By Robert J. Romano, JD, LLM, St. John’s University, Senior Writer
In 1992, Congress went all-in (well, almost) and enacted the Professional and Amateur Sports Protection Act (“PASPA”) as an attempt to hedge the expansion of sports betting beyond the state of Nevada and the three other states that were “grandfathered” in (Oregon, Delaware and Montana). The key component of PASPA was 28 U.S.C. § 3702(1), which made it “unlawful” for a state or any of its subdivisions to “sponsor, operate, advertise, promote, license, or authorize by law or compact . . . a lottery, sweepstakes, or other betting, gambling, or wagering scheme based . . . on” competitive sporting events. Although PASPA did not effectively move the line wherein sports gambling would be considered a federal crime, it did authorize the Attorney General, as well as professional and amateur sport organizations, to bring action (civil) to enjoin violations of the statute. However, PASPA’s time at the table was somewhat short lived when twenty-six years later, on May 14, 2018, the U.S. Supreme Court in Murphy v. NCAA tapped-out this federal statute, finding that it was in violation of the anti-commandeering doctrine of the Tenth Amendment.[1] Specifically, Justice Alito writing for the majority, took the position that “Congress can regulate sports gambling directly, but if it elects not to do so, each state is free to act on its own. Our job is to interpret the law Congress has enacted and decide whether it is consistent with the Constitution. PASPA is not.”[2]
Following the Court’s ruling, several states including New Jersey (the state which brought the lawsuit), Mississippi, West Virgina and New Mexico, seeing an opportunity to generate tax revenue, anted-up and legalized sports betting. The state of California, however, walked away from the table, although attempts were made in 2022 when two ballot initiatives were put to the California voters to legalize certain forms of gambling and online sports betting within the state: Proposition 26 and Proposition 27. Proposition 26 was sponsored by California’s Native American tribes, and, among other things, would have legalized in-person sports betting at tribal casinos while allowing additional forms of tabletop gambling at tribal casinos such as roulette and dice games. Proposition 26, however, crapped out, with approximately 67% of the California electorate voting “no.”[3]
A second initiative known as Proposition 27 aimed was to legalize online sports betting while also establishing a new division within the California Department of Justice to set license requirements and oversee the industry. Although the initiative would have imposed a 10% tax on sports betting revenue and established licensing fees, with a portion going to homelessness prevention, Proposition 27 was soundly rejected with 82% of the electorate voting “no,” making it one of the largest margins of defeat in California ballot proposition history.[4] This defeat came in spite of the fact that it was bankrolled, according to the Washington Post, by “DraftKings, FanDuel and BetMGM who contributed $95 million toward supporting the measure, and the industry ultimately spent $150 million on political ads.”[5]
Although sport betting was rejected by the voters of California, DraftKings has allegedly been operating various websites and mobile apps within the state, with the primary products currently offered being “Daily Fantasy Sports” and “Pick6.” DraftKings consistently and explicitly represents that both “Daily Fantasy Sports” and “Pick6” are legal in the state of California, but the question is – are they?
In October 2023, State Senator Scott Wilk in a blind bet move wrote to the California Department of Justice requesting an investigation into daily fantasy sports betting that was occurring within the state, writing:
“I write to request a legal opinion as to whether California law prohibits the offering and operation of daily fantasy sports betting platforms with players physically located within the State of California, regardless of whether the operators and associated technology are located within or outside of the State. Pursuant to California law, no one may operate “any game of chance” without the required federal, state, and local licenses. No one has “the right to operate a gambling enterprise except as may be expressly permitted by the laws of this state and by the ordinances of local governmental bodies.” [6]
The California Department of Justice then directed the Attorney General’s Opinion Unit to address the following question: “Does California law prohibit the offering and operation of daily fantasy sports betting platforms with players physically located within the State of California, regardless of whether the operators and associated technology are located within or outside of the State?”[7] To date, no opinion has been issued from the Attorney General’s Office.
Since the question of whether DraftKings’ “Daily Fantasy Sports” and “Pick6” is considered a form or online sport gambling or not is still in limbo, the good citizens of the state of California have decided to take matters into their own hands. On June 1, 2025, Brandon Moore, ZhiCheng Zhen, and Jonathan Smith, on behalf of themselves and a proposed class of similarly situated Californians, filed a federal lawsuit in the U.S. District Court, Northern District of California, against DraftKings Inc. to stop what they considered to be unlawful gambling that occurs through the use of its varied gambling websites and to recover the money that DraftKings has allegedly unlawfully taken from them (approximately $5,700.00 collectively).[8] Per their two-count complaint, the plaintiffs claim that DraftKings’ actions of allowing a portal for unlawful gambling that the unsuspecting public can utilize is a violation of California’s Unfair Competition Law, Cal. Bus. & Prof. Code §§ 17200 et seq. and Consumer Legal Remedies Act, California Civil Code §§ 1750 et seq.
The three plaintiffs, in addition to the court certifying the class, have requested injunctive relief and an awarding of money, including but not limited to restitution in an amount equal to and in accordance with applicable law. I wonder what odds DraftKings would place on whether the plaintiffs are successful.
[1] Murphy v. National Collegiate Athletic Association, 584 U.S. 453 (2018).
[2] Id.
[3] https://www.npr.org/2022/11/09/1133986282/california-gambling-prop-26-27-midterm-results.
[4] Id.
[5] Gus Garcia-Roberts, Inside the $400 million fight to control California sports betting, WASH. POST (Nov. 3, 2022), https://www.washingtonpost.com/sports/2022/11/03/prop-26-27-californiasports-betting/ (last visited June 1, 2025).
[6] Case 3:25-cv-04618 Document 1 Filed 06/01/25 at page 9.
[7] Opinion Request No. 23-1001.9 39, https://oag.ca.gov/opinions/monthly-report.
[8] Case 3:25-cv-04618 Document 1 Filed 06/01/25.
