While sports, gaming, and gambling law are often grouped together, if you’re performing legal research on a recreational activity it is critically important to know whether or not this activity is typically considered “gambling” under the law. If it is, there will be many additional regulations for you to consider.
Gambling is often described as a “game of chance,” as opposed to a “game of skill.” However, what exactly constitutes chance or skill, as well as the ratio that determines whether an activity is gambling, varies significantly based on the jurisdiction.
Different jurisdictions have struggled to define these terms for many years. As early as 1848, it was determined that ten-pin (essentially an old version of bowling) was not a game of chance in State v. Gupton, so gambling laws would not apply. The given definition here is a game wherein the result “is determined entirely or in part by lot or mere luck, and in which judgment, practice, skill or adroitness have honestly no office at all, or are thwarted by chance.” This is an example of the commonly-used “predominant” test where gambling law applies to activities that are dominated by chance rather than skill. The other two tests that you may encounter are the “material” test, which is based on whether chance has a significant impact on the game’s outcome, and the “any chance” test, which is based on whether there is any luck at all involved.
Many more recent cases have argued about this issue, especially as new kinds of games emerge. Dew-Becker v. Wu was a 2020 case in which it was determined that, while fantasy sports betting (often referred to as “interactive fantasy sports,” or IFS) may involve chance, it is sufficiently skill-based that it is not considered gambling. White v. Cuomo similarly determined that fantasy sports were not gambling. In this case, however, the decision was largely based on deference to the New York State Legislature, which had passed a law authorizing IFS in spite of gambling being illegal in New York, stating “it is well-settled that legislative enactments are entitled to a strong presumption of constitutionality.”
One also has to consider federal law; since, unlike baseball, gambling is typically considered interstate commerce. There has been considerable debate over whether the Federal Wire Act (also known as the Interstate Wire Act) of 1961 applies to betting conducted over the Internet. And the “skill vs. chance” tests are not even the only factor that goes into defining gambling.
When researching a recreational activity where money is involved, one must tread carefully. Figuring out what is or is not gambling often requires sifting through a complicated web of jurisdictional splits and contradictory legislation.
Image credits:
0 Comments.