Dew-Becker v. Wu , 2020 IL 124472 ( 2020 )

2020 IL 124472
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 124472)
COLIN DEW-BECKER, Appellant, v. ANDREW WU, Appellee.
Opinion filed April 16, 2020.
CHIEF JUSTICE ANNE M. BURKE delivered the judgment of the court, with
opinion.
Justices Kilbride, Garman, Theis, and Neville concurred in the judgment and
opinion.
Justice Karmeier dissented, with opinion.
Justice Michael J. Burke took no part in the decision.
OPINION
¶1 In this case, we must determine whether the loser of a head-to-head contest on
a daily fantasy sports website may recover money lost to the winner of the contest
under section 28-8(a) of the Criminal Code of 2012 (720 ILCS 5/28-8(a) (West
2014)). For the following reasons, we hold that recovery is unavailable.
¶2 BACKGROUND
¶3 On April 4, 2016, the plaintiff, Colin Dew-Becker, filed a complaint in the
circuit court of Cook County against the defendant, Andrew Wu. The complaint
alleged that plaintiff and defendant had engaged in a daily fantasy sports (DFS)
contest on a website known as FanDuel and that, as a result of this contest, plaintiff
had lost $100 to defendant. The complaint further alleged that the DFS contest
constituted illegal gambling under Illinois law and, therefore, plaintiff was entitled
to recover the lost money under section 28-8(a) of the Criminal Code of 2012 (id.
§ 28-8(a)), a statutory provision which allows the loser of certain illegal bets to seek
recovery from the winner.
¶4 At a bench trial, plaintiff testified that in a DFS contest each participant creates
a virtual roster of players by selecting from among current athletes in a real
professional or amateur sports league. Each participant then earns fantasy points
based on how well the selected athletes perform individually in their actual
professional or college sports games on a given day. After all such games are
completed, a total score is calculated for each of the virtual rosters, and the winner
of the contest is the participant whose roster has the most points. A head-to-head
DFS contest is one that involves only two participants who compete against each
other directly.
¶5 Plaintiff testified that on April 1, 2016, he and defendant each paid a $109
entrance fee to participate in a head-to-head DFS contest on the FanDuel website.
The contest involved National Basketball Association (NBA) games, and both
plaintiff and defendant selected a fantasy roster of nine NBA players. Plaintiff
stated that he understood when entering the contest that the winner would keep
$200, the loser would get nothing, and FanDuel would keep $18. Plaintiff testified
that defendant won the DFS contest by a score of 221.1 to 96.3 and that defendant
received the $200 due him.
¶6 Defendant, appearing pro se, testified that he did not view the DFS contest as
“an illegal gambling situation.” He stated that he chose to join the fantasy contest
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voluntarily and that he paid the entrance fee knowing that, if he did not win, $100
would go to plaintiff.
¶7 At the close of trial, the circuit court rendered judgment in favor of defendant.
The court concluded defendant was entitled to judgment as a matter of law because
section 28-8(a) “does not allow recovery when the gambling is not connected—
conducted between one person and another person, in this case, because of
FanDuel.”
¶8 On appeal, the appellate court affirmed. 2018 IL App (1st) 171675. The
appellate court agreed with the circuit court’s reading of section 28-8(a), holding
that recovery could only be had under the statute when there was a “direct
connection between the two persons involved in the wager.” Id. ¶ 19.
¶9 We granted plaintiff’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. July 1,
2018).
¶ 10 ANALYSIS
¶ 11 At issue in this case is whether plaintiff can recover money lost in a head-to-
head DFS contest under section 28-8(a) of the Criminal Code (720 ILCS 5/28-8(a)
(West 2014)). This provision states, in relevant part:
“(a) Any person who by gambling shall lose to any other person, any sum
of money or thing of value, amounting to the sum of $50 or more and shall pay
or deliver the same or any part thereof, may sue for and recover the money or
other thing of value, so lost and paid or delivered, in a civil action against the
winner thereof, with costs, in the circuit court.” Id.
