Rhode Island Attorney General Writes Opinion in Support of Daily Fantasy Sports

On February 4, the attorney general of Rhode Island made a statement declaring his belief in the state legality of Daily Fantasy Sports. AG Peter Kilmartin has “undertaken a review of the operation of ‘Daily Fantasy Sports’”; his stance is wary, but generally in support of the contests as games of skill.

“Although we believe that DFS does implicate certain provisions of existing civil and criminal statutes, it is the opinion of this office that Daily Fantasy Sports may currently operate legally in the State of Rhode Island,” wrote Kilmartin in his opinion.

Kilmartin echoes the primary argument in support of DFS: it is a game of skill. “Recognizing that although the outcome of some games are purely based upon chance and others entirely on skill, it is clear that DFS, like most games, is a mixture of these factors….”

“Applying the ‘dominant factor’ standard, I do not believe that daily fantasy sports constitute a ‘game of chance’ and therefore, daily fantasy sports games to not constitute a lottery under Rhode Island law,” wrote Kilmartin.

Kilmartin’s statement could help defend DFS in more than just Rhode Island--as DFS companies have entered an era of seemingly constant legal challenges, challenges that vary uniquely by each state, the struggle revolves around establishing a solid definition of DFS as a “game of skill” or not. Indeed, Kilmartin admits that “there is no statute or case that deals on point with this issue,” but counters that “there is enough precedent to analyze and draw a conclusion.”

The Rhode Island Attorney General specifically mentions the famous New York case, where DFS giants DraftKings and FanDuel have been engaged in bitter debate with Attorney General Eric Schneiderman since November of last year. Kilmartin notes that Rhode Island law defines a “lottery” by an “especially high burden” of proof, one that exceeds Schneiderman’s estimate.

Kilmartin ends his statement with the desire to create adequate consumer protections for the industry, and to ensure that DFS helps benefit the Rhode Island treasury. “At a minimum, a high level of regulation should be established to ensure criminal elements do not infiltrate the game, youth participation is barred, addiction issues addressed and all attendant issues we have experienced with gambling in Rhode Island are vetted. It is also critical that any regulatory scheme reduce or eliminate the risk of economic harm to vulnerable players, promote the games’ transparency, and potentially generate revenue for the State.”