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.

The fantasy sports industry has evolved from a niche hobby to a global phenomenon captivating millions of participants worldwide.1 Through fantasy sports, participants assemble virtual teams composed of real professional athletes from sports like football, basketball, baseball, and soccer. Whether competing for cash prizes or simply for bragging rights, fantasy sports has exploded in popularity in the United States, with its estimated value soaring to $10.3 billion in 20242 and a projected annual growth of 7%.3 This growth has been driven by the rise of professional sports leagues such as the National Football League (“NFL”), the National Basketball Association (“NBA”), and Major League Baseball (“MLB”), alongside the increasing accessibility of fantasy sports platforms created by ESPN, Yahoo!, FanDuel, and DraftKings.4 In turn, Daily Fantasy Sports (“DFS”)—a variation of fantasy sports that focuses on short-term, daily, or weekly contests, rather than season-long commitments—has firmly cemented itself in the mainstream.

However, the growth of DFS has been accompanied by legal challenges, particularly regarding whether it should be classified as a chance-based gambling operation or a skill-based contest. Categorizing DFS as a game of chance would subject it to state and federal gambling regulations, which range from imposing heavy restrictions to outright banning participation.5 Skill-based games, on the other hand, are subject to minimal regulations, if any.6 To distinguish between the two, some courts rely on the material elements test, which classifies a game as gambling if chance is a material element in the outcome of the contest.7 An alternative test, the predominant purpose test, requires courts to “determine the relative amount of chance and skill present in the game; and if the element of chance predominates, the game is a gambling game.”8 The legal classification of DFS is currently uncertain in many jurisdictions, as state courts continue to apply these two different legal tests to determine whether DFS constitutes chance-based gambling.9 This Contribution argues that states should adopt the predominant purpose test to resolve the issue of whether DFS constitutes gambling to ease the challenges inherent in this legal classification.

Like any contest-based activity, the legal classification of DFS is grounded in the distinction between games of skill and games of chance. Games of almost pure skill, such as chess, are minimally restricted, while games of pure chance, such as roulette and slot machines in casinos, are heavily regulated. This is because games of skill are generally regarded as serving the public interest while games of chance are considered illegal gambling.10 This distinction has deep historical roots.11 Chance-based games have traditionally been subjected to strict regulatory oversight because of consumer protection, fraud, and morality concerns.12 For example, during this nation’s founding years, lotteries were widely used to generate revenue for state governments.13 But as fraudulent practices proliferated, public trust eroded, leading to bans against lotteries in most states.14

In contrast, skill-based competitions have historically been encouraged as socially beneficial. From spelling bees and science fairs to athletic competitions and baking contests, these activities have long been regarded as distinct from gambling.15 Skill-based games have avoided gambling prohibitions not through statutory exemptions but because they are per se not gambling.16 Because many games contain both elements of skill and chance, the test courts use to distinguish between skill- and chance-based contests is crucial in determining whether a given game falls on the gambling side of the line.17 DFS is one such game, where participants utilize their skill-based knowledge of professional sports player statistics, but real-world performances by professional athletes,  in part up to chance, nonetheless impact the fantasy game’s outcome. Because of these mixed elements of skill and chance, utilizing the proper legal test in this decision is integral.

The material elements test is an ill-defined standard that some courts have used to delineate between skill and chance-based games. This test turns on whether chance plays a significant role in the outcome of a game, regardless of whether skill is the dominant factor.18 When applying this test, courts may erroneously classify a contest as chance-based even if it could be statistically proven that 51% or more of the outcome is determined by skill.19 A court employing this test must not only make factual determinations about the level of chance involved in a particular game, but also about when that level of chance plays a significant enough role such that it becomes “material” to the outcome.20 This is problematic because it places the burden on the judge to determine what is “material,” a term that has not been uniformly defined and applied in this context but nonetheless carries great consequences for the contest.21 In other areas of law, the definition of materiality is precisely defined. For example, in civil procedure, a material fact is one that “is essential to proper disposition of the claim,”22 while in contract law, a material breach refers to when “a party fails to perform a substantial part of the contract.”23 In the context of games, applying these varied and untested definitions could lead to inconsistent rulings on whether chance is “essential” or contributes “substantially” to the outcome, improperly leading to classifications of skill-based games as gambling.

