Mass. Gaming Commission: Daily Fantasy Sports May Still be Illegal Despite Regulation Proposal

On January 11, 2016, the Massachusetts Gaming Commission released a report questioning the legality of daily fantasy sports (DFS) under state laws. The report, called the “White Paper on Daily Fantasy Sports,” was issued the day before the public hearing on Mass. Attorney General Maura Healey’s proposed regulations. In November 2015, Healey proposed consumer protection regulations for DFS rather than banning companies’ operations altogether.

In sum, the Commission argued that while regulations may protect consumers, they do not change the fact that DFS may still be illegal under Massachusetts law. Therefore, the Commission explained that the legality of DFS may need to be settled by the legislature before regulations are put in place. The paper stated the following:

While these proposed regulations will mitigate many of the potential harms harms of DFS, the state legislature possesses the singular power to clarify any remaining legal ambiguity with appropriate legislations. From our own review of gambling statutes currently in effect in the commonwealth and from our review of the opinions of other interested parties, we believe that DFS does implicate certain provisions of existing civil and criminal statutes. However, while it could be construed that DFS is arguably illegal under existing Massachusetts law, the balance of Massachusetts law may make that reading illogical.

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