The Gray Area of Daily Fantasy Sports in Florida

By Gloria Vilela

Florida's strict policies on online gambling are well-defined in most areas, which makes the Sunshine State's ambiguous position on daily fantasy sports (DFS) even more noteworthy. It is not necessarily a surprise that fantasy sports occupy a gray area in Florida, as many states have a more complex position towards DFS websites than they do towards online casinos and sportsbooks. While DFS are not definitively outlawed in Florida, their lack of regulation means that it is generally advisable to avoid fantasy sports in the state.

The state of play for DFS in Florida

Over 20 states have explicitly provided permission for citizens to access DFS sites, and these states have also established regulatory bodies to oversee their use. This combination of legislation and regulation ensures that not only can residents in these states safely play DFS, but they also have procedures that they can follow in case of any impropriety. Similarly conclusive in their positions are the states that do not permit DFS sites to operate within their borders at all, such as Arizona and Idaho.

DFS sites are not technically prohibited from offering their services in Florida. Platforms like FanDuel and DraftKings are among the most popular DFS brands, offering fantasy sports options for all of the major sporting competitions in the United States. This includes the NBA, NHL, and NFL. With coverage of a wide range of sports, fantasy sports naturally gain a lot of traction among sports fans in the US.

Florida is one of the US' most passionate sporting states, home of iconic franchises like Miami Heat, Tampa Bay Lightning, and the Jacksonville Jaguars. While Florida residents can access sites such as FanDuel and DraftKings, they should do so with an awareness that lawmakers in the Sunshine State have not expressly approved their services. There has been little appetite for those lawmakers to change their approach, as in 2016 it was reported that 72% of Floridian voters were less likely to support a candidate in favor of expanding gambling in the state.

Is DFS regulation a genuine possibility?

This means that DFS in Florida remains in a position of limbo, with DFS sites able to conduct business in the state but with no regulation to keep players safe and secure. The experts at LegalBetting recommend that players should be wary of using DFS sites until regulation emerges, given that the history of gambling in Florida is one characterized by prohibitive laws. Online sports betting, online casino gambling, and online poker are all outlawed, with the Seminole Tribe commanding a monopoly on gambling in Florida at their physical casinos.

Any legislation on online gambling in Florida will require an agreement between the state and the Seminole Tribe, but there has been little progress on that front. Regulation for DFS may be easier to bring to fruition, although any change to the Floridian law on fantasy sports will have to contend with an unsupportive Attorney General statement. In 1991, the AG Robert Butterworth declared that fantasy sports contests should be outlawed because they contravene the state's laws on gambling.

The 849.08 statute in Florida law covers gambling: “Whoever plays or engages in any game at cards, keno, roulette, faro or other game of chance, at any place, by any device whatever, for money or other thing of value" is therefore participating in gambling. Butterworth's interpretation of 849.08 was that fantasy sports constituted games of chance played for money, and should therefore be considered illegal in the state. However, Butterworth's opinion never became legally binding.

While that has left the door open for DFS sites to operate in Florida today, Butterworth's opinion reflects Florida lawmakers' skepticism towards DFS regulation. Of course, fantasy sports in 2020 take a very different form to their equivalents in 1991. Now that the action has migrated online to platforms that facilitate secure transactions and serve players on multiple continents, DFS might stand a better chance of attracting state endorsement through the introduction of regulation.

The struggle to find an agreement

The biggest obstacle will be the Seminole Tribe's perspective on DFS, with evidence indicating that the tribe subscribes to AG Butterworth's opinion on fantasy sports competitions. In 2017, Jim Shore, the General Counsel for the Seminole Tribe in Florida, warned legislators that passing fantasy sports bills would be a violation of the tribe's gambling compact. Shore argued that this violation would give the tribe the leeway to halt revenue sharing payments to the state, with lawmakers unlikely to countenance risking income of over $200 million per year from the Seminole Tribe.

The Seminole Tribe is reported to be amenable to at least discuss some sort of resolution for DFS regulation, but the tribe ultimately holds all the cards in the quest to fully legalize fantasy sports in Florida. There has been little talk of DFS regulations since Shore's warning in 2017. The point of contention thus far in 2020 has instead been sports betting, although progress towards its legalization in Florida is believed to range from slim to non-existent.

That is because there is little incentive for the Seminole Tribe to sacrifice their monopoly on gambling, as the introduction of sportsbooks and online casinos would decrease their income. DFS may be perceived as less of a challenge to those revenues, given that fantasy sports competitions are different from anything that the Seminole Tribe offers in their physical casinos. For that to happen, Florida will have to resolve Butterworth's opinion and determine whether DFS should be subject to the same laws as gambling. Until then, fantasy sports will remain a gray area for Florida.