Fantasy Baseball and the Long Arm of the Law: Could you be in an illegal roto league?

It’s the cops again. This time, they’ve got a warrant. You’ve flushed the
heroin, buried the bodies, and, hey, she said she was 21 and how could you have
known her real age? You are under arrest anyway, charged with gambling and
bookmaking. You are a fantasy leaguer.

Now that you’ve hired me as your lawyer, I’m going to explain the law to you.
(I don’t usually do criminal defense work, but my ethical standards require me
to take the large retainer you’ve offered.)

Before I go further, a little background. There is very little (probably no)
binding case law on betting on fantasy leagues, and all of the following
interpretations are my opinion. So if I misguess and you go to trial and lose,
don’t sue your poor lawyer. I’ve also deliberately simplified some of the
analysis. I welcome correspondence on this from any interested person.

Before we get to the actual law, we should review how you got arrested in the
first place. The cops, surprisingly enough, are too busy solving murders and
giving David Letterman and yours truly traffic tickets to go out and arrest you
for being in a fantasy league. However, you were turned in by one of your close
personal friends. Perhaps your charming ex-girlfriend had a beef with you, or
maybe it was that guy who dropped out last year after you perpetrated The Great
Radke Ripoff at the end of 1996. I don’t know who ratted you out, but the
police will typically, reluctantly investigate any criminal complaint that is
aggressively pursued. And now they’ve got you.

There are three main portions of any state law of which you may run afoul. The
first is gambling. Betting is not generally illegal — it is always legal to
bet on who won the 1980 AL batting title — but certain restrictions on some
types of betting are present in every state, even Nevada. Whatever is illegal
is usually called “gambling.” The second portion is sports betting. There are
very fine points of law on whether a sports-related bet might be legal depending
on the specific wording of the statute and the nature of the bet, but in general
betting on future sporting events or sub-events (like whether Chicken Chow Mayne
will out-homer Flinn-Flam) is illegal. The third is bookmaking or gambling
promotion, which will normally apply to the commissioner or treasurer, but can
apply to all members if your league is considered a “gambling enterprise” or the
like.

For your case, we have to figure out what state we are in. It makes a big
difference, because each state has its own gambling statute. If we’re in
Nevada, we probably don’t have a problem. I’m going to look primarily at Texas
law, because I think it’s representative and also not overly complicated. Since
I’m from California, I’ll also give a short analysis of the complicated
California law.

Texas’ gambling laws are written in very plain language and are not particularly
difficult to interpret. In Texas, you can have a poker game at your house, and
you can play golf for money, and I’ll bet on that being right. But despite
their simplicity, the application to fantasy is a little complicated.

First the easy part: your league’s commissioner is probably guilty in Texas of
gambling promotion for selling chances based on player performance. If there is
direct payment of fees by losers to winners, he would probably avoid that.

However the whole “selling chances” problem may affect all league members. Who,
exactly, is “selling” the chance? The purchaser of the chance is not covered,
but the seller is. Who is selling? Arguably, each member of the league.
Uh-oh.

Additionally, you are all probably guilty of gambling promotion for “a scheme
between three or more persons to receive, record, or forward a bet or offer to
bet.” You might avoid this by not talking to anyone else about receipt or
recordation of league money. Note that as much as this sounds like advice to
cover up a crime, it isn’t; I’d never advise a anyone to do that. But in this
case the recordation or planning of same is the crime; I am advising you not
to commit that crime.

Next the hard part: Are you guilty of gambling? The answer depends on several
factors. If you held your draft or your payoff party in a public place (like a
restaurant), you’re guilty. If you have a keeper league where an expansion team
came in at some point, you’re guilty. If you have a rotation draft, you’re
guilty. Auction draft? That’s OK. If there haven’t been any expansion teams
or you are in a year-to-year league, you have a defense if you didn’t run afoul
of any of the above. “Of course!” you say. “How obvious. But for the benefit
of Gary Huckabay, could you explain the reasoning behind that?”

If everyone’s got an equal shot and you stay away from public places, you can
avoid gambling (but not gambling promotion) charges with Texas’ affirmative
defense. Rotation drafts give an advantage to some player(s), while auctions
don’t. Expansion teams don’t have the same chance as existing teams.

So, it’s time to go to the plea bargaining table. You won’t spend too much time
in jail.

Drifting over to California, the law is somewhat more arcanely worded. My
strong belief is that you do not run afoul of the betting-type gambling law
because fantasy leagues are primarily a game of skill (which is probably the
test in California). There is non-binding case law which states that betting on
bridge is not illegal because it is primarily skill, and that’s a reasonable
parallel.

But again, the bookmaking and sports-bet portion of the exercise is more
problematic. Without going into a protracted analysis, you may be able to avoid
breaking the law if you don’t write it down when you receive the money.

My conclusion? Fantasy baseball, played for money, is illegal for at least some
of the participants in at least some states. So, try not to get arrested, but
if the cops come to arrest you, remain silent and get a lawyer. Don’t try to
explain that the complainant is just bitter because of the “Radke rip-off.”

See you at trial.

John R. Mayne is an attorney from Carpinteria CA, who primarily practices in the
areas of employment law, libel law, and victim rights. As far as fantasy
leagues, he also knows the Fifth Amendment to the Constitution. You can e-mail
him at redouble@lightspeed.net.