On April 16, 2020, the Illinois Supreme Court signaled that traditional notions of gambling are changing and that Illinois law must evolve to embrace those changes.  The Court reached its decision in Colin Dew-Becker v. Andrew Wu, 2020 IL 124472 (2020). 

The Court’s decision involves the "daily fantasy sports" website, FanDuel.com.  On websites like FanDuel, participants act as virtual general managers for a day. They construct a roster of athletes from a professional sports league.  The website charges a fee, matches up competing "general managers" and accumulates the statistics earned by the athletes on each team that day.  The statistics are scored and the virtual "general manager" with the highest scoring roster wins the pot.

In 2015, the Illinois Attorney General issued opinion No. 15-006 concluding that daily fantasy websites were illegal gambling operations under Illinois law. The Attorney General stated that the Criminal Code prohibited wagering on any "game of chance or skill."  720 ILCS 5/28-1(a)(1). She recognized that there was an exception for "prizes, award[s] or compensation to the actual contestants in a bona fide contest for the determination of skill, speed, strength or endurance . . . ."  720 ILCS 5/28-1(b)(2).  In the context of fantasy sports, the Attorney General interpreted this exception to apply only to the actual athletes participating in the sporting events, not the virtual general managers.

On April 1, 2016, plaintiff Colin Dew-Becker used the FanDuel website to create an NBA daily fantasy team.  He paid $109 to have his fantasy team "compete" against the defendant’s fantasy team.  The winner would collect $200 and FanDuel would keep $18.  Plaintiff was thoroughly routed in the competition, losing by a score of 221.1 to 96.3. 

Plaintiff did not take the loss well.  Instead, he filed a lawsuit against his opponent under § 28-8(a) of the Illinois Criminal Code of 2012 (720 ILCS 5/28-8(a)).  That statute, known as the Loss Recovery Act, allows anyone that loses more than $50 while illegally "gambling" to bring a civil suit to recover his or her losses from the "winner."  After a bench trial, the Court found for the defendant saying that he was not liable because he did not gamble directly with plaintiff.  The Appellate Court affirmed finding that "the trend in Illinois is toward more relaxed gambling laws" and that § 28-8(a)’s "relevance and applicability have dwindled since its inception in the late 1800s."  2018 Ill. App. (1st) 171675, ¶¶ 25-26. 

The Illinois Supreme Court affirmed in a 5-1 opinion.  The Court said that the Appellate Court’s rationale was not "persuasive," but nonetheless reached the same result.  In doing so, the Court considered the definition of "gambling" under the Criminal Code.  Gambling occurs when one "knowingly plays a game of chance or skill for money or other thing of value …".  720 ILCS 5/28-1(a)(1).  However, the Court said that the central question was whether fantasy sports fit within the exception for a "bona fide contest for the determination of skill. . ." 720 ILCS 5/28-1(b)(2).  The Court noted it was not enough to say that there was an element of chance associated with the outcome of a daily fantasy sports contest.  After all, the Court recognized, there is an element of chance even in a game of chess as luck determines who makes the opening move.  The Court recognized that other jurisdictions have struggled to draw the line between a "contest for the determination of skill" and gambling.  For instance, Missouri applies the "material element test" which looks at whether the outcome depends in a material degree upon an element of chance.  Others draw the line if there is any element of chance.  In a question of first impression, the Supreme Court decided to apply a "predominant factor test" to resolve the question. 

The Court then cited several "peer-reviewed studies published between 2015 and 2018 finding that success in daily fantasy sports is driven predominantly by skill rather than chance.  In one of those studies, the researchers found that "new and unskilled players are often hesitant to participate" because more experienced and more well-equipped players were dominating the competitions.  Accordingly, the Court determined that daily fantasy sports wagers were not gambling revenue that could be disgorged under § 28-8(a). 

It remains to be seen how far this logic will extend.  Obviously, gamblers have been claiming for years that poker is predominantly a game of skill, not chance.  The Dew-Becker decision opens the door for them to argue that games like poker do not amount to illegal gambling  in Illinois.