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Food for Thought: Is Fantasy Football Legal?

Turkey or Ham with Stuffing, the Key to Determining if Fantasy Football is Legal!

Let me ask you a very simple question:  On Thanksgiving, would you rather have turkey or ham with stuffing?  The way the above question is interpreted is indicative of whether fantasy football is legal in Michigan. Let me explain.

To determine if fantasy football is legal, both federal law and state law must be considered. Under Federal Law, season-long fantasy football is legal because the Unlawful Gambling Enforcement Act of 2006 specifically exempts it from the definition of betting and wagering.

In Michigan, however, the law is not as clear.

MCL 750.304 prohibits any person from registering a bet or buying or selling a pool upon the result of a trial or contest of skill, speed, or endurance, or upon the result of a game, competition, and political nomination. Based solely upon the above referenced statute, one could conclude that fantasy sports are illegal in Michigan.

There are, however, multiple arguments that could be made to rebut this conclusion. One could argue that the statute uses the word game, which is singular, and therefore does not apply to season-long fantasy sports, which is a compilation of multiple games. Additionally, the phrase “upon the result of a” qualifies the list of prohibited activities and could be interpreted to mean that one may not wager on the outcome of one specific event, but not necessarily that one may not wager upon the results of multiple sporting events. These arguments, though, are uncertain.

Maybe the exceptions stated in MCL 750.310 will provide some guidance and clarity. The statute states, “[t]his chapter shall not be construed to prohibit or make unlawful the operation of a game of skill. . .” The federal government has defined fantasy sports as a game of skill, so we are good to go, right? Maybe. Unfortunately, a definition in a federal statute does not apply to a state statute, and so we can’t automatically come to this conclusion until the Michigan Supreme Court has interpreted MCL 750.310.

There is, though, a very strong argument that fantasy football is in fact a game of skill. One must draft a good team, make trades throughout the year, sign “free-agents” throughout the year, and make weekly roster decisions. If it is not a game of skill, why do so many fantasy geeks conduct hours and hours of research? In fact, that is why most leagues have habitual losers (who might have to wear a dress or do some other embarrassing act).

But even if we can successfully conclude that fantasy football is a game of skill, there is yet another hurdle we must overcome, which brings us back to my original question, would you rather have turkey or ham with stuffing on Thanksgiving?

When you read the above question, did you think that you could either 1.) have turkey or 2.) ham with stuffing; or did you think you could have either 1.) turkey with stuffing or 2.) ham with stuffing?

If you chose the first choice of answers, your interpretation of the absent comma would mean fantasy sports in Michigan is likely legal. If you chose the second choice of answers, your interpretation would mean fantasy sports in Michigan is likely illegal.

MCL 750.310 states, “This chapter shall not be construed to prohibit or make unlawful the operation of a game of skill or chance pursuant to the Michigan Exposition and Fairground Act. . .” The statute can be interpreted in one of two ways. First, the following is not considered gambling in Michigan: 1) games of skill; or 2) games of chance pursuant to the Michigan Exposition and Fairgrounds Act. If this is the interpretation, fantasy sports are likely legal in Michigan.

The second way the statute could be interpreted is that the following is not considered gambling in Michigan: 1) games of skill pursuant to the Michigan Exposition and Fairgrounds Act; or 2) games of chance pursuant to the Michigan Exposition and Fairgrounds Act. If this is the interpretation of the statute, fantasy sports are likely illegal in Michigan. The reason being that fantasy sports are not specifically listed as a game of skill under the Michigan Exposition and Fairgrounds Act.

The Michigan Supreme Court has stated,” The Legislature’s use of the disjunctive word ‘or’ indicates “an alternative or choice between two things.[1] Applying the above precedent, the use of the word “or” in MCL 750.310 arguably results in the former interpretation being the correct one, and thus a game of skill being legal.

Usually, Courts interpret a statute as written and according to the plain meaning of the statute. If, however, using the plain meaning of the statute would make the statute meaningless or contrary to other statutes, the Courts will often interpret the statute in a way to give effect to the intentions of the legislature. A Court may determine that excepting all games of skill from the prohibitions of gambling would essentially nullify MCL 750.304. The Court could reason that if the legislature did not want games of skill outlawed, they wouldn’t have referenced a game of skill in MCL 750.304.

In the end, the only thing that is clear is that the legality of fantasy sports in Michigan is not clear.

To date, there has been two different attempts by state representatives to clarify the legality of fantasy sports.  Neither bill, however, has come close to becoming a law.  The most recent attempt at legalizing fantasy sports was by Rep. Aaron Miller, of Sturgis. The bills he authored are still pending in the House of Representatives. I encourage any fan or player of fantasy sports to contact your local representative and urge them to clarify the legality of fantasy sports. Legal or illegal, everyone should be afforded the courtesy of knowing what they can and cannot do.

If you need assistance in determining whether an activity is legal, whether it be under federal, state or local law or ordinance, please contact an attorney at HaasCaywood PC, and we would gladly assist you.

 

[1] Covenant Med Ctr, Inc v State Farm Mut Auto Ins Co, 500 Mich 191 (2017).

Blog 3 – Zachary W. Stempien


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