Courts do consider additional factors when employing the material elements test, such as whether the game includes both unskilled and expert players.24 However, these considerations do not introduce sufficient objectivity. Instead, they improperly divert the court’s focus away from assessing the overall character of a game. For instance, in Commonwealth v. Dent, the Court classified poker as a game of chance because “[n]o amount of skill can change a deuce into an ace.”25 But while a single game of poker may be predominantly chance-based, a poker tournament with many games could very well be considered skill-based.26 Techniques like holding, bluffing, and raising can determine the outcome of a tournament,27 particularly when evaluated over a large sample size of games.28 On the other hand, in a round of golf, chance factors, such as shifting winds, may cause an amateur to make a lucky hole-in-one, or cause a seasoned player like Tiger Woods to miss a simple putt.29 Nonetheless, the game of golf is widely regarded to be one of skill, not chance.30 These examples demonstrate that the material elements test risks focusing on isolated aspects of a game while neglecting the objective character of the game as a whole and over various instances. This aspect of the test can lead to the misclassification of skill-based games as games of chance, imposing unnecessary restrictions on otherwise valuable games that strengthen connections and foster bonds within society.31

Ultimately, the material element test depends too greatly on several subjective determinations by courts.32 This can lead to both over-inclusivity and under-inclusivity in determining whether a particular game qualifies as a game of skill,33 creating a patchwork of contradictory decisions concerning the same game across different states. The lack of a uniform standard creates uncertainty not only for DFS operators and participants, but also for federal regulators. In 2006, Congress passed the Unlawful Internet Gambling Enforcement Act (UIGEA) to prohibit the transfer of funds linked to state gambling law violations, making state-level classifications of DFS as a skill- or chance-based game crucial in determining compliance with federal law.34 This regulatory uncertainty stemming from the ambiguity of the material elements test is undesirable, particularly given the future development of this booming industry.

The pitfalls inherent to the material elements test are demonstrated by New York’s efforts to classify DFS, considering the state’s difficulty regulating the game while also adhering to the limitations outlined in its state constitution.35 The New York Constitution bans gambling,36 with exceptions made over time for horse racing, charitable games, the state lottery, and a few traditional casinos.37 However, “gambling” is undefined, which has given the legislature latitude to determine what constitutes gambling.38 In 2016, the New York Legislature added Article 14 to the state’s Racing, Pari-Mutuel Wagering and Breeding Law, declaring that interactive fantasy sports contests like DFS do not constitute gambling.39 The legislature concluded these are not games of chance because the “[fantasy] teams are selected based upon the skill and knowledge of the participants and not based on the current membership of an actual team . . . .”40 Following this legislative determination, New York residents with gambling dependencies sued the Governor and the New York State Gaming Commission to enjoin Article 14 as a violation of the anti-gambling provision of the New York Constitution.41 As a result, the New York Appellate Division was forced to confront whether DFS constitutes gambling in White v. Cuomo, but the court erroneously opted to do so under the material elements test.42

The White Court acknowledged the mountain of evidence indicating that the outcomes of DFS games are driven by skill, but nonetheless incorrectly concluded that DFS constitutes illegal gambling because of the mere existence of chance-based elements.43 Ample evidence shows that the success of DFS teams is based on participants’ skill and knowledge. Skilled participants both consistently outperform those who select lineups at random and  improve their ability to choose players over time.44 Nonetheless, the court deemed Article 14 unconstitutional pursuant to the gambling ban, reasoning that the results of DFS contests involve chance factors, such as unpredictable player injuries or weather conditions affecting real-world sporting events.45

