PRANOY GOSWAMI | The turn of the decade calls for an intriguing set of changes and challenges ahead. The world’s largest democracy, India must take it’s ever teeming and expanding populace into account and look into the recent developments in the realm of gaming. The idea of consonance for fantasy games being a necessary enabler for discussion in the realm of gaming laws in India is a step in the progressive. The researcher attempts to look at the Hon’ble Supreme Court’s directions in the recent Gurdeep Singh Sachar case predominantly in order to establish a matrix between fantasy games and skill. What needs to be quintessentially added in this regard is the need to bring about effective implementations from the various states across the length and the breadth of the country after a thorough analysis of the regulations in place and how the existing loopholes for the same must be plugged.
FANTASY GAMES IN INDIA: QUELLING THE CHANCE VS. SKILL DEBATE
In order to drive home the point that fantasy games are no more than an extended version of games replete with preponderance and luck factor, the Indian courts through the courses of the judgments delivered have traditionally resorted to the “dominant factor test” that has been a much-vaunted practice in the US judicial circles. The decision of the Hon’ble Supreme Court of India in the Satyanarayana case lays down important markers against the tide of the skill set contentions. In all games in which cards are shuffled and later distributed among its individual players or teams involves a considerable element of chance overriding factors of prior identification or involvement of kith and kin. What must however, not be ignored is the fact that the SC had also identified rummy as a game of skill owing to the fact that the fall of cards required the use of memory and the displacement of the cards involved experience and knowledge too.
In juxtaposition to how the realm of fantasy games has been perceived by courts in India based on precedents and jurisprudential discussions, certain international cases have expanded the ambit to recent academic discourses and statistical highlights to negate the domino effect that fantasy games have brought about with them. If one has to understand the latter perspective, a cursive glance at the Humphrey vs. Viacom case shall help elucidate the schema further. In the aforementioned case, the plaintiff’s claim regarding his money deposit being used as a “wager” by the online gaming portal and that the game was one in which the winners were decided preponderantly on account of potential player injuries, recent performances and a host of other factors was put to bed by the district court, which went on to state that such games are based on the skill of the participant to be able to effectively pick or drop players, bench them, drawing information accrued from data and intuition.
Furthermore, data submitted by Prof. Zvi Gilula in his expert report titled “FanDuel vs. Scheniderman” effectively brought to the fore the seminal point that there existed a persistent disparity, a significant gap in the winning rates of “average” players, i.e. to say the systematic users of the FanDuel with the comparative newbies who had just signed up for a game or two. Such a difference must be attributed to the element of evolutionary levels of analysis, one that stems from having taken part in rounds of fantasy games and leagues and must be classified as a “skill” instead of merely branding the win for a regular as the favorable disposition of luck on him/ her.
Even though the idea of bills regarding fantasy sports has been a bone of contention across a bulk of the state in the U.S., the picture seems less than promising as of 2019. The Unlawful Internet Gambling Enforcement Act (UIGEA) of 2006 had thwarted the fantasy gaming scene across the various states initially by leveraging power to the United States and the respective state attorney generals to bring civil suits in federal courts to get temporary restraining orders as well as permanent injunctions brought about to stop online gaming transactions. However, in the next thirteen years, the states of Colorado, Indiana, Kansas, Massachusetts, Mississippi, Maryland, New York, Rhode Island, Virginia and Tennessee had passed legislation which granted legal status to the realm of fantasy sports under their extant laws. However, a uniform piece of legislation which completely overrides the applicability of the UIGEA is still a matter of holistic discussion and consultation.
