States vary wildly in how they define gambling.
"Each state has its unique constitutional structure, statutory structure and case law, thereby rendering different conclusions," Rhode Island Attorney General Peter F. Kilmartin wrote in a Feb. 4, 2016, letter to Governor Gina Raimondo.
According to two formal opinion letters that were recently made public in the ongoing New York litigation -- one sent to DraftKings executive Tim Dent in 2013 and another sent to FanDuel CEO Nigel Eccles in 2014 -- there are four general categories of states.
"States fall in to four groups: states that ban contests where chance is a predominant or significant factor, states that ban contests where chance is a material factor, states that ban games with 'any' degree of chance and states that ban all cash games regardless of skill or chance," lawyers wrote in the letter to FanDuel.
Court documents in New York indicate that just under half of the states fall into the "predominance" test category, the largest group by far.
"Most states use the predominance test when assessing the existence of the gambling element of chance," the 2013 letter stated to DraftKings. "In other words, if the element of skill in a particular game predominates over chance, then the game is permitted." With federal law noting that individual states have the "primary responsibility" to determine which activities constitute gambling within its borders, a diverse mash-up of laws has emerged through the decades. The result is that lobbyists for the fantasy industry probably won't be able to use a one-size-fits-all approach in the years ahead. The lack of guidance from court cases makes the diverse landscape tough to navigate, too.
"No court has directly addressed whether fantasy sports contests are games of skill," the 2014 letter stated to FanDuel.
