Did you know that, under Illinois law, if you lose over $50 “by gambling” to another person, you can sue to recover the money?
Under §28-8(a) of the Criminal Code, the loser of a bet “may sue for and recover the money…in a civil action against the winner thereof, with costs, in the circuit court.”
How a $100 gambling lawsuit made it to the IL Supreme Court
Remarkably, this lawsuit over a mere $100 made it to the Illinois Supreme Court. After a bench trial, the circuit court judge entered judgment in favor of the defendant, concluding that §28-8(a) does not allow recovery when the gambling is conducted through an intermediary, like the FanDuel website or mobile app.
Unable to simply let his $100 loss go, Dew-Becker appealed the circuit court’s ruling. The appellate court affirmed the circuit court’s decision, adopting the same reasoning used by the trial judge – because the gambling did not occur directly from person-to-person. Still, through a conduit, it did not fall under the purview of §28-8(a).
The Illinois Supreme Court granted Dew-Becker’s leave to appeal, and on April 16, 2020, it rendered its decision. In an opinion authored by Chief Justice Anne M. Burke, the Court affirmed the findings of the lower courts and held recovery was unavailable, but not for the same reason as the lower courts. As to that reasoning, the Court concluded that nothing in the statute states that a third party’s help in conducting the gambling eliminates the plaintiff’s right to recovery, and therefore, the fact that gambling was conducted through an intermediary did not prohibit recovery.
The court examined the purpose of §28-8(a), which is “to deter illegal gambling by using its recovery provisions as a powerful enforcement mechanism.” The court reasoned, “[i]f a gambling winner’s liability could be avoided by simply having an agent assist with the gambling transaction in some way, the enforcement mechanism of the statute would essentially be negated.” Accordingly, the court found the reasoning employed by both the appellate court and circuit court to be unpersuasive.
Rather, the Court found no recovery was available because head-to-head DFS contests do not constitute “gambling” within the meaning of the statute. Whether an activity is considered gambling is determined by whether it is a game of chance, which would constitute gambling, or a game of skill, which would not. The Court adopted the “predominant factor” test for determining whether a particular game is one of chance or skill, under which:
The test of the character of the game is…which is the dominating element that determines the result of the game, or alternatively, whether or not the element of chance is present in such a manner as to thwart the exercise of skill or judgment.
The Court determined that head-to-head DFS contests are predominately determined by the skill of the participants using their knowledge of statistics and the relevant sport to select a fantasy team that will outperform the opponent. Because the outcomes of head-to-head DFS contests are predominately skill-based, the Court concluded that the plaintiff was not engaged in “gambling” as required for recovery under §28-8(a).
So, there you have it. A lawsuit over $100 reaches the state’s highest court and makes new law. Daily head-to-head fantasy sports contests are not gambling in Illinois.
Dew-Becker v. Wu, 2020 IL 124472.
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