Is playing fantasy sports a skill or a gamble?

Fantasy sports, also called rotisserie sports, are online prediction games where participants assemble virtual teams of real players of a professional sport. You earn points based on real life statistics that are converted into fantasy points. The better your player performs in real life, the higher your fantasy points. The global fantasy sports market is growing by leaps and bounds. According to news reports, it’s expected to grow from $20.36 billion in 2020 to $22.31 billion in 2021 at a compound annual growth rate (CAGR) of 9.5%. The market is expected to reach $38.60 billion in 2025.

So, what’s fuelling this growth? It’s primarily due to the increasing youth population, penetration of smartphones, internet and the launch of fantasy sports applications.

‘Fantasy sports have 200 million users in India’

Speaking at a webinar on ‘Legal Regulation of Fantasy Sports Games’, organised by the School of Legal Studies, Apeejay Stya University (ASU), Gurugram, Abhinav said India is one of the fastest growing markets for fantasy sports. “In the last five years, the market has grown by close to 20% year-on-year and in sheer numbers we have exceeded the US market. The US has around 100 million users whereas in India the user base is close to 200 million users.”

Abhinav, who is a transaction and advisory lawyer with experience in Privacy and Data Protection, Sports and Gaming, Media and Advertising, Healthcare and Information Technology laws and regulations, said that the major law that caters to premium fantasy sports in India is the Public Gambling Act, 1867. “This British-era law criminalises gambling in any public forum in India. However, while doing so, it clearly distinguishes between games of skill and games of chance.”

Difference between game of skill and chance

He added, “Under the public gambling act as well as other allied state statutes, gambling is prohibited in any form. What is gambling? Gambling is any amount or any staking on a game of chance. Within these statutes, typically there is an exception that provides a safe harbour for games of skills.”

Contrary to popular perception, fantasy sports require skill rather than luck. Abhinav explained how Indian courts have adopted the dominant factor or predominance test to distinguish between games of skill and chance. This test requires a court to decide whether chance or skill “is the dominating factor in determining the result of the game”. The Supreme Court has applied this test in relation to card games such as rummy (Satyanarayana case6) and horse racing (Lakshmanan case7) in detailed orders.

So, what differentiates fantasy sports from sports betting? “In betting, you are dealing with binary outcomes. The odds are 50-50. There are no skills involved and you are totally dependent on chance. Whereas in sports fantasy, an element of training is involved as you are composing a team (cricket) keeping in mind various factors. You are studying the players’ past performances, you are looking at the environmental conditions before the commencement of matches, the track record of a team against a particular opposition. After analysing all such factors you are coming up with a playing 11 that you think will produce a winning result. So there’s a lot of knowledge and analytical skills being employed, explained Abhinav.

Despite a largely clear position in law adopted by various high courts, various states have proceeded to ban online fantasy sports as there is no dedicated legislation which governs online gaming. Gambling or betting is a state subject that allows each state to frame their own laws. This is hampering the growth of online fantasy sports. That’s why Abhinav called for a uniform law to govern online fantasy sports in India.