A 2016 law that authorized Daily Fantasy Sports (DFS) in New York was deemed unconstitutional in 2018 and that decision was upheld last week by a state appellate court.

The law identified DFS contests as “a games of skill” and not a game of chance in order to get around a restriction in the state constitution that prohibits the expansion of most types of gambling. But the courts have ruled that just because a game involves skill does not mean it is not gambling.

Gambling in New York is defined in the State Penal Law as when a person “stakes or risks something of value upon the outcome of a contest of chance or a future contingent event not under his [or her] control or influence.”

After acknowledging that DFS—or Interactive Fantasy Sports (IFS), as it is referred to in New York law—involves an element of skill, the appellate court ruled that “nevertheless, skill and chance are not mutually exclusive; they often coexist. The determinative question is whether IFS contests involve a material degree of chance.”