By focusing on the minute role of chance in who wins or loses an isolated sporting event, the White Court overlooked the fact that DFS outcomes intentionally do not solely depend on the outcome of a specific professional sports game. Rather, they depend in large part on how a DFS participant’s46 roster choices—comprised of several professional athletes from various teams—compare to the choices made by other DFS participants.47 For example, the outcome of one’s daily fantasy basketball game does not depend on whether the New York Knicks win or lose, or whether a key player gets injured during the game, but on the performance of the DFS participant’s selection of players from the New York Knicks in their overall line up, along with the performance of players from a host of other basketball teams. Thus, DFS participants’ skilled research on professional sports players and their utilization of game theory contribute significantly to the outcome of any given DFS contest.48 That is especially so because the outcome of each DFS contest does not depend on the performance of one’s drafted team in isolation, but rather on how one’s roster compares to those of other DFS participants.49 Instead of honing in on this comparative nature of DFS, which differentiates it from merely wagering on the outcome of a sports game, the material elements test misled the court in White to narrowly focus on the chance elements of a single sporting event, leading to an unfitting classification of DFS in New York.

Ultimately, the material elements test obfuscates and oversimplifies the determination of what constitutes a chance-based contest. This is particularly consequential in the legal analysis of DFS, where the mechanics of outcome determinations are complex and multifaceted. To avoid these concerns, courts should rely on the predominant purpose test, which provides a more effective alternative for classifying games of mixed skill and chance, like DFS.

Under the predominant purpose test, as used by 30 jurisdictions, a game constitutes gambling when the level of chance involved to secure victory outweighs the skill required.50 This test requires courts to assess the balance between chance and skill in the game, and if chance is the dominant factor, the game is classified as a gambling game.51 Because many games contain elements of both chance and skill, as DFS does, the predominant purpose test provides a valuable framework for teasing out the primary determinant of victory: chance or skill. Unlike the material elements test, which depends on a court’s determination of materiality, the predominant purpose test provides a clear standard for chance to predominate over skill: chance must account for over 50% of the outcome of the game to legally classify the game as gambling.52 Courts render this decision through statistical reports and expert opinions, which ensures that the classification of a given game is not determined by the arbitrary consideration of whether the game contains any element of chance, but by whether that element is sufficiently predominant that it effectively determines the result of the game.53 The predominant purpose test thus correctly evaluates the overall game outcome rather than focusing on isolated elements, such as a gust of wind in a round of golf.

The predominant purpose test is also advantageous because it provides a clear, workable standard for determining when a mixed game should be classified as gambling, ensuring that skill-based activities are not unduly restricted. While it is admittedly hard to discern when chance outweighs skill in determining a game’s outcome, the American legal system consistently utilizes standards such as negligence, preponderance of the evidence, and beyond a reasonable doubt to achieve outcomes that effectively balance society’s interests with an assessment of risk. For example, the legal system requires a very high probability of guilt for a criminal conviction—beyond a reasonable doubt—which reflects an assessment of the dangers of letting the guilty go free against the risks of convicting the innocent.54 In the context of games, setting the standard at predominance appropriately balances a game’s risks of inadvertently endorsing gambling against its social benefits of promoting skill-based contests. Further, this standard is far clearer than defining what is “material,” reducing judicial discretion to a manageable and desirable level that limits uncertainty in classification determinations.