¶ 12 Determining the meaning of section 28-8(a) presents an issue of statutory
interpretation, which we consider de novo. People v. Manning, 2018 IL 122081,
¶ 16. The fundamental rule of statutory interpretation is to ascertain and give effect
to the legislature’s intent, and the best indicator of that intent is the statutory
language, given its plain and ordinary meaning. People v. Alexander, 204 Ill. 2d
472, 485 (2003). When the statutory language is clear and unambiguous, it is given
effect as written without resort to other aids of statutory interpretation. Petersen v.
Wallach, 198 Ill. 2d 439, 445 (2002).
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¶ 13 The appellate court assumed, arguendo, that a head-to-head DFS contest is
“gambling” within the meaning of section 28-8(a) (2018 IL App (1st) 171675, ¶ 17)
but then went on to conclude that recovery for a loss in such a contest was
unavailable under the statute. The court noted that section 28-8(a) references
“ ‘[a]ny person’ ” who loses by gambling “ ‘to any other person.’ ” Id. ¶ 19 (quoting
720 ILCS 5/28-8(a) (West 2014)). The court reasoned that this language “requires
a direct connection between the two persons involved in the wager” for recovery to
be allowed. Id. In other words, according to the appellate court, section 28-8(a)
does not permit recovery when a third-party intermediary has facilitated or aided in
the illegal gambling transaction. We disagree.
¶ 14 Courts are not free to read into a statute exceptions, limitations, or conditions
the legislature did not express. Illinois State Treasurer v. Illinois Workers’
Compensation Comm’n, 2015 IL 117418, ¶ 21. The only “direct” connection
required under section 28-8(a) is that one person lose at gambling to another.
Nothing in the statute states that a third party’s help in conducting the gambling
eliminates the plaintiff’s right to recovery. See Zellers v. White, 208 Ill. 518 (1904)
(interpreting a predecessor statute of section 28-8(a)). Indeed, reading in such a
limitation would effectively eliminate the utility of section 28-8(a). The purpose of
section 28-8(a) “is not simply to undo illegal gambling transactions but ‘to deter
illegal gambling by using its recovery provisions as a powerful enforcement
mechanism.’ ” United States v. Resnick, 594 F.3d 562, 571 (7th Cir. 2010) (quoting
Vinson v. Casino Queen, Inc., 123 F.3d 655, 657 (7th Cir.1997)). If a gambling
winner’s liability could be avoided by simply having an agent assist with the
gambling transaction in some way, the enforcement mechanism of the statute would
essentially be negated.
¶ 15 The appellate court also concluded that section 28-8(a) cannot be read as
applying to DFS contests hosted by websites such as FanDuel because, as a
practical matter, the statute cannot work when a DFS contest takes place on the
Internet. The court noted that FanDuel allows fantasy sports participants to compete
in DFS contests using only a screen name rather than their real names and, thus, the
loser of a DFS contest will often not know the real identity of the winner. The
appellate court concluded that a loser cannot sue the winner “when the winner’s
identity is known only through a screen name.” 2018 IL App (1st) 171675, ¶ 21.
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From this, the court determined that DFS contests held on websites such as FanDuel
are not covered by section 28-8(a). Id. Again, we disagree.
¶ 16 First, it is not always true that DFS participants do not know one another’s
identities. In this case, for example, plaintiff was clearly aware of defendant’s true
identity. Plaintiff invited defendant to participate in the DFS contest, and plaintiff’s
complaint identified defendant by name, even though defendant had used a screen
name during the DFS contest itself. Id. ¶ 20. Further, even if a defendant’s real
name is unknown, Illinois Supreme Court rules permit limited pretrial discovery to
uncover that name. See Ill. S. Ct. R. 224 (eff. May 30, 2008); Hadley v. Doe, 2015
IL 118000. To be sure, the use of screen names may, in some instances, make
recovery more difficult for the loser of a DFS contest, but it does not make recovery
impossible. Moreover, nothing in the language of section 28-8(a) excludes Internet
contests from the statute’s reach. We therefore cannot conclude that section 28-8(a)
is per se inapplicable to DFS contests conducted on websites such as FanDuel.
