Gambling on fantasy sports, including the daily fantasy sites that have boomed in recent years, is legal under West Virginia law, according to an opinion issued by Attorney General Patrick Morrisey.
Morrisey concluded that the betting games — in which sports fans act as general managers, creating their own fantasy teams populated by real athletes — are permissible under state law because they are mostly games of skill, not chance.
“We read state law to prohibit only betting upon games decided at least predominantly by chance,” Morrisey wrote in his 14-page opinion. Fantasy sports, he said “are determined predominantly by skill, knowledge, and athletic performance.”
Fantasy sports have been around for decades, but daily fantasy sports, in which players choose new teams weekly or even daily and usually pay to participate and to win cash prizes, have only taken off in the last two years.
As daily fantasy has become a multi-billion dollar industry, legal battles have raged on a state-by-state basis as to whether or not it constitutes illegal gambling.
The West Virginia Lottery Commission said last year that it would allow betting on fantasy sports to continue and watch how the issue played out in other states before taking any action to regulate it. John Myers, the commission’s acting director, also said it likely would not take any action without first getting an opinion from the attorney general.
Morrisey’s opinion, released Monday, came at the request of Senate President Bill Cole, R-Mercer. A bill that would have explicitly authorized fantasy sports betting in West Virginia narrowly passed the Senate this year, but stalled in the House.
There are 10 states that do not permit betting on daily fantasy sports, according to Morrisey’s opinion.
In New York, most prominently, the two biggest daily fantasy companies FanDuel and DraftKings agreed to halt operations after a lawsuit filed by the state attorney general.
A bill to legalize betting on daily fantasy sports passed the New York legislature last month and is waiting for the governor’s signature.
With millions of dollars at stake in every state that bans betting on fantasy sports, FanDuel and DraftKings have unleashed a multi-million dollar lobbying push to legalize or clarify the legality of their business.
The two companies employ 78 lobbyists in 34 states, according to the Wall Street Journal, and in 16 states bills have been introduced to offer legal protection to the companies.
In 2016, the two companies had, for the first time, two lobbyists in West Virginia: Michael Basile, a lawyer with Spillman, Thomas & Battle, and Greg Thomas, a longtime Republican consultant and operative.
The bill proposed in West Virginia stated explicitly that fantasy sports games with monetary payouts are legal, but was careful not to call them betting or gambling. Basile was the only person to speak when it was debated in a Senate committee. It narrowly passed the Senate, 18-16, with bipartisan support and opposition.
Supporters argued that the Legislature should make it clear that the business was permitted in West Virginia. Opponents argued that other forms of legal gambling are regulated and taxed in West Virginia, and there was no reason to rush to pass a law.