Faculty of Law, University of Macau, Guangdong, China
Corresponding author details:
Hugo Luz dos Santos
Faculty of Law
University of Macau
Copyright: © 2019 Dos Santos HL. This is an open-access article distributed under the terms of the Creative Commons Attribution 4.0 international License, which permits unrestricted use, distribution and reproduction in any medium, provided the original author and source are credited.
As so well asserted by renowned doctrine as sports team fans, we often passionately
criticize the decisions of coaches and managers with regards to team strategy. For example,
most fans often engage in discussions with friends and colleagues on their personal take for
team selection. That is their own «fantasy team» of players whom they believe have what
it takes to win the match and indeed the championship. However, each of these assembled
fantasy teams remains untested because there is simply no method to measure our ability
to select the winning fantasy team. Thus, with each new sports season come the chats and
critical appraisals of team selection all over again. However, all of this changed in the 1960s.
Since then, sports fans in the United States have had the opportunity to form such «fantasy
teams,» (albeit not in the mainstream way of today) and engage in «competition» with
other «fantasy teams». The winning fantasy team is determined by the actual performance
of their players in real-life competition. This has been made possible by the use of widely
available performance statistics for players and teams which takes place in an IA (Intelligent
Ambient) or, more commonly, on a virtual and computerized reality. Make no mistake:
daily fantasy sports are a dazzling form of entertainment. But there have been ongoing
difficulties to ascertain as to whether they are a game of chance or skill. This is crucially
important in light of the current Canadian legal landscape. This paper avowedly asserts that
Daily Fantasy Sports in Canada should be regarded as a game mixed of chance and skill as
both features ought to be synergetic-ally combined in order to achieve a definition that can
thoroughly encompass its complexity in light of Canada Criminal Code. This is the main aim
of this manuscript.
Daily fantasy sports; Gaming; Betting, Canada; Criminal code; Ambient intelligent;
a) The concept of intelligent ambient or IAm [1,2] (from the English Ambient Intelligence)  represents a digital and pervasive ambient created by the convergence of the technologies of radio transmission and broadcasting (as an identification by radiofrequency (RFID) , agents of software, sensor networks, processing of data by personal mobile devices, which provides, in cyberspace, the integration and the interaction of the devices named as «intelligent» . This digital-borne reality is ever-present in the computerized society we live in. Moreover, this digital-borne reality portrays an ambient (intelligent) in which the daily fantasy sports players are surrounded by intuitive interfaces embedded in every corner (even the most inhospitable ones) of their electronic equipment (such as portable devices, laptops, tablets) . A provisional conclusion can be withdrawn: Ambient Intelligence enabled daily fantasy sports reality. Being an axiom that daily fantasy sports are a digital-borne reality, question is to fathom its legal and social implications from a juridical standpoint: is it a game? Are daily fantasy sports solely dependent on the (vast or narrow) array of skills of the player? Let us take a closer look.
b) In Canada, provincial lottery corporations are the entities responsible for conducting and managing all «gaming» and «betting» in Canada. «Game» is defined in the Canadian Criminal Code (the Code) to mean «a game of chance or a game of mixed chance and skill». By implication, this means that none of the offences relating to an unlawful «game» apply to a game of skill alone. «Bet» is defined in the Code to mean a bet that is placed on any contingency or event that is to take place in or out of Canada, and without restricting the generality of the foregoing, includes a bet that is placed on any contingency relating to a horse-race, fight, match or sporting event that is to take place in or out of Canada. Draft Kings and Fan Duel offer DFS contests to players located in Canada. DFS operators claim that DFS contests are games of skill. As games of skill, DFS contests would not be subject to the gaming and betting provisions of the Code, and would not have to be conducted and managed by the provincial lottery corporations. There has not been a definitive pronouncement from a Canadian court regarding the legality of fantasy sports. Accordingly, whether DFS contests are considered bets, games of chance, games of mixed chance and skill, or games of skill, is not settled law [7,8].
As far as the aforementioned goes, there should be an accurate
definition of Daily Fantasy Sports. It should be thoroughly outlined
whether they are games of skill or chance or games of mixed chance
and skill either.
According to North American law , to define what materially constitutes gaming, the predominance test , the gambling instinct test , and the material element test are usually used as references. In line with these tests, it is considered gaming when a cumulative presence of consideration, chance, and prize or reward  exists. Nevertheless, chance is assessed differently for each of these tests.
In the predominance test, it is considered gaming if luck prevails or reigns over the skill of the player; and as such, 51% of prevalence of luck over skill is usually considered the benchmark.
In regards to the gambling instinct test and referring to what is considered the material activity of gaming, the player basically acts in accordance with his gambling instinct. Given the opaque subjectivity of this test, it has not received the acclamation of North American doctrine .
According to the material element test, gambling happens when luck (chance) is considered to be the material element of the game. Thus, where this test is concerned, consideration is understood as being a detriment or promise , or a cash reward ; luck/chance is a material element of the game , something that goes beyond the mere incidental effect of the game-which means that luck/chance could be a material element of the game whenever it has a role in the outcome of the game , role, which role does not necessarily have to be significant or decisive.