¶ 17 The appellate court also rejected the application of section 28-8(a) to DFS
contests conducted on websites such as FanDuel because, according to the court,
allowing such application would open “the floodgates of litigation” to the
“thousands of Illinois residents” who have participated in and lost DFS contests.
2018 IL App (1st) 171675, ¶ 22. The appellate court held that it would be “absurd”
to conclude the legislature intended to “inundate the court system with such a high
volume of claims” (id.) and, therefore, section 28-8(a) cannot apply to DFS
contests. See, e.g., Carmichael v. Laborers’ & Retirement Board Employees’
Annuity & Benefit Fund, 2018 IL 122793, ¶ 35 (when interpreting statutes, we
presume that the legislature did not intend to create absurd results).
¶ 18 The appellate court’s conclusion that applying section 28-8(a) to DFS contests
would open the floodgates of litigation is speculative. See, e.g., Sonnenberg v.
Amaya Group Holdings (IOM) Ltd., 810 F.3d 509, 511 (7th Cir. 2016) (noting that
there is typically not a strong incentive for gamblers to file lawsuits to recover
gambling losses because the gambler knows his money is at risk). Moreover, it is
contradicted by the court’s previous discussion regarding the DFS contest
participants’ use of screen names. As the appellate court itself noted, the fact that
participants are known only by screen names would tend to limit the number of
lawsuits filed. Further, and most important, section 28-8(a) is meant to encourage
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the filing of lawsuits as a means of deterring illegal gambling. Any increase in
litigation is therefore not an absurd result but, rather, the explicit purpose of the
statute.
¶ 19 Finally, the appellate court observed that “the trend in Illinois is toward more
relaxed gambling laws” and that section 28-8(a)’s “relevance and applicability have
dwindled since its inception in the late 1800s.” 2018 IL App (1st) 171675, ¶¶ 25-
26. The court concluded for this reason, too, that section 28-8(a) should not be
applied to DFS contests hosted on websites such as FanDuel.
¶ 20 It is certainly true that the “era of strong opposition” to gambling in Illinois has
passed (Sonnenberg, 810 F.3d at 510) and, with the recent enactment of the Sports
Wagering Act (Pub. Act 101-31, § 25-5 (eff. June 28, 2019) (adding 230 ILCS
45/25-1 et seq.)), legalized gambling has been significantly expanded. 1 However,
section 28-8(a) remains the law. In the absence of any constitutional infirmity, it is
not the role of the judiciary to declare the statute may not be enforced.
¶ 21 Although we do not find the appellate court’s reasoning persuasive, we
nevertheless agree that the judgment of the appellate court should be affirmed
because the DFS contest at issue here was not gambling. In order to recover under
section 28-8(a), plaintiff must establish that he lost his money while “gambling.”
Section 28-1(a)(1) of the Criminal Code of 2012 states that a person commits
gambling if he or she “knowingly plays a game of chance or skill for money or
other thing of value, unless excepted in subsection (b) of this Section.” 720 ILCS
5/28-1(a)(1) (2014). Subsection (b)(2), in turn, provides an exception to gambling
for a participant in any contest that offers “prizes, award[s] or compensation to the
actual contestants in any bona fide contest for the determination of skill, speed,
strength or endurance or to the owners of animals or vehicles entered in such
contest.” Id. § 28-1(b)(2). In this case, there is no question that when plaintiff and
defendant entered into the DFS contest, they were “actual contestants” who had
before them a possible “prize,” “award,” or “compensation.” The question is
whether plaintiff and defendant were engaged in a “bona fide contest for the
determination of skill.”
1
The Sports Wagering Act does not address or regulate DFS contests.
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¶ 22 Answering this question can present difficulties because the outcome of every
contest depends, at least to some degree, on chance. Even chess, a highly skill-
based contest, can be affected by the random factors of who draws white (and thus
goes first) or whether one’s opponent is sick or distracted. To address these
difficulties and determine whether a contest is one of skill and, hence, exempt from
gambling laws, courts have applied three general tests. See Marc Edelman,
Regulating Fantasy Sports: A Practical Guide to State Gambling Laws, and a
Proposed Framework for Future State Legislation, 92 Ind. L.J. 653, 663-65 (2017).
