Virginia’s attorney general last week issued an opinion that falls in line with what decision-makers in other states have been saying throughout the fall — fantasy sports pick’em contests “constitute sports betting as defined” by state law.

The opinion won’t immediately change how fantasy sports are regulated or taxed in Virginia, but it may lay the groundwork for the state legislature or the Virginia Lottery to follow what regulators in Michigan and New York have done and ban the contests.

Pick’em-style contests, in which the consumer plays against the house rather than a group of peers, have been under fire this year. Regulators in Arizona, Florida, Maine, and Mississippi have sent warning letters to fantasy companies including PrizePicks and Underdog Fantasy, telling them to stop offering pick’em contests. The Massachusetts Gaming Commission in August acknowledged that pick’em contests are under review in the state, and the California attorney general has also been asked to issue an opinion on the topic.

Virginia Attorney General Jason Miyares issued the opinion last Tuesday in response to a request from state Delegate Wren Williams. In it, Miyares writes:

“A plain reading of the statutory definition of ‘fantasy contest’ thus reveals three key elements. In simplified terms, they are 1) prizes are established and known in advance of the contest; 2) participants compete against each other and winners are determined based on accumulation of statistical performance; and 3) outcomes are not based on actual, single game performances or event results. Accordingly, a ‘fantasy contest’ is one in which multiple individual contestants earn points based on statistical, not actual, results of athletes’ performances and a contestant wins upon garnering more points than the other contestants. The contest operator, or ‘the house,’ is not intended to be one of the individual contestants in a multi-player fantasy contest.”

It remains to be seen if pick’em contests will be banned in Virginia. The state regulates fantasy contests, and the definition of a fantasy contest is outlined in statute. At least one industry group said its member organizations will continue to operate in the state.

“We disagree with the Attorney General’s opinion and look forward to continuing our positive working relationship with our governing agencies in the Commonwealth of Virginia,” Allison Harris, spokesperson for the Coalition for Fantasy Sports told SBC Americas. “The opinion does not supersede the licensing process in place as established by the Virginia General Assembly. … Our member companies are licensed and continue to operate legally in Virginia.”

— Caden DeLisa (@CadDeLisa) December 12, 2023

PrizePicks, Sleeper, and Underdog Fantasy are members of the coalition. All three DFS sites have been offering pick’em contests in multiple states and contend that they do fall within the guidelines of what fantasy sports are.

Miyares wrote that while “individual contestants are not competing against each other is critical to this determination,” it wasn’t the only determining factor in his decision.

The attorney general also stated that “to the extent contest results hinge solely on individual performance metrics stemming from a single sports event, the contest also falls outside the definition of ‘fantasy contests’ and instead constitutes sports betting.”

Fantasy sports have been legal in Virginia since 2016. Lawmakers there legalized sports betting in April 2020, and operators began taking bets in January 2021.