In line with the predominance test, three elements are needed to
characterize the concept of gaming, namely: i) consideration; ii) chance
predominates over skill; and iii) prize . It is, in fact, considered
gaming when, in statistical terms (percentage benchmark for when
chance “predominates” over skill) , luck/chance predominates
over the skill of the player where the result of the game is concerned
As far as Daily Fantasy Sports are concerned, typically, at the outset of the game, when the user of the fantasy sports website enters a tournament, he starts at the same footing as the other users participating in the game. From here, the user needs to build a fantasy team for himself based on the players available and various factors like salary caps or team value caps imposed. Arguably, selection of players requires the users to utilize their knowledge (gathered through systematic research), attention, experience and adroitness of sports and thorough understanding of the scoring system and rules applicable for the fantasy sports website. To add to the layer of skill, the user must also find a balance among the team members to fit within the other limitations like maximum number of players that can be selected from a real world team, salary caps or team value caps imposed in the tournament. Users may be required to assess the relative worth of each player and choose a team that would achieve optimum results. The user would generally need a good understanding of the game, along with being updated with the sport. One may also need to take into consideration various factors prior to each round of games, such as playing conditions, venues of the relevant matches, present and recent form of the players including against their respective opponent, weaknesses and other factors such as injuries, form of the team at large, age of the player and so on. Therefore, there is a substantial amount of skill involved in this assessment as users would need to be aware of the developments in the sport and make rational decisions in their team selection prior to each scheduled fixture so as to achieve a best-possible points tally .
However, even considering that DFS have some characteristics
of game of skill one should not forsake or disregard that DFS are a game mixed of chance and skill as well as a bet under Canadian Legal
Framework as summarized below.
Under Canadian Law, Daily Fantasy Sports should be considered a game mixed of chance and skill. Daily Fantasy Sports should be considered a game of chance because two factors are inextricably intertwined: an internal element and an external element.
The internal element is an internal event, which empirically projects itself in the outside world, of an animus ludendi, of a desire for fun or entertainment, not primarily focused on any lucrative or any other serious economic activity. The external element means that the player, however much skill he/she may have, is subject to a number of external factors, unavoidably variable and changeable, which, in the end, can determine the final result of the bet. In other words, this external element makes the player a mere participant rather than a protagonist. The player participates in conducting the bet/wager, but does not determine it. Consequently, he/she has no influence over the final outcome of the bet/wager, which is completely out of the player’s control: this is also the case of slot machines or Baccarat.
Conversely, Daily Fantasy Sports should be also considered a game of skill. As such, the influence of the player’s skill(s) is also a determining factor for the final outcome of a game. Therefore, the good or bad dominance of the game by the player plays a pivotal role in dictating the final outcome of the bet/wager.
As highlighted above, in regards to Daily Fantasy Sports (DFS), the player employs a staggering amount of knowledge, experience and, foremost, a vast array of skills in picking, choosing, and selecting a wide range of players that, given its (real) skillset, pass accuracy, natural talent, stamina, height, weight, speed, can assure to the player a regular and steady performance all season round, which, by definition, lasts only one day.
However, despite the truism that Daily Fantasy Sports requires a significant amount of skills, that vast assortment of skills does not override the conclusion that, to a certain extent, players do not have a full (and complete) domain of the terms of the bet/wager.
As such, the external element of games of chance (performance of
the players, injuries, poor refereeing performance, referee´s technical
errors, adverse virtual weather conditions) means that the player
(no matter how skilled or talented he may be) is equally subject to a
wide range of external factors (in the sense that they are completely
external to their expertise/skills) which are unavoidably variable and
changeable (in the sense that they are not within his grasp, which
means that they are utterly uncontrollable), meaning that, all things
considered, it also determines the final result of the bet/wager.
Daily Fantasy Sports (DFS) are a direct and legitimate heir of Ambient Intelligent (Iam) which pervades every corner (even the most inhospitable ones) of portable devices (mobile phones; smartphones; tablets; laptops) and other electronic devices.
Daily Fantasy Sports (DFS) are a digital-borne reality arisen on the realm of the digital society we live in. Being an axiom that this dazzling form of entertainment is the «newest kid on the block», question is to fathom its future implications on areas inextricably linked with this phenomenon. In this vein, one should not overlook or disregard that DFS (just like any other form of gambling leisure activity) can constitute a deleterious activity to citizens. Just think of putative problem gambling issues that often arises in this domain.
Conversely, future paths of research in this realm should be geared towards the propensity (or lack thereof) of DFS to accelerate or diminish problem gambling issues amongst cyber players-social implications of DFS to which we will refer in a future and suitable occasion.
As for the legal implications of DFS, one cannot emphasize vigorously enough that we are in the midst of a «grey area» in light of Canada´s legal framework: normative elements of skill and normative elements of chance come together as one.
Daily Fantasy Sports (DFS) should be definitely considered a
bet and likewise a game mixed of chance and skill and DFS contests
should be subject to the gaming and betting provisions of the
Canadian Criminal Code.
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