West Virginia AG unsure if against-the-house DFS games runs afoul of state law
The California Attorney General’s office offered a very strong take on the legality of daily fantasy sports (DFS) in the state, but the same cannot be said from a new opinion on DFS out of West Virginia.
West Virginia Speaker of the House Roger Hanshaw requested the opinion on whether or not PrizePicks’s against-the-house product is in violation of the law. The answer from Attorney General JB McCuskey amounted to: “it’s complicated.”
2016 DFS opinion based on a bill, not a law
This is actually not the first AG opinion out of West Virginia on the subject. The office provided an opinion in 2016, however much of that analysis was rooted in a piece of legislation that never made it into law, SB529. That piece of legislation specifically defined fantasy sports.
The West Virginia Lottery Sports Wagering Act, which became law in 2018, does not.
Hanshaw shared a letter from PrizePicks with McCuskey that argued its against-the-house product was legal based on the 2016 opinion, but was seeking clarity after the state lottery sent the group a cease and desist letter in 2022 claiming the product is tantamount to sports betting.
Last year, PrizePicks rolled out its peer-to-peer product, Arena, in the state, so the letter is addressing a product that no longer exists in the state, but also sheds some light on just how murky the definition of fantasy sports in the state is as it stands.
On its face, McCuskey said the single-player format is legally sports betting.
“PrizePicks calls a ‘wager’ an ‘entry fee,’ a ‘parlay’ a ‘Flex Play’ or ‘Power Play,’ and uses ‘more’ or ‘less’ rather than ‘over’ or ‘under.’ But we find these substitute terms are immaterial; the single-player game described in the letter and a parlay (or round-robin parlay) of players’ statistical propositions aresubstantively the same,” he noted.
However, the same law that defines sports betting in the state also explicitly notes that DFS is excluded from the definition of sports betting. But, with no concrete definition of DFS, McCuskey noted he is in legal limbo.
Within the regulations developed by the West Virginia Lottery, there is a definition of fantasy that has four main requirements:
- Participants must own, manage or coach an imaginary team and play against other people
- The prize pool is disclosed to participants in advance
- Outcome is predominantly determined by knowledge and skill of the participant
- More than one performance or event is involved
Lottery may not have the ability to define DFS
Seems clear, right?
Problem is, McCuskey is unclear whether or not the regulator has the authority to put forth a legally enforceable definition of fantasy sports in the first place.
“It’s unclear whether the Act’s grant of rulemaking authority extends to providing definitions to exclusionary terms,” he wrote. The current situation creates a catch-22.
“With that legal uncertainty in mind, it’s important that Daily Fantasy Sports are excluded from the definition of “sports wagering” in the Act. Because it’s excluded, the Legislature didn’t intend for DFS to be subject to the Lottery Sports Wagering Act and, by extension, the Lottery Commission’s rules and regulations for enforcement of the Act,” McCuskey explained.
McCuskey also cast doubt on the validity of the cease and desist the lottery sent PrizePicks, as the defninitions provided in the letter were based on the 2016 opinion, which was based on a bill that never became law. Since the letter is based on a definition in a law that never passed, the letter was, in McCuskey’s words, “legally dubious.”
He did offer one means to remedy the issue, which is to pass a bill through the legislature that clearly defines fantasy sports. Barring that though, with no legal definition of fantasy sports to rely on, his office says their hands are tied.
Despite the murky waters, PrizePicks was happy with the opinion’s conclusion.
“We are grateful for AG McCuskey’s detailed analysis, which confirms that we have always operated legally in West Virginia. West Virginia is yet another state to conclude that Arena meets the legal requirements to operate as a fantasy sports contest and is not a form of sports gambling,” a PrizePicks spokesperson told SBC Americas.
https://sbcamericas.com/2025/08/07/west-virginia-fantasy-opinion-2025/