Melone takes no position on whether states should allow these contests.
Daily fantasy sports is a new development, an offshoot of the much older season-long fantasy sports contests. The advent and growth of daily contests is attributable to both technological developments—for example, cloud-based technology on mobile phones—and the ingenuity of industry participants who recognized the appeal of the immediacy of daily contests in contrast to the delayed gratification of season-long contests.
FanDuel and DraftKings let people use an app to pick a fantasy team on a Sunday morning for a one-day league. By Sunday night, you know if you won. Similar one-day leagues are offered for almost every major sport. This quick-and-easy sports fantasy game for money is luring millions of new players each year.
The growth of daily fantasy sports has not gone unnoticed by legal authorities. Attorneys general in a number of states, including New York, Illinois, Texas, and Massachusetts have begun to question the legality of these daily fantasy games. State authorities have asserted that daily fantasy sports contests are predominately games of chance and have drawn a distinction between daily and season-long contests by not challenging the legality of season-long contests.
Fantasy sports industry executives assert that daily fantasy games are predominately skill-based. Moreover, they further posit that a fantasy sports carve out in a federal law, the Unlawful Internet Gambling Enforcement Act, supports their position. That law, aimed at preventing payment processors such as credit card companies from funding online gambling activities, contains a specific exemption for fantasy sports contests that meet certain standards. Melone believes that the focus on the skill-chance dichotomy is misplaced.
In addition to the practical difficulties in determining whether success is predominately due to skill or chance, this focus is not helpful when it comes to fantasy sports. Skill-based activities are favored because they provide incentives to acquire skills that society purportedly values. Moreover, skill tends to be a barrier for unskilled players, thereby providing some protection from abuse.
However, even if one concedes that some socially desirable skills are implicated in fantasy sports—such as the ability to manage a budget and parse data—these skills can be acquired easily in more benign pursuits. Fantasy sports contests are risk-creating activities and should, therefore, be deemed a form of gambling, Melone said.
Supporters of fantasy sports often argue that financial market activities implicate similar issues as fantasy sports. That analogy is misguided, he said. The vast majority of financial market activities shift existing risks among different parties but do not create risk. Admittedly, he said, some financial market transactions do create risk—two-sided speculation with derivatives, for example.
After , there should be very little doubt of the damage that may be done by financial market excesses. However, Melone said, if one agrees that certain financial transactions are socially undesirable, that merely points to the need for greater regulation of financial markets and not to the allowance of fantasy sports. The fact that society tolerates one harmful activity is not a reason to tolerate another, he said.
Melone used an example to illustrate the futility of the skill-chance test. Mastery of calculus is a skill-based pursuit. Imagine the uproar if a professor at the university established a system whereby students could wager significant sums of money against each other based on exam results. Is there any doubt such wagers are gambling despite the fact that what is being wagered upon is a skill-based activity? An open question is whether states can authorize fantasy sports.
The Professional and Amateur Sports Protection Act, a federal law which prohibits states from authoring sports betting except for grandfathered activities in certain states such as Nevada , may hamper states. The law prevented New Jersey Gov. Chris Christie from instituting sports betting at New Jersey casinos. It is not clear whether fantasy sports are covered under this law, and it has never been tested. Fantasy sports offer little possibility in this respect. Melone believes the law should not prevent states from authorizing fantasy sports.
Technology and industry ingenuity have caused tremendous growth in fantasy participation. It's just because there is no clarity here. Both require skill, research. Fantasy sports is social inherently. Even if you are paying an entry fee. There is little hope at the moment for Arizona residents who love fantasy sports and gambling on games. But this shouldn't stop them from exercising their right to petition to modify that state-authorized law.
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