The first test, and the one adopted by the majority of courts, is typically referred to
as the “predominant purpose test” or “predominate factor test” Id. at 663; see, e.g.,
Joker Club, LLC v. Hardin, 643 S.E.2d 626 (N.C. Ct. App. 2007). Under this test,
contests in which the outcome is mathematically more likely to be determined by
skill than chance are not considered gambling. Edelman, supra, at 663 n.46. As one
court has put it,
“[t]he test of the character of the game is, not whether it contains an element of
chance or an element of skill, but which is the dominating element that
determines the result of the game, or, alternatively, whether or not the element
of chance is present in such a manner as to thwart the exercise of skill or
judgment.” (Internal quotation marks omitted.) O’Brien v. Scott, 89 A.2d 280,
283 (N.J. Super. Ct. Ch. Div. 1952).
¶ 23 A second test used to differentiate between contests of skill and gambling is
called the “material element test.” Edelman, supra, at 664. Under this test, a contest
is considered a game of chance if the outcome depends in a material degree upon
an element of chance, even if skill is otherwise dominant. See, e.g., Thole v.
Westfall, 682 S.W.2d 33, 37 n.8 (Mo. Ct. App. 1984) (explaining “chance must be
a material element in determining the outcome of a gambling game. It need not be
the dominant element.” (Emphasis in original.)).
¶ 24 The third test is the “any chance test.” Edelman, supra, at 663 n.46. As its name
suggests, this test finds a contest to be gambling if it involves any chance
whatsoever. Id. at 664.
¶ 25 This court has not previously adopted any of the three recognized tests for
determining whether a contest is one of skill or chance. We find, however, that the
predominate factor test is the most appropriate. The any chance test is essentially
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no test at all, as every contest involves some degree of chance. The material element
test depends too greatly on a subjective determination of what constitutes
“materiality.” The predominate factor test, in contrast, provides a workable rule that
allows for greater consistency and reliability in determining what constitutes a
contest of skill. Notably, too, our legislature has used the predominate factor test in
other, similar contexts. See 720 ILCS 5/28-2(a)(4)(A) (West 2018) (excluding an
amusement device known as a “redemption machine” from the definition of a
gambling device if the “outcome of the game is predominantly determined by the
skill of the player”).
¶ 26 At issue then is whether head-to-head DFS contests are predominately
determined by the skill of the participants in using their knowledge of statistics and
the relevant sport to select a fantasy team that will outperform the opponent. Several
recent, peer-reviewed studies have established that they are. Daniel Getty et al.,
Luck and the Law: Quantifying Chance in Fantasy Sports and Other Contests, 60
SIAM Rev. 869 (2018); Brent A. Evans et al., Evidence of Skill and Strategy in
Daily Fantasy Basketball, 34 J. Gambling Stud. 757 (2018); Todd Easton & Sarah
Newell, Are Daily Fantasy Sports Gambling? 5 J. of Sports Analytics 35 (2019).2
In particular, it has been shown that “skill is always the dominant factor” in head-
to-head DFS contests involving NBA games. Getty, supra, at 882 & fig. 6; see also,
generally, Jeffrey C. Meehan, The Predominate Goliath: Why Pay-to-Play Daily
Fantasy Sports Are Games of Skill Under the Dominant Factor Test, 26 Marq.
Sports L. Rev. 5 (2015). Indeed, the fact that DFS contests are predominately skill-
based is not only widely recognized to be true but has created a potential revenue
problem for the DFS websites. Because skilled players can predominate the DFS
contests, new and unskilled players are often hesitant to participate. Ed Miller &
Daniel Singer, For Daily Fantasy Sports Operators, the Curse of Too Much Skill,
Sports Bus. J., (July 27, 2015).
¶ 27 Arguing for a different result, plaintiff points to an Illinois Attorney General
opinion letter that concluded DFS contests are illegal gambling under Illinois law.
2
A recent decision from the intermediate court of New York has recognized the role of skill in
determining the outcome of DFS contests, noting that research has “demonstrated that lineups
chosen by actual contestants beat those chosen at random and contestants improve their performance
over time.” White v. Cuomo, No. 528026, 2020 WL 572843, at *4 (N.Y. App. Div. Feb. 6, 2020).
