State has yet to determine legality of daily fantasy sports - Albuquerque Journal

State has yet to determine legality of daily fantasy sports

They’re baaaack.

While you probably won’t be overwhelmed with endless commercials from DraftKings and FanDuel to the same extent as last year, make no mistake. As today’s first full slate of NFL games take over TVs across the country, there will be another wave of advertisements for daily fantasy sports.

You’ll again see tempting 30-second spots trying to lure you to websites such as DraftKings and FanDuel where, for a small entry fee, you might be able to strike it rich picking the day’s top performing football stars.

Or, of course, you could lose your money, which based on the payout odds is the more likely outcome for participants. The sites are set up to take a portion of every entry fee as its way of making money.

The daily fantasy sports craze that surprised so many at this time last year by seemingly coming out of nowhere has now settled into a much quieter place on the national sports scene. But it does still exist and its legality, while clarified in some states around the country in the past 12 months, remains in a bit of a gray area in New Mexico.

“There isn’t a straight answer right now,” said House Majority Leader Nate Gentry, the Republican legislator from Albuquerque who was one of two lawmakers to introduce a bill last session to try to legalize, though with consumer protections in place, daily fantasy play in the state.

Nether of those bills – one in the House of Representatives and one in the Senate – was acted on during the 30-day session last winter, but both are likely to resurface next session.

“The federal government specifically says that it is not gambling,” Gentry added. “There is some legislation that dealt with the issue at the federal level and it said that, one, it’s not gambling for the purposes of federal law, and two, it kind of leaves it up to the states to make a determination on whether it’s legal or not. So right now, it’s still an open question.”

The Unlawful Internet Gambling Enforcement Act of 2006 determined they were an allowable game of skill as opposed to illegal sports gambling.

According to New Mexico’s Gaming Control Act, the definition of what constitutes prohibited gaming is “an activity in which, upon payment of consideration, a player receives a prize or other thing of value, the award of which is determined by chance even though accompanied by some skill.”

According to the website, which tracks state-by-state legislation for both sports gambling and daily fantasy sports (DFS), there are 10 states in which DFS sites are not allowed. There are five others in which some operators have pulled access to residents based on existing laws or pending litigation.

New Mexico, however, is one of 35 states LegalSportsReport lists as “All, or almost all, (daily fantasy site) operators are active in the state.”

But that doesn’t mean it’s legal in New Mexico.

“Our position is unchanged from our discussion last year,” said Donovan Lieurance, acting executive director of the New Mexico Gaming Control Board. “DFS is not authorized under the Gaming Control Act.”

No, it isn’t authorized in the act, but as some would point out that is because it isn’t addressed at all. The New Mexico Gaming Control Board views it as being illegal since it is not specifically authorized.

So is clarification coming?

“The Office of the Attorney General thoroughly reviews all opinion requests and this matter is still under review,” said James Hallinan, communications director for AG Hector Balderas’ office. “We will have a public update as soon as the opinion is delivered to Speaker (Don) Tripp.”

The Governor’s Office deferred the Journal’s request for comment to the New Mexico Gaming Control Board.

As for Gentry, he likely will introduce another bill that seeks clarification on the issue, while also setting up basic regulations for operators.

“I believe it’s not gambling,” Gentry said. “My bill I introduced last session sought to clarify that it’s not gambling, but it also created a consumer protection element to online fantasy sports.”

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