INDIAN POSITION FOR INDUCING THE “SKILL” PHRASEOLOGY
Nagaland was one of the pioneers in working out the system of operation for fantasy games in the state. The introduction of a regime replete with systems of licensing for such skill games was given legal recognition through the Nagaland Prohibition of Gambling and Promotion and Regularization of Online Games of Skill Act, 2015 (“Nagaland Gaming Legislation”). Prior to the notification of the Nagaland Gaming Legislation, fantasy sports games were not expressly held to be a “game of skill” in any existing set(s) of Indian legislation or judgments. The Act went a step further in expressly recognizing, inter alia, the duo of terms virtual sports “ fantasy league games” and “virtual team selection games” as those games that owe a considerable part of their popularity among the varied factions of users because of the rider of gestation of knowledge and skills attached to them. It goes on to elaborate on the fact that a lot of fantasy games online like those of chess, Sudoku, rummy, poker, virtual cricket and virtual football slide in as the sub-branches of online games involving “skill”. To that end, the online gaming portals ought to apply for licenses in the requisite state and in case the state would find a license holder to be violating any of the provisions of the said Act, the state could ask for redressal from the licensing authority.
The scenario in the Indian hinterland seems to be evolving slowly and steadily. Attention would now be drawn to the Gurdeep Singh Sachar vs. Union of India case wherein the Bombay HC had relied on the precedents laid down by the Supreme Court and the other High Courts (most notable among them is the Varun Gumber vs. Union Territory of Chandigarh and Ors. case in which the Punjab and Haryana HC laid down pointers highlighting the various technicalities associated with virtual sporting games and leagues and how they help players develop it as a matter of skill) to reiterate through its Division Bench that the criminal petition filed by the petitioner, Mr. Sachar against the respondent, Dream 11 Fantasy (Pvt.) Ltd. did not stand as the result of any contest on the ‘Dream 11’ game was not dependent upon the real-world result of a match, i.e., upon a team winning or losing a match. The Bombay High Court relied on the judgment of the aforementioned Punjab and Haryana High Court case regarding the activities of the respondent wherein it was categorically observed that such games were predominantly games of skill and not games of chance. The yardstick for such close-up determination had thus been laid again on the lines of how the game pans out as one of chances or one involving considerable background check, expertise and exposure to such scenarios on a consistent platform, cutting across time.
SUGGESTIONS
It becomes imperative to identify the glaring chinks in the armory of the Public Gambling Act, 1867. It is no more than a piece of legislation somnambulating due to its fervid colonial hangover and leaves much to be desired for the booming virtual gaming space on a national basis. States like Assam and Odisha have yet to warm up to even the idea of gambling per se and wholeheartedly accepted the provisions related to gambling. The courts must, therefore, be proactive in identifying the lags present in the present Act and in reference to the Act now in prevalence in Nagaland and one being mooted in Sikkim as late as November, 2019 that also seeks to introduce the systems of licensing in order to generate revenues from online games, other states need to step up big time. The Ministry of Youth Affairs and Sports could look at the recommendations put forth by the 276th Law Commission Report. That the Parliament is competent to enact legislation on betting and gambling under Entry 31 of List 1 of VII Schedule of the Constitution of India needs to be duly put into use to help monitor the various online gaming platforms and prevent a chance of debauchery. If the fact regarding virtual gaming leagues working on an innate level of skill is backed up with an effective piece of legislation that gives exception to the same, things shall be made clearer to the often confused, often harassed public that finds itself at loggerheads with the rules of these competitions sometimes. There must also be certain amendments be made in relation to the Foreign Exchange Management Act, 1999 to introduce rules which shall be beneficial to the inflow of FDI in the nascent fantasy gaming industry of India that shall bolster technological advancements and help to promote the ideas of “skill sharing” and “virtual community games”.
CONCLUSION
Based on the multi-pronged discussions above, it is an undeniable fact that the figures for fantasy games shall only see an upward trend. In such a scenario, the arsenal of the legislature and the judiciary must clearly be backed with approach-based and rational amendments to the Acts and the Centre needs to be the harbinger of such a change, one that shall not just revolutionize the system of fantasy sporting platforms in India but also strengthen the now digitally strapped economy tremendously too.
Pranoy Goswami is a fourth year student of National Law University and Judicial Academy, Assam. He can be reached at pranoy140@nluassam.ac.in.
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