The decision concluded, however, that such contests are games of chance under the material element
test.
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See 2015 Ill. Att’y Gen. Op. No. 15-006. However, that opinion did not have the
benefit of the more recent research that has established the predominance of skill
in DFS contests. Moreover, the opinion relied heavily on a decision from the Texas
Attorney General’s Office, Tex. Att’y Gen. Letter Op. LO-94-051 (June 9, 1994).
Texas employs the any chance test, not the predominate factor test. See State v.
Gambling Device, 859 S.W.2d 519, 523 (Tex. App. 1993).
¶ 28 Because the outcomes of head-to-head DFS contests are predominately skill
based, we conclude that plaintiff was not engaged in “gambling” with defendant as
required under section 28-8(a). In so holding, we note that nothing in this opinion
should be read as stating that regulation of DFS contests is unnecessary or
inappropriate. That determination is for the legislature. We determine here only that
the DFS contest at issue in this case does not fall under the current legal definition
of gambling. For this reason, we affirm the judgment of the appellate court.
¶ 29 CONCLUSION
¶ 30 For the foregoing reasons, the judgment of the appellate court, which affirmed
the judgment of the circuit court, is affirmed.
¶ 31 Affirmed.
¶ 32 JUSTICE KARMEIER, dissenting:
¶ 33 Loss recovery statutes, such as section 28-8 of the Criminal Code of 2012 (720
ILCS 5/28-8(a) (West 2014)), are an enforcement mechanism “designed to punish
and discourage” gambling by making gambling activities unprofitable. Johnson v.
McGregor, 157 Ill. 350, 353 (1895). Throughout the history of antigambling laws,
courts have recognized the effort and ingenuity man has exerted to circumvent the
law by disguising activities as legal or contests of skill although the intended appeal
is to chance—“to the hope, of winning by shrewd and lucky guessing
disproportionately more than the contestant has put into the enterprise.” State v.
Globe-Democrat Publishing Co., 110 S.W.2d 705, 716-17 (Mo. 1937) (en banc);
see also Schneider v. Turner, 130 Ill. 28, 42 (1889) (certain contracts may be a mere
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disguise for gambling); Morrow v. State, 511 P.2d 127, 129 (Alaska 1973). Due to
its misconception of the predominate factor test, 3 the ingenuity exerted in head-to-
head DFS contests duped the majority into believing it is a game of skill when it
truly is a game of chance. Therefore, I dissent.
¶ 34 In its opinion, the majority soundly rebuts the appellate court’s analysis
regarding the applicability of section 28-8 to games that are played by many over
the Internet and involve a third-party intermediary. Following suit with many other
jurisdictions, the majority adopts the predominate factor test to determine whether
section 28-8 is nevertheless applicable to DFS contests. It then properly asserts the
fundamental inquiry of the predominate factor test that “ ‘[t]he test of the character
of the game is, not whether it contains an element of chance or an element of skill,
but which is the dominating element that determines the result of the game, or,
alternatively, whether or not the element of chance is present in such a manner as
to thwart the exercise of skill or judgment.’ ” Supra ¶ 22 (quoting O’Brien v. Scott,
89 A.2d 280, 283 (N.J. Super. Ct. Ch. Div. 1952)). To this extent, I agree. In
applying the predominate factor test to a DFS contest, however, the majority oddly
ignores its own statement of the test and finds DFS is a contest of skill based on the
results of statistical studies.
¶ 35 From the outset, I must highlight the impropriety of the majority’s reliance on
scientific studies—that are not found in the record or in either party’s briefs—to
make the factual determination that skill is the predominate factor in a contest.