The application of the predominant purpose test also offers a clear framework that enables DFS operators to better assess the legal risks associated with developing their platforms. In Dew-Becker v. Wu, the Illinois Supreme Court correctly applied the predominant purpose test to DFS and held that such contests do not constitute gambling.55 This case arose when Colin Dew-Becker lost $100 to Andrew Wu in a DFS contest on FanDuel.com and sued to recover his losses under an Illinois statute that allows a person who loses by gambling to recover lost wagers.56

In adopting the predominant purpose test, the Dew-Becker Court emphasized that the test offers a “workable rule that allows for greater consistency and reliability in determining what constitutes a contest of skill.”57 Unlike the court in White, which focused on the chance factors that can affect an individual fantasy game’s outcome, the Dew-Becker Court properly relied on growing research58 showing the outcomes of DFS contests are primarily driven by skill rather than chance, concluding that these contests are predominantly skill-based.59 One such study used hand-collected data from DraftKings on daily fantasy basketball contests and found that sophisticated, high-volume participants consistently outperform amateurs.60 That is in part because winning participants employ skill-based strategies that systematically differ from those of losing participants, such as selecting rookies, international players, and players from struggling teams to join their roster.61 DraftKings’ data from the first half of the 2015 MLB season supports the view that DFS is a skill-based endeavor, showing that 91% of the profits in DFS contests were earned by only 1.3% of the participants,62 an outcome which would be statistically improbable if DFS were a game of chance. These studies underscore the skill-driven nature of DFS, making the application of the predominant purpose test, which accurately accounts for this information, more appropriate. The predominant purpose test sidesteps the ambiguity and boundless discretion of the material elements test and properly focuses courts on the overall nature of the game, resulting in more accurate classifications.

Acknowledging these drawbacks to the material elements test, the New York Appellate Division’s decision in White v. Cuomo was eventually overturned by the New York Court of Appeals,63 which correctly and explicitly adopted the predominant purpose test.64 The Court of Appeals noted that the predominant purpose test reflects “a shared understanding that ‘gambling’ encompasses those games dominated by chance, not skill.”65 Given the continued growth of DFS, more states will join New York in facing legal challenges regarding its classification as a chance-based or skill-based game. To ensure a fair and coherent approach to DFS regulation, states should heed the Court of Appeals’ conclusion and adopt the predominant purpose test for determining whether an activity constitutes gambling. By doing so, courts will introduce greater legal clarity while upholding the long-established distinction between games of chance and games of skill.

* Gloria Siyue Zheng is a J.D. Candidate (2025) at New York University School of Law. This Contribution is a commentary on the problem at the 2024 Frank A. Schreck Gaming Law Moot Court Competition, hosted by UNLV William S. Boyd School of Law. One of the questions presented was whether a payment of an entry fee to participate in fictitious Daily Fantasy Horse Racing constitutes “gambling.” This Contribution distills one side of the argument, and the views expressed herein do not necessarily represent the author’s views.

1. There are 63 million active users of fantasy sports platforms across the U.S. and Canada. Fantasy Premier League, the fantasy football platform with the largest number of users from England, Egypt, and Nigeria, has over 10 million active players worldwide. Fantasy Sports Market Analysis Report, Grand View Rsch. (2022), https://www.grandviewresearch.com/industry-analysis/fantasy-sports-market-report.

2. Matthew Buchko, Fantasy Sports Services in the US – Market Research Report, IBISWorld (May 2024), https://www.ibisworld.com/united-states/industry/fantasy-sports-services/4577/.

3. Technavio, Fantasy Sports Market to Grow by USD 10.13 Billion, PR Newswire (Jan. 21, 2025, 3:53 AM), https://www.prnewswire.com/news-releases/fantasy-sports-market-to-grow-by-usd-10-13-billion-2025-2029-driven-by-new-app-launches-report-with-ai-powered-market-evolution-insights—technavio-302355508.html.

4. See U.S Fantasy Sports Market – Focused Insights 2023-2028, Rsch. & Mkts. (2023), https://www.researchandmarkets.com/report/united-states-fantasy-sports-market.

5. See Anthony N. Cabot et al., Alex Rodriquez, a Monkey, and the Game of Scrabble: The Hazard of Using Illogic to Define the Legality of Games of Mixed Skill and Chance, 57 Drake L. Rev. 383, 387 (2009) (outlining state campaigns and legislation against games of chance in the early to mid-nineteenth century).

