A recent opinion from West Virginia Attorney GeneralJohn McCuskey has added to the legal ambiguity surrounding daily fantasy sports (DFS) in the state. Requested by House Speaker Roger Hanshaw, the review centered on PrizePicks’ discontinued “against-the-house” DFS product, which has drawn scrutiny from regulators and reignited debate over what constitutes fantasy sports under state law.
The platform’s original product allowed players to make statistical predictions against preset projections, competing not against other users but against PrizePicks itself. This format led to a cease-and-desist order from the West Virginia Lottery Commission in 2022.
Ambiguity Rooted in Undefined Legal Terms
This isn’t the first time DFS legality has come under examination in West Virginia. A prior 2016 attorney general opinion leaned heavily on a bill – SB529 – that sought to define fantasy sports but never became law. Since then, legal clarity has remained elusive.
While the West Virginia Lottery Sports Wagering Act, passed in 2018, defines sports betting and excludes fantasy sports from its scope, it fails to define what fantasy sports actually are.
“PrizePicks calls a ‘wager’ an ‘entry fee,’ a ‘parlay’ a ‘Flex Play’ or ‘Power Play,’ and uses ‘more’ or ‘less’ rather than ‘over’ or ‘under.’ But we find these substitute terms are immaterial,” McCuskey wrote. “The single-player game described in the letter and a parlay (or round-robin parlay) of players’ statistical propositions are substantively the same.”
Yet, despite these similarities to sports wagering, McCuskey noted that DFS remains exempt from being classified as such under current law, even if its structure resembles betting.
Regulatory Power and Legislative Gaps
The Lottery Commission’s 2022 cease-and-desist was based on that 2016 opinion, which in turn referenced a bill that never passed. McCuskey described the commission’s enforcement attempt as “legally dubious,” emphasizing that it lacked statutory authority.
He added further uncertainty, noting it was unclear if the Lottery Commission had the power to define fantasy sports at all. “It’s unclear whether the Act’s grant of rulemaking authority extends to providing definitions to exclusionary terms,” he wrote.
In the absence of clear legal definitions, McCuskey called on the legislature to step in.
PrizePicks Responds and Moves Forward
Despite the legal gray area, PrizePicks welcomed the attorney general’s findings. “We are grateful for AG McCuskey’s detailed analysis, which confirms that we have always operated legally in West Virginia,” a company spokesperson said. “West Virginia is yet another state to conclude that Arena meets the legal requirements to operate as a fantasy sports contest and is not a form of sports gambling.”
Following regulatory challenges, PrizePicks has phased out its “against-the-house” offering in West Virginia and replaced it with Arena—a peer-to-peer product that better aligns with traditional fantasy definitions. In Arena, users compete directly with each other, and prizes are awarded based on leaderboard performance, sidestepping the regulatory concerns tied to house-backed formats.
PrizePicks continues to expand nationally, securing licenses in Maine and Puerto Rico. It also became the first DFS operator to earn iCAP accreditation from the National Council on Problem Gambling, reflecting its commitment to responsible gaming practices.
The situation in West Virginia underscores a broader issue across states: the lack of consistent, codified definitions separating DFS from sports betting.
Source:
“West Virginia AG unsure if against-the-house DFS games runs afoul of state law”, sbcamericas.com, Aug 7, 2025
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