While defendant’s brief presents a bare assertion that DFS was a game of skill, he
fails to support this contention with any authority. Because the studies were not
presented at any stage of this litigation, reliance on these studies raises “ ‘ “concerns
about witness credibility and hearsay normally associated with citations to
empirical or scientific studies whose authors cannot be observed or cross-
examined.” ’ ” See In re Commitment of Simons, 213 Ill. 2d 523, 532 (2004)
(quoting People v. Miller, 173 Ill. 2d 167, 205 (1996) (McMorrow, J. specially
concurring), quoting Jones v. United States, 548 A.2d 35, 42 (D.C. 1988)). The
3
Courts have ascribed different names to this test. Common names include the “dominant factor
test” and “predominate factor test.” Banilla Games, Inc. v. Iowa Department of Inspections &
Appeals, 919 N.W.2d 6 (Iowa 2018); Joker Club, LLC v. Hardin, 643 S.E.2d 626 (N.C. Ct. App.
2007). Although “dominant factor test” seems more grammatically appropriate, for the sake of
clarity, I will follow the majority and refer to the test as the “predominate factor test.”
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majority should not take the position of an advocate and defend against plaintiff’s
suit by hastily accepting the validity of studies that it searched for outside the record
(see People v. Givens, 237 Ill. 2d 311, 324 (2010)), especially considering the
majority failed to engage in its own analysis of the studies’ validity or credibility.
The injustice resulting from this mistake is exceedingly apparent considering that,
under a proper predominate factor analysis, the evidence presented at trial proved
that the contest here is clearly a game of chance.
¶ 36 Seemingly, the majority was misled by the authority it references, O’Brien. In
determining that the contest at issue was gambling, the O’Brien court primarily
discussed the findings of a study conducted by an expert witness, who testified in
the trial court. See O’Brien, 89 A.2d 280. But, four years later, the same court found
O’Brien was no longer authoritative in light of the subsequent New Jersey Supreme
Court decisions, which collectively have held the test is whether the results
predominately depend on chance regardless if skill predominates in the process.
Ruben v. Keuper, 127 A.2d 906, 909-10 (N.J. Super. Ct. Ch. Div. 1956). Such
analysis is considered a qualitative approach.
¶ 37 Like New Jersey, the vast majority of predominate factor jurisdictions have
adopted a qualitative approach. In re Request of the Governor for an Advisory
Opinion, 12 A.3d 1104, 1112-13 (Del. 2009); Morrow, 511 P.2d at 129; Seattle
Times Co. v. Tielsch, 495 P.2d 1366, 1369 (Wa. 1972) (en banc); Commonwealth
v. Plissner, 4 N.E.2d 241, 244-45 (Mass. 1936); Globe-Democrat Publishing Co.,
110 S.W.2d at 717 (synthesizing cases from all jurisdictions); see also Banilla
Games, Inc. v. Iowa Department of Inspections & Appeals, 919 N.W.2d 6, 10 (Iowa
2018); Opinion of the Justices, 795 So. 2d 630, 641 (Ala. 2001); Lucky Calendar
Co. v. Cohen, 120 A.2d 107, 113 (N.J. 1956); Commonwealth v. Laniewski, 98 A.2d
215, 217 (Pa. Super. Ct. 1953); State v. Stroupe, 76 S.E.2d 313, 317 (N.C. 1953);
Steely v. Commonwealth, 164 S.W.2d 977, 979-80 (Ky. 1942). A review of these
jurisdictions clarifies that, to be a contest of skill, the participant’s efforts or skill
must control the final result, not just one part of the larger scheme. If chance can
thwart the participant’s efforts or skill, it is a game of chance. “It is the character of
the game, and not the skill or want of skill of the player, which determines whether
the game is one of chance or skill.” (Internal quotation marks omitted.) Stroupe, 76
S.E.2d at 317; see also Globe-Democrat Publishing Co., 110 S.W.2d at 717;
Laniewski, 98 A.2d at 217.
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¶ 38 Although scientific studies may aid in this determination, under the qualitative
approach, games or contests whose outcome depends on the results of a contingent
event out of the participant’s control, like DFS, are games of chance as a matter of
law. See In re Advisory Opinion to the Governor, 856 A.2d at 328-29; Opinion of
the Justices, 795 So. 2d at 641. This is so because predictions, regardless of the
likelihood of being true, are mere guesses innate with chance. Opinion of the
Justices, 795 So. 2d at 641. The knowledge of past records, statistics, contest rules,
and other information can increase a participant’s chances of correctly predicting
the result of the event, but it cannot control the outcome, as no amount of research
or judgment can assure a certain result will occur. Laniewski, 98 A.2d at 217. No
one knows what may happen once the event commences. “What a man does not
know and cannot find out is chance to him, and is recognized as chance by the law.”
