance; and 3) outcomes are not based on actual, single-game performances or event results. 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.”

This opinion is shared by many legal scholars and those whose job is to enforce state law. Fantasy sports companies like PrizePicks and Underdog Fantasy have both received cease-and-desist letters from regulators in Arizona, Florida, Maine, and Mississippi regarding the pick’em “contests” on their menus.

Coalition Disagrees

PrizePicks, Sleeper, and Underdog Fantasy all belong to an industry advocacy group called the Coalition for Fantasy Sports. And it is not surprising there was a difference of opinion concerning the Attorney General’s interpretation of the law.

Allison Harris, a spokesperson for the Coalition for Fantasy Sports, stated, “We disagree with the Attorney General’s opinion and look forward to continuing our positive working relationship with our governing agencies in the Commonwealth of Virginia. The opinion does not supersede the licensing process in place as established by the Virginia General Assembly. … Our member companies are licensed and continue to operate legally in Virginia.”

Although Miyares wrote “individual contestants not competing against each other is critical to this determination,” and it wasn’t the sole reason why he believes these contests should be considered sports bets.

Miyares said, “…to the extent contest results hinge solely on individual performance metrics stemming from a single sports event, the contest also falls outside the definition of ‘fantasy contests’ and instead constitutes sports betting.”

At this point, the fantasy sports operators can continue to operate as they have been, but should the legislators decide to take action, it could spell the beginning of the end of pick’em contests in a fantasy format in Old Dominion.