Fantasy sports or fantasy gaming has gained popularity in recent years and mainly after the covid-19 outbreak occurred in the year 2020. The industry of fantasy gaming has boomed since then as the number of users has been rising at a very rapid pace. Before analyzing the industry and the laws regulating it one needs to know what fantasy gaming and fantasy sports are all about.
FANTASY SPORTS
Fantasy sports or known as rotisserie sport is a form of online game that is virtually played through performances of athletes in real life. The participants in a fantasy sport act as managers as they draft, trade, and select their own lineup of professional athletes. The participants can either play in free competitions or can also pay and win as per the amount of the contest. It is mainly an online prediction game based entirely on real-life sports matches. The participants can play against one or more participants. As per data released in February 2022 by the Federation of Indian Fantasy Sports (FIFS) and Deloitte (Deloitte, 2022), India has a market size of over INR 34,000 crore in the fantasy gaming industry. Buoyed by strategic investments the industry caters to over 13 crore registered users said the report. The report further said that 85% of the revenue is brought in through cricket. Football stood second with a 6.32% share. As per the FIFS estimates, the fantasy sports industry is estimated to grow to INR 1,65,000 in the fiscal year 2025.
Since the fantasy sports industry is on a boom and has seen rapid expansion over the past few years its regulation has also been difficult. Different states have different laws regarding these which create confusion among the masses regarding its regulation.
GAMBLING & BETTING
One of the main issues which arise about fantasy sports is whether they can be considered as an act of gambling or betting. A simple definition of betting is the act of staking a wagering sum or amount which can be in the form of cash or any asset on the assumption that an event
will occur or not. As stated by the Supreme Court of India in the case of Dr. K. R. Lakshmanan v. State of Tamil Nadu & Anr.32i, “Gambling in a nut-shell is the payment of a price for a chance to win a prize. Games may be of chance, or of skill, or of skill and chance combined. A game of chance is determined entirely or in part by lot or mere luck. In these games, the result is wholly uncertain and doubtful. A game of skill, on the other hand – although the element of chance necessarily cannot be entirely eliminated – is one in which success depends principally upon the superior knowledge, training, attention, experience, and adroitness of the player.”
The Public Gambling Act, 1867 was introduced before the introduction of the Constitution of India. It prohibited public gambling and the keeping of common gaming houses but made an exception for games of skill. But after the promulgation of the constitution, the issues pertaining to gambling and betting were stated under Entry 34 of the state list. It meant that from now on, only the state legislature can make laws regarding these issues.
DEVELOPMENTS
• Odisha banned all types of online gaming apps under the Odisha Prevention of Gambling Act, 1955.
• Similarly, Andhra Pradesh has also banned fantasy gaming apps such as Dream 11 through the Andhra Pradesh Gaming Act of 1974.
• In order to make online gaming illegal, the Telangana cabinet enacted an ordinance in 2017 that amended the 1974 Telangana Gaming Act. • Assamese citizens are also not permitted to use online fantasy sports platforms such as MPL and Dream 11 as they are banned in Assam. • In the year 2021, the Kerala High Court issued a notice to Virat Kohli and other celebrities for promoting online rummy games and other fantasy sports.
GAME OF SKILL vs GAME OF CHANCE
Games of skill are identified as a separate category from the games of chance as it is not totally dependent upon the certainty of an event. In a game of skill, the skill factor predominates over the luck factor which is the opposite in the case of a game of chance. It does not depend on sheer luck. It includes strategies, talent, skills, team formation, player selection
etc. Whereas in a game of chance, winning is totally dependent upon luck and does not include strategies, team selection, etc. It is comparatively easy than a game of skill.
Fantasy sports are considered as a game of skill as it includes the formation of strategies and other skills such as knowledge about players which are not required in a game of chance. The Punjab and Haryana High Court in 2017, in the case of Shri Varun Gumber v. Union Territory of Chandigarh and Orsii held that fantasy sports predominantly include the skill factor hence they cannot be considered as a game of chance. The Rajasthan High Court and the Bombay High Court too have considered fantasy sports as a game of skill.
REGULATION
The Supreme Court in September 2022 rejected a special leave petition filed by Avinash Mehrotra challenging the legality of fantasy sports in India. Rejecting the PIL the Supreme Court stated that Fantasy sports such as Dream 11 are a game of skill and are protected under Article 19(1)(g) of the Indian Constitution. The Rajasthan High Court also recently in 2023 observed that online gaming is not betting or gambling and granted interim relief to an online gaming platform named Myteam 11.
Fantasy gaming is not directly mentioned in The Indian Constitution but The Supreme Court has time and again held that it is part of Article 19(1)(g). The article reads as follows: “to practise any profession, or to carry on any occupation, trade or business” This article provides citizens the fundamental right to practice any profession or to carry on any occupation, trade, or business. However, activities such as gambling do not come under the scope of this article as stated by the Supreme Court in State of Bombay v. Chamarbaugwalaiii. Hence fantasy games not being an act of gambling or betting, will be covered under Article 19(1)(g) and shall be protected by the government.
CONCLUSION
As pronounced by various courts in various cases, the debate over fantasy sports being a game of skill or a game of chance is well settled. Hence wasting time over this will result in losing an opportunity by not focusing on the booming industry of Fantasy Sports.
The fantasy gaming industry is creating and will create many opportunities which can be utilized for growth.
The way forward from here is to create a particular law that deals with all the fantasy gaming apps and sports, which will ultimately result in a more efficient regulation of this industry.