Dillingham v. McLaughlin, 264 U.S. 370, 373 (1924). Thus, skill can improve or
maximize the potential for winning in such contests, but it cannot determine the
outcome. Commonwealth v. Dent, 2010 Pa. Super. 47, ¶ 22.
¶ 39 While the issue of what constitutes a bona fide game of skill is one of first
impression, viewing article 28 of the Criminal Code of 1961 (720 ILCS 5/art. 28
(West 2014)) as a whole, the legislature’s intent supports the adoption of a
qualitative approach. In construing a statute, our primary objective is to ascertain
and give effect to the intent of the legislature. People v. Goossens, 2015 IL 118347,
¶ 9. The most reliable indicator of such intent is the plain and ordinary meaning of
the statutory language itself. Id. We consider the statute in its entirety, keeping in
mind the subject it addresses and the apparent intent of the legislature in enacting
it. Further, the meaning of phrases should be ascertained by reference to the
meaning of the surrounding words and phrases. People ex rel. Madigan v.
Wildermuth, 2017 IL 120763, ¶ 17.
¶ 40 After providing the general prohibition of games of chance or skill for money,
section 28-1 lists specific activities that constitute gambling, including activities
regarding lotteries, bingos, and raffles; “knowingly mak[ing] a wager upon the
result of any game [or] contest”; “knowingly sell[ing] pools upon the result of any
game or contest of skill”; and “knowingly establish[ing], maintain[ing], or
operat[ing] an Internet site that permits a person to *** make a wager upon the
result of any game [or] contest.” 720 ILCS 5/28-1(a)(2), (6), (7), (9), (10), (12)
(West 2014). Similar activities are prohibited by section 28-1.1, which concerns
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syndicated gambling. 4 Id. § 28-1.1. In itemizing what activities meet an element of
one type of syndicated gambling, the provision includes acceptance of wagers or
bets upon the result of any contests of skill or upon any “unknown or contingent
event whatsoever.” Id. § 28-1.1(d). Section 28-1.1 also provides, nearly verbatim,
the same exception as section 28-1(b)(2), upon which the majority relies. Id. § 28-
1.1(e)(2).
¶ 41 Considering that all prohibited activities enumerated in sections 28-1 and 28-
1.1 involve outcomes that depend on a contingent event out of the participants’
control, the legislature demonstrated its intent to broadly prohibit activities of that
nature. The “bona fide contest for the determination of skill” must therefore not
encompass games of this nature. Rushton v. Department of Corrections, 2019 IL
124552, ¶ 19 (“a fundamental principle of statutory construction is that all
provisions of an enactment should be viewed as a whole and words and phrases
should be read in light of other relevant provisions of the statute”).
¶ 42 It is true that every game, to some extent, involves chance or an unknown.
Nevertheless, no court would doubt that a person participating in a simple human
footrace is a game of skill. The critical distinction between a game of chance and a
game of skill is the participant’s ability to overcome chance with superior skill.
Dent, 2010 Pa. Super. 47, ¶ 23; Joker Club, L.L.C. v. Hardin, 643 S.E.2d 626, 630-
31 (N.C. Ct. App. 2007); see also Lucky Calendar Co., 120 A.2d at 113. Runners
can train for severe weather, divert their routes to avoid competitors, or increase
their speed to make up for lost time. But a person who places a wager on the race
lacks any ability to control the outcome of the race. It is this type of chance inherent
in a game, which a person cannot influence, that contributes to the undeniable evils
at which antigambling statutes are aimed. See supra ¶ 14; see also Globe-Democrat
Publishing Co., 110 S.W.2d at 717; Zellers v. White, 208 Ill. 518, 526-27 (1904).
Thus, the exemption under section 28-1(b)(2) may apply only to contests in which
the participant’s own skill has the opportunity to overcome chance.
