Is It Legal To Play In NFL Survivor Pools For Money?Marc Edelman in Forbes, September 04, 2013
Yesterday, I discussed why in a majority of states playing traditional forms of fantasy football is probably legal.
Some readers then asked if playing in NFL survivor pools, which involve picking the winners of one NFL game per week, is also likely legal.
The short answer to that question is “probably not.” (A far more detailed answer can be found in my 2011 Harvard law journal article, “A Short Treatise on Fantasy Sports and the Law“).
Unlike traditional forms of fantasy football, pay-to-enter NFL survivor pools may reasonably run afoul to three different federal laws.
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The first federal law that seems to prohibit pay-to-enter NFL survivor pools is the Interstate Wire Act of 1961. This act disallows individuals from “engaging in the business of betting or wagering [through the knowing use of] a wire communication for the transmission in interstate or foreign commerce.” According to one 1999 New York State court decision, the proper definition of “wire communication” includes not only communications that take place over the telephone, but also those that occur via the Internet. Thus, online NFL survivor pools that collect entry fees and pay prize money would technically seem to be prohibited by this act.
A second federal law that seems to prohibit pay-to-enter NFL survivor pools is the Professional and Amateur Sports Protection Act (“PASPA”). Passed in 1992 at the behest of America’s five premier professional sports leagues (and currently being challenged in the courts by the State of New Jersey), PASPA makes it illegal for any private person to operate a wagering scheme based on a competitive game in which “professional or amateur athletes participate.” Of course, PASPA includes a grandfather clause that exempts previously authorized government sponsored sports gambling in four states – Nevada, Delaware, Oregon, and Montana. However, PASPA doesn’t include any other pertinent legal carve-outs.
Finally, a third federal law that may disallow pay-to-enter survivor pools is the Unlawful Internet Gambling Enforcement Act. This act, which was passed most recently in 2006, makes it illegal for those “engaged in the business of betting or wagering” to “knowingly accept” funds in connection with the participation of another person in unlawful Internet gambling. Although the UIGEA offers a special carve-out provision for “fantasy sports,” this carve-out only applies to those games where winning outcomes are not based on the final score of actual game results. Thus, the carve-out likely does not apply to NFL survivor pools given that participants are required to select the winners of actual games – thus making the NFL’s actual game results into the source of the contest outcome.
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Based upon a technical application of these three laws, playing in pay-to-enter NFL survivor pools are very likely illegal — even in states where traditional fantasy football may be legal.
Thus, when debating between entering a fantasy football league or an online survivor pool, playing fantasy football in a majority of states seems to be the legally safer choice.