by Gloria Siyue Zheng*
Daily Fantasy Sports (“DFS”) has sparked novel questions regarding whether it constitutes illegal gambling. Games of chance are subject to both state and federal gambling laws from which games of skill are typically exempt. However, determining whether DFS falls within the category of chance-based gambling or skill-based competition has proven difficult. Courts remain divided on whether to apply the material elements test, which considers a game to constitute gambling if chance plays any significant role, or the predominant purpose test, which evaluates whether skill outweighs chance to determine whether a game constitutes gambling. This Contribution contends that courts should adopt the predominant purpose test, as it introduces greater consistency and objectivity in an inherently challenging legal determination. Analyzing both tests in the context of DFS highlights the flaws of the material elements test, which produces inconsistent classifications of gambling.