Is DFS Legal In Florida? Even The State Gaming Commission Isn't Sure
And now, a short and non-exhaustive list of questions one can safely say “probably not” to when asked:
– “Are you going to Smelly Jim’s party next Saturday night?”
– “Do you want to go to an eight-hour opera?”
– “Did you figure out how to turn lead into gold?”
And now, a short and non-exhaustive list of questions one should never say “probably not” to, especially if you’re a government regulatory agency tasked with overseeing gambling in the state of Florida:
– “What about wagering on fantasy sports? Is that allowed?”
The actual answer to that question, on the Florida Gaming Control Commission’s website, is as follows, italics mine: “Again, probably not. Unless you are placing a wager through sportsbooks operated by or in conjunction with the Seminole Tribe of Florida, you are most likely placing an illegal wager.”
This FAQ followed a question about betting on sports in general, and the answer there was only slightly more firm: “Generally, no,” it read, before going into the Seminole Tribe verbiage.
These questions and answers popped up on the site in the days after the commission sent cease and desist letters to Underdog, PrizePicks, and Betr, saying that “Under Florida law, betting or wagering on the result of contests of skill, such as sports betting, including fantasy sports betting, is strictly prohibited.”
As of this writing, those sites – and other daily fantasy sites such as FanDuel and DraftKings, which didn’t receive the same letters, at least not yet – are still operating in Florida.
But clearly, the state gambling commission seems like it is gearing up to attempt to put the kibosh on daily fantasy sports – while still kinda-sorta wondering themselves if it’s even legal in the first place.
Is DFS doomed in Florida?
“I think the Commission’s answer reflects the fact that there is disagreement over whether fantasy sports are legal,” said Bob Jarvis, a constitutional law professor at Nova Southeastern University in Davie, Florida. “Personally, however, I don’t see there being ambiguity.”
In fact, Jarvis says daily fantasy sports are 100% illegal in the state.
“Florida law is unique because it expressly prohibits gambling on both games of chance and games of skill (see Fla. Statutes 849.08. and 849.14 ),” Jarvis wrote in an email. “As a result, fantasy sports are clearly illegal under Florida law. While this has not been tested in court, there is a 1991 Florida Attorney’s General Opinion (AGO 91-03) that specifically says they are illegal due to 849.08 and 849.14. The Florida Legislature has tried several times since 2016 to pass a bill authorizing fantasy sports, but each time the bill has failed to win passage.”
As a result of this, Jarvis believes daily fantasy sports as we know them are doomed in Florida.
“I think the future is clear: Fantasy sports will be legal in Florida, but only when offered by the Seminoles,” he said. “As part of the 2021 compact, the Florida Legislature passed a law specifying that the Seminoles could run such contests (see Fla. Statute 285.710(13)(b)6), and I have no doubt that as soon as the current lawsuits over sports betting are resolved the Seminoles will begin offering both.”
Not so fast…
But another lawyer sees this differently.
“I think the cloud over fantasy sports in Florida is vastly overstated and overrated,” said Daniel Wallach, a noted sports betting legal expert. “And I believe a Florida court would find regular fantasy sports contests to be legal, based on the authority of White vs. Cuomo and the Dew-Becker vs. Wu decision.”
In the former, the New York Court of Appeals determined that fantasy sports aren’t gambling. In the latter, the Illinois Supreme Court ruled that DFS contests are games of skill.
“Based upon how courts across the country have viewed daily fantasy sports contests, notwithstanding any earlier attorney general opinions in Florida, I think courts would recognize the legality of traditional DFS,” Wallach said.
In the end, though – and the end could be years, if not a decade or more away – Wallach recognizes there’s more to the stew.
“I think the outcome in Florida is a blend of the political, the monopoly {that the Seminole Tribe has over gambling}, and difficult case law, which has always left some of these questions somewhat open-ended,” Wallach said.
And that “somewhat open-ended” has yielded a “probably not” appearing as an answer to a legal question on the website of the Florida Gaming Control Commission.
Emails to the commission went unanswered.