6. See id. at 389 (noting that skill games are not included “within the general prohibition against gambling”).

7. See, e.g., Thole v. Westfall, 682 S.W.2d 33, 37 (Mo. Ct. App. 1984) (analyzing slot machines, a Blackjack poker machine, and draw poker machines under the material elements test and concluding that the outcome of all these games materially depends on chance).

8. Commonwealth v. Dent, 992 A.2d 190, 193 (Pa. Super. Ct. 2010).

9. Brian Joseph, Legal Status of Fantasy Sports in Limbo in Many States, LexisNexis State Net (Aug. 27, 2024), https://www.lexisnexis.com/community/insights/legal/capitol-journal/b/state-net/posts/legal-status-of-fantasy-sports-in-limbo-in-many-states (“Fantasy sports are unregulated, but generally allowed, in [nineteen] more states and not allowed in five.”).

10. Cabot, supra note 5, at 389 (“[S]kill games were deemed to have social merit through their teaching of valuable skills.”).

11. See id. at 384–85.

12. Id. at 387.

13. Id. at 386.

14. Id. at 388.

15. Id. at 389.

16. See, e.g., Conn. Gen. Stat. § 53-278a(2) (2008) (defining gambling as “risking any money, credit, deposit or other thing of value for gain contingent in whole or in part upon lot, chance or the operation of a gambling device” but noting that gambling “does not include: Legal contests of skill, speed, strength or endurance in which awards are made only to entrants or the owners of entries . . .”).

17. See, e.g., David H. Kinnaird, Reconsidering the Legal Definition of Gambling: A Resuscitation of the Gambling Instinct Test, 5 UNLV Gaming L.J. 27, 28 (2014) (“Evaluation of the chance element requires one ‘to envision a continuum with pure skill on one end and pure chance on the other,’ and make a determination for the activity in question in line with the test particular to the jurisdiction.”) (quoting Anthony N. Cabot & Louis V. Csoka, The Games People Play: Is It Time for a New Legal Approach to Prize Games?, 4 Nev. L. J. 197, 222 (Winter 2003–2004)).

18. Thole, 682 S.W.2d at 37 n.8 (citing Mo. Rev. Stat. § 572.010(3) (1978)).

19. See id. (stating that chance does not have to be a “dominant element” but only a “material” one).

20. See, e.g., Boardwalk Regency Corp. v. Att’y Gen. of N.J., 457 A.2d 847, 850 (N.J. Super. Ct. Law Div. 1982) (“[T]he proper focus of the inquiry here is not on the level of skill which may affect the outcome of the contested activity but rather on whether the element of chance is a factor that is material to the final result.”).

21. Erica Okerberg, What’s in A Game? A Test Under Which We May Call A “VGT” A Gambling Game Is Not So Sweet: Why Courts Should Not Apply the Material Element Test to VGTs, 5 UNLV Gaming L.J. 27, 28 (2014).

22. Wright ex rel. Tr. Co. of Kansas v. Abbott Lab’ys, Inc., 259 F.3d 1226, 1232 (10th Cir. 2001).

23. Hodak v. Madison Cap. Mgmt., LLC, 348 F. App’x 83, 90 (6th Cir. 2009).

24. See, e.g., Thole, 682 S.W.2d at 37 (noting chance plays a significant role even for “the most exceptional player”); State v. Coats, 74 P.2d 1102, 1106 (1938) (distinguishing an “exceptional person” from the “patronizing general public”).

25. Dent, 992 A.2d at 196.

26. Cabot, supra note 5, at 409 (explaining that the number of trials in a poker game is relevant to classifying the game because “a single hand may be a game of chance, but a tournament made of many hands may be a game of skill”).

27. See, e.g., Commonwealth v. Two Elec. Poker Game Machs., 465 A.2d 973, 978 (Pa. 1983) (differentiating between a face-to-face poker game and an electronic poker game because “holding, folding, bluffing and raising have no role to play in Electro-Sport poker”). A full review of the literature about whether poker is a game of skill or chance is beyond the scope of this publication.

