REAL MONEY GAMING
[California] Penal Code section 337(a).” 2 At present, all major daily fantasy sports (“DFS”) operators continue to offer their games in California and the Attorney General has yet to enforce his newfound interpretation of Penal Code section 337(a). 3 As if all of this were not enough news to last a full calendar year, 2025 also introduced DFS and sweepstakes casino operators to a barrage of federal and state lawsuits brought by tribes, faceless gambling recovery LLCs, California citizens and state and local officials. These suits turn the tables on the ongoing debate and posturing over the proper categorization of these types of gaming products that has been, to date, driven by the California State Legislature and California Office of the Attorney General. The State of Play in the California DFS Market California has long been considered a safe space for DFS operators of every ilk. During the first fantasy sports battles of the mid-2010s, then California Attorney General Kamala Harris declined to issue an opinion as to the legality of DFS, despite many other Attorneys General readily decrying DFS as “gambling games” 4 and “illegal gambling” that “cause[s] the same kinds of social and economic harms as other forms of illegal gambling.” 5 Since that time, more and more DFS operators have poured into the target rich state that has long been viewed, alongside Texas, as the most profitable and important U.S. DFS market due to both being at least tolerable hosts for DFS while unwelcoming, if not openly hostile, to legalized sports wagering. 2 Ca. Atty. Gen. Op. 23-1001 at 1.
Of course, even in the safest of times, there have been detractors of DFS in California. Tribes have always bemoaned their presence in California and consider DFS to be illegal gambling that encroaches upon tribal sovereignty and self- determination. 6 Now the tides have turned in favor of the tribes and their supporters. This reversal began with a simple request from State Senator Scott Wilk to Attorney General Rob Bonta. In his October 5, 2023, request, Sen. Wilk asked Bonta for a “legal opinion as to whether California law prohibits the offering and operation of daily fantasy sports betting platforms with players physically located within the State of California, regardless of whether the operators and associated technology are located within or outside of the State.” 7 Wilk later resigned from the Senate and the request was adopted by Assemblymember Lackey. The Attorney General took his time responding to this inquiry. More than a year-and-a-half later, in late June 2025, word began to spread that the Attorney General was preparing to publish his response to Assemblymember Lackey’s inquiry, and the word was that the Attorney General was preparing to make a sweeping declaration – that all real-money DFS are illegal gambling under California law. In a final attempt to stop publication, DFS and sports wagering operator Underdog filed suit to enjoin publication of the legal opinion. 8 The Court rejected Underdog’s emergency petition to enjoin publication of the legal opinion. 9 The opinion itself is a thirty-three-page masterclass is legal writing. The opinion deftly and pre-emptively attempts
3 Despite near-constant appeals from the California Tribal community. See, e.g., Edelstein, Jeff, California’s Tribes Call for Cease-and-Desist Or- ders against DFS Platforms, CDC Gaming, July 28, 2025, https://cdcgaming.com/brief/californias-tribes-call-for-cease-and-desist-orders-against- dfs-platforms/. 4 Nv. Atty. Gen. Memo., Legality of Daily Fantasy Sports Under Nevada Law, at pp. 1, 6-7 (Oct. 16, 2015). 5 New York Office of the Attorney General, Cease-and-Desist Letter to DraftKings (Nov. 10, 2015), https://www.scribd.com/doc/289288418/Final- NYAG-DraftKings-Letter-11-10-2015#:~:text=The%20New%20York%20Attorney%20General,before%20the%20AG%20initiates%20proceedings. 6 Welman, Jessica, CNIGA Chair says all forms of DFS and sweepstakes gaming are illegal, SBC Americas, Oct. 16, 2024, https://sbcamericas. com/2024/10/16/cniga-siva-sweepstakes-dfs/. 7 https://htv-prod-media.s3.amazonaws.com/files/10-5-23-ag-re-fantasy-sports-pdf-685c97716748e.pdf. 8 Underdog Sports, LLC v. Bonta, Case No. 25WM000120, Sacramento County Sup. Ct. (Jun. 30, 2025); Although not totally germane to this arti- cle, an interesting subplot is now playing out within this action. The Attorney General has made a strikingly aggressive declaration that any attempt to “enjoin and prohibit the Attorney General from issuing legal opinions” are attempts to “restrict the Attorney General’s right to free speech” under the California State Constitution and the First Amendment. Similarly striking is the Attorney General’s assertion that “as a matter of law, section 12519 does not impose any restriction on the Attorney General’s authority to issue legal opinions.” Underdog Sports, Respondent’s Motion to Strike, pp. 1-2 (Jul. 22, 2025). 9 This litigation is ongoing; Underdog has indicated it plans to amend its complaint in further efforts to invalidate and nullify the Op. No. 23-1001.
IMGL MAGAZINE | SEPTEMBER 2025
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