United States: Recent Developments Concerning The Legality Of Daily Fantasy Sports In Texas, Vermont And Maryland


On Tuesday, January 19, 2016, Texas Attorney General Ken Paxton issued an advisory opinion that a Texas court would likely determine that participating in daily fantasy sports contests is illegal gambling under Texas law. Tex. Att'y Gen. Op. No. KP-0057. Specifically, the Texas AG advised that in Texas, illegal gambling occurs when a person “makes a bet on the partial or final result of a game or contest or on the performance of a participant in a game or contest.” TEX. PENAL CODE § 47.02(a)(1).  Additionally, under Texas law, a “bet” means “an agreement to win or lose something of value solely or partially by chance.”  Id. § 47.01(1). Therefore, citing a prior conclusion of the AG (that it is “irrelevant” whether “poker is predominantly a game of chance or skill…if an element of chance is involved…it is embraced within the definition of bet,”), the AG concluded the amount of chance involved is similarly irrelevant to whether participants in DFS contests “bet” under Texas law, as long as at least an element of chance is involved.  The attorney general opined that it is “beyond reasonable dispute” that daily fantasy leagues involve an element of chance, and thus, it is likely a Texas court would conclude the activity is illegal gambling. 

The advisory opinion rejected arguments that the statutory exemption to “bet”—for "an offer of a prize, award, or compensation to the actual contestants in a bona fide contest for the determination of skill[.]—applied to daily fantasy contests." TEX. PENAL CODE§ 47.01(1)(B). While the advisory opinion acknowledged Texas courts have yet to address this exclusion, one prior attorney general opinion in 1994 evaluated whether the exclusion applied to participants paying an entry fee for a chance to win prizes in a contest forecasting the outcome of approximately 150 sporting events, which required "using the skills necessary to analyze relevant data, including, but not limited to, point differentials…weather conditions, injuries or other factors." Tex. Att'y Gen. Op. No. L0-94-051, at 1. That 22 year-old opinion  concluded that the exclusion “may embrace athletes actually competing in the sporting events,” but “does not embrace those who pay entry fees for a chance to win a prize from forecasting the outcome of the events." Id. at 2.

Attorney General Ken Paxton noted that his office’s interpretation of the exemption “remains unchanged,” providing an example distinguishing a person who plays in a golf tournament for an opportunity to win a prize from a person wagering on the performance of that golfer.  To interpret the exemption as some DFS operators suggest—that DFS managers are the actual participants in the contests—would “have that exception swallow the rule.”


While the Vermont Attorney General’s office has not issued a formal opinion or taken any other legal action related to DFS, in a recent interview discussing a Vermont bill that would exempt fantasy sports from the state’s anti-gambling laws, John Treadwell, a state assistant attorney general, stated that “daily fantasy sports violate Vermont’s gambling laws.”  Mr. Treadwell noted that, “Vermont has very strict long-standing limitations on gambling,” which ban wagering on both games of chance and of skill, prohibit collection of gambling debts, and allow people who lose money in bets to sue to recover their losses.  As for the bill introduced to exempt daily fantasy sports from Vermont’s gambling laws—Mr. Treadwell stated that giving “special status” to one form of gambling over another “does not seem appropriate.”  However, the attorney general’s office has not taken any formal action on the issue, and the legislature continues to consider the bill. 


Maryland passed a law in 2012 explicitly making real-money fantasy sports legal, using language from the Unlawful Internet Gambling Enforcement Act. However, an advisory opinion issued by the Maryland Attorney General’s office on January 15, 2016 explored whether the 2012 law was enacted according to proper legislative procedure. Specifically, the attorney general’s office responded to a question regarding their “view as to whether Chapter 346 of 2012, which exempted fantasy sports from the prohibitions against betting, wagering, and gambling contained within Title 12 of the Criminal Law Article, had the effect of expanding commercial gaming and thus should have been subject to referendum” under the Maryland Constitution. 

This question depended on three underlying questions: (1) Does the fact that the fantasy exemption was included in Title 12 of the Criminal Law Article exempt it from the referendum requirement since it does not apply to “gaming conducted under Title 12”?;  (2) If not exempt, did the law authorize both daily and traditional fantasy sports; and (3) Do fantasy sports qualify as “commercial gaming” such that their authorization triggers the referendum requirement.

The opinion notes that the answers to the foregoing questions are “close calls” with no clear answer.  The analysis is complicated given: (1) statutory language and legislative history that “conflict in critical aspects,” (2) given the large number of fantasy sports platforms, it is difficult to address the subject in a broad conclusion, and (3) there are few judicial opinions addressing daily fantasy sports, and none in Maryland. 

In the attorney general’s “belief,” subject to the foregoing caveats, the “better answer to each question” leads to the conclusion that there should have been a referendum in order to authorize daily fantasy sports.  This “belief” was not only subject to the caveats mentioned above, but also includes a statement that “due to the substantial uncertainty surrounding these issues and because the legislative history surrounding Chapter 346 suggests that the focus of the debate in the General Assembly in 2012 was not on the regulation of daily fantasy sports, we recommend that the Legislature squarely take up the issue this session and clarify whether daily fantasy sports are authorized in Maryland.” In other words, the advisory opinion acknowledges the uncertainty in the law, and suggests that legislature should resolve that uncertainty.    

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Karl F. Rutledge
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.