28. See Elissa B. Harwood, Better Good Than Lucky: A Legal Analysis of Poker as a Skill Game in a Changing Gambling Climate, 101 Wash. U. L. Rev. 1705, 1721 (2024) (criticizing court decisions that “have consistently discounted evidence that shows poker is a skill game over a large sample size in favor of analysis based on one hand”).

29. See Thomas J. Miles et al., Is Texas Hold ‘Em a Game of Chance? A Legal and Economic Analysis, 101 Geo. L. J. 581, 607 (2013) (“In games such as tennis or golf, there is no formal randomization, but chance enters implicitly in the form of gusts of wind and other unexpected distractions and obstacles. These random influences might prevent the most skilled player from winning.”).

30. Cobaugh v. Klick-Lewis, Inc., 561 A.2d 1248, 1251 (Pa. Super. Ct. 1989) (Popovich, J., dissenting) (“[G]olf . . . is a sport requiring precise skills.”).

31. Derek Stark, A Qualitative Examination of the Social Manifestations of Participating in Fantasy Sports (Jun. 6, 2017) (M.S.E. thesis, University of Kansas) at iii (“[F]antasy sports operate as a social tool to develop camaraderie between participants, keep them connected, and stimulate conversation.”).

32. Dew-Becker v. Wu, 178 N.E.3d 1034, 1040 (Ill. 2020) (“[M]aterial element test depends too greatly on a subjective determination of what constitutes ‘materiality.’”).

33. Okerberg, supra note 21, at 46 (concluding that courts should adopt the predominance test because the material elements test “permits too much discretion which could result in over-or under-inclusiveness . . .”).

34. Unlawful Internet Gambling Enforcement Act, 31 U.S.C. §§ 5361–5366 (2006); Jeffrey C. Meehan, The Predominate Goliath: Why Pay-to-Play Daily Fantasy Sports are Games of Skill Under the Dominant Factor Test, 26 Marq. Sports L. Rev. 5, 14–15 (2015).

35. Mary Esch, New York Court Rules Fantasy Sports Contests are Illegal Gambling, PBS News (Feb. 6, 2020, 7:50 pm), https://www.lexisnexis.com/community/insights/legal/capitol-journal/b/state-net/posts/legal-status-of-fantasy-sports-in-limbo-in-many-states (“[D]aily fantasy sports violated the [New York] state constitution’s ban on gambling and that the Legislature unlawfully authorized the activity in 2016 by classifying it as a game of skill, not chance.”).

36. N.Y. Const., art. I, § 9, cl. 1 (“[E]xcept as authorized therein . . . no lottery or the sale of lottery tickets, pool-selling, book-making, or any other kind of gambling . . . shall . . . be authorized or allowed within this state.”).

37. Di Ma & Bryan Gottlieb, I’d Wager it’s Time for a Change: Reconsidering New York State’s Constitutional Prohibition Against Gambling, 80 Alb. L. Rev. 1465, 1469 (2016).

38. See, e.g., People v. Wilkerson, 342 N.Y.S.2d 936, 942 (N.Y. Cnty. Ct. 1973) (citing People v. Stedeker, 67 N.E. 132, 134 (N.Y. 1903)) (“[S]ince the Constitution commits to the legislature the duty of preventing gambling, the measures to be adopted in furtherance of that end also rest in the legislative discretion.”).

