Pick 'Em Under Pressure: Illinois Forces DFS Operators to Leave the State

by: John Allaire and Brian C. Schaller

Illinois is the latest state to crack down on Pick ‘Em style Daily Fantasy Sports (DFS), thrusting the DFS industry back into the spotlight. Almost exactly a year ago, we discussed the legal storm brewing over Daily Fantasy Sports “Pick 'Em” games, and the latest events in Illinois confirm that this storm is far from over. Here are the key developments in Illinois and why real money gaming operators, and those that do business with them, should pay attention.

Key Developments

The Illinois Gaming Board (IGB), in collaboration with the Illinois Attorney General’s office, issued 11 cease-and-desist letters to operators suspected of violating state gaming regulations. A number of these were DFS operators offering Pick ‘Em style games. Note that the cornerstone of DFS legality in Illinois has been the 2020 Illinois Supreme Court decision in Dew-Becker v. Wu. This case addressed a head-to-head DFS contest on FanDuel, where a losing player sought to recover his $100 wager under the Illinois Loss Recovery Act (720 ILCS 5/28-8), a statute allowing recovery of gambling losses. The Court applied the "predominant factor test"—one of the common standards to distinguish games of skill from games of chance—and concluded that skill, not chance, predominantly determined the outcome of the contest. By ruling that such DFS games did not constitute gambling under Illinois law, the decision provided a green light for DFS operators like FanDuel and DraftKings to operate without fear of violating the state’s criminal code.

While the court in Dew-Becker v. Wu didn’t specifically address Pick 'Em games, its adoption of the predominant factor test set a precedent that DFS operators have leaned on heavily. Pick 'Em games, which involve selecting individual player performance outcomes rather than drafting full rosters, arguably require similar skill-based analysis—knowledge of player stats, matchups, and trends. However, this ruling’s scope is now being tested as regulators and critics question whether Pick 'Em contests blur the line between DFS and sports betting.

Adding to the tension, Illinois lawmakers are tackling the issue head-on. State Senator Lakesia Collins (see: SB1224) and State Senator Bill Cunningham (see: SB2145) have put forth bills that offer opposing views on whether or not Pick ‘Em games fall within the definition of a “fantasy contest.”

Why What Happens in Illinois Matters

First, Illinois is a big market with a passionate sports fan base, making it a significant revenue driver for DFS operators. Second, while DFS and sports betting are regulated state-by-state, actions in one state often influence others—regulators and attorneys general nationwide are likely watching Illinois as a potential blueprint. Third, this crackdown reflects a broader trend of states pushing Pick ‘Em operators to either adapt their offerings or exit entirely. PrizePicks, a major Pick ‘Em operator, has apparently already shifted to a peer-to-peer model in Illinois, and other operators may soon follow. For real money gaming operators and their business partners, understanding the developments in Illinois isn’t just about one state—it’s about staying ahead in a rapidly shifting landscape. Tracking these changes is key to navigating the future of this fast-evolving space.

Originally published by InfoLawGroup LLP. If you would like to receive regular emails from us, in which we share updates and our take on current legal news, please subscribe to InfoLawGroup’s Insights HERE.