¶ 43 The majority’s quantitative approach lacks the foresight to distinguish an
activity tactfully camouflaged as a game of skill but whose outcome relies on a
contingent event out of the participant’s control from an activity in which the
4
Syndicated gambling regards the interplay of gambling and other organized crime. See 720
ILCS 5/28-1.1(a) (West 2014).
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participant can use his or her skill to overcome any impact chance may have on the
outcome. Besides the downfalls intrinsic in statistical studies, 5 their conclusions
are often premised on data showing how many times a skilled player wins over the
course of many rounds of the game, which—at most—can only theoretically prove
if skill is involved, and to what extent, in the entire gambling scheme. Such studies
lack conditions or controls necessary to limit the data or analysis to the impact of
skill or chance on the outcome of a contest.
¶ 44 As a result, the majority opinion risks legalizing traditional concepts of
gambling anytime a study concludes that it involves skill more than chance. One
example is poker. Our courts, like many other courts, have determined poker and
other card games to be games of chance despite statistical evidence that skill
dominates. People v. Mitchell, 111 Ill. App. 3d 1026, 1028 (1983) (poker); People
v. Dugan, 125 Ill. App. 3d 820, 827-28 (1984) (blackjack), rev’d in part on other
grounds, 109 Ill. 2d 8 (1985); Dent, 2010 Pa. Super. 47, ¶¶ 11-23 (collecting cases
on poker, electronic poker, slot machines, dice games, shell games, and Keno;
concluding poker is a game of chance). Under the majority’s opinion, however,
because studies show skill dominates in poker, these cases are effectively overruled,
and poker is now legal. This absurd result could not have been intended by the
legislature. See People v. Webb, 2019 IL 122951, ¶ 17.
¶ 45 On the other hand, a qualitative approach focuses on what truly controls the
outcome of the activity. As such, it provides a better framework to parse out
activities that were intended to be prohibited by article 28.
¶ 46 Applying the proper standard here, a DFS contest is a game of chance. Once a
lineup is set and the athletic games commence, the DFS participant cannot influence
the athlete’s performance or how points are accumulated. At this point in the game,
the outcome of the contest relies entirely on a contingent event that the participant
5
For example, the Delaware Supreme Court, in assessing whether sports lotteries would qualify
as games of pure chance under the state constitution, “emphasize[d] that wide areas of disagreement
exist between studies, and internal inconsistencies within studies, addressing single game betting
and the issue of whether chance or skill predominates.” In re Request of the Governor for an
Advisory Opinion, 12 A.3d at 1114; see also Jonathan Bass, Flushed From the Pocket: Daily
Fantasy Sports Businesses Scramble Amidst Growing Legal Concerns, 69 SMU L. Rev. 501, 514-
16 (2016).
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lacks all control over, and there is no subsequent opportunity for the participant to
overcome the chance involved. Accordingly, a DFS contest is a game of chance.
¶ 47 It should be noted, however, that the legislature has since authorized sports
wagering, through its enactment of the Sports Wagering Act (Act) (Pub. Act 101-
31 (eff. June 28, 2019) (adding 230 ILCS 45/25-1 et seq.)). Although the Act does
not explicitly reference daily fantasy sports, it defines “sports wagering” as
“accepting wagers on sports events or portions of sports events, or on the individual
performance statistics of athletes in a sports event or combination of sports events,
by any system or method of wagering, including, but not limited to, in person or
over the Internet through websites and on mobile devices.” Id. (adding 230 ILCS
45/25-10). Therefore, contrary to the majority’s contention (supra ¶ 20 n.1),
because daily fantasy sports requires a wager in an attempt to accumulate the most
points based on the individual performance statistics of athletes in a combination
of sport events over the Internet, the Act clearly governs daily fantasy sports. While
the Act has no bearing on this case, the ability to recover losses from DFS contests,
when played in accordance with the Act, has now come to an end. Pub. Act 101-31
(eff. June 28, 2019) (adding 720 ILCS 5/28-1(b)(15)).
¶ 48 For the reasons stated above, I respectfully dissent.
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¶ 49 JUSTICE MICHAEL J. BURKE took no part in the consideration or decision
of this case.
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