39. N.Y. Rac. Pari-Mut. Wag. & Breed. Law §§ 1400-1412, § 1401(8).

40. Id. § 1400(1)(a) (providing legislative findings).

41. White v. Cuomo, 118 N.Y.S.3d 775, 777 (N.Y. App. Div. 3d Dep’t 2020), rev’d, 192 N.E.3d 300 (N.Y. 2022).

42. Id. at 780.

43. Id. at 781.

44. N.Y. Rac. Pari-Mut. Wag. & Breed. Law § 1400(1)(a) (noting in the legislative findings that interactive fantasy sports contest teams are selected based upon the skill and knowledge of the participants); White, 118 N.Y.S.3d at 781 (acknowledging that “research demonstrated that lineups chosen by actual contestants beat those chosen at random and contestants improve their performance over time”).

45. White, 118 N.Y.S.3d at 781–82.

46. The term “participant” refers to the DFS gamer, while “player” refers to the individual competing in the sports event.

47. See N.Y. Rac. Pari-Mut. Wag. & Breed. Law § 1400(1)(b) (providing legislative findings).

48. See Meehan, supra note 34, at 35 (“The evidence presented shows that

daily fantasy baseball players exhibit skill through their daily market and player research, advanced game theory, and bankroll management . . . .”).

49. See id. at 29–30 (arguing that roster selection is a specific skill required to excel in DFS).

50. Morrow v. State, 511 P.2d 127, 129 (Alaska 1973). See also Opinion of the Justices, 795 So. 2d 630, 635–36 (Ala. 2001) (listing jurisdictions that have embraced the predominant purpose test); In re Allen, 377 P.2d 280, 281 (Cal. 1962) (listing cases that utilized the predominant purpose test and adopting it in California); Chuck Humphrey, State Gambling Law Summary, Gambling-Law-US, http://www.gambling-law-us.com/State-Law-Summary/ (last visited Apr. 20, 2025) (summarizing whether the predominant purpose test is utilized in different jurisdictions).

51. Dent, 992 A.2d at 193.

52. See, e.g., Dep’t of Corrs. v. Workers’ Comp. Appeals Bd., 90 Cal. Rptr. 2d 716, 720 (Cal. Ct. App. 1999) (interpreting the statutory language of “predominant” to mean “greater than a 50 percent share”).

53. See, e.g., Dew-Becker, 178 N.E.3d at 1041 (holding that the plaintiff was not “gambling” because “head-to-head DFS contests are predominately skill based” based on “more recent research”); O’Brien v. Scott, 89 A.2d 280, 283 (N.J. Super. Ct. Ch. Div. 1952) (“A game of chance does not cease to be such because it calls for the exercise of skill, nor does a game of skill cease to be such because at times its result is determined by some unforeseen accident.”).

54. Jack B. Weinstein & Ian Dewsbury, Comment on the Meaning of ‘Proof Beyond a Reasonable Doubt’, 5 L., Probability & Risk 167, 173 (2006).

55. Dew-Becker, 178 N.E.3d at 1041.

56. Id. at 1036.

57. Id. at 1040.

58. See, e.g., Brent A. Evans et al., Evidence of Skill and Strategy in Daily Fantasy Basketball, 34 J. Gambling Stud. 757 (2018); Todd Easton & Sarah Newell, Are Daily Fantasy Sports Gambling?, 5 J. Sports Analytics 35 (2019); Daniel Getty et al., Luck and the Law: Quantifying Chance in Fantasy Sports and Other Contests, 60 SIAM Rev. 869 (2018).

59. Dew-Becker, 178 N.E.3d at 1040–41.

60. Evans, supra note 58, at 770.

61. Id.

62. Ed Miller & Daniel Singer, For Daily Fantasy-Sports Operators, the Curse of too much Skill, McKinsey (Sept. 1, 2015), https://www.mckinsey.com/industries/technology-media-and-telecommunications/our-insights/for-daily-fantasy-sports-operators-the-curse-of-too-much-skill.

63. White v. Cuomo, 192 N.E.3d 300, 316 (N.Y. 2022).

64. Id. at 312 (holding that “the proper benchmark for assessing whether an activity is a ‘game of chance’ for purposes of the constitutional gambling prohibition is whether chance is the dominating or controlling element” (emphasis added)).

65. Id.