December 11, 2021

RE: Legal memorandum regarding the legal compliance of Toss-the-Card skill-based real-money game.

To whom it may concern:

This legal memorandum is a written opinion from qualified outside legal counsel that the real-money skill game Toss-the-Card complies with all legal requirements in the jurisdictions in which the developer operates or allows game play.

Background and Game Description

The developer is Majestic Games, LLC, a Georgia limited liability company (“Developer”). Developer operates a website, where it offers a number of skill-based real-money (and free-to-play) games, including browser-based arcade games and skill card games.

This memorandum addresses a card game called Toss-the-Card (“Game”).

The Game allows between three to ten real-world players to compete against each other. The objective of the game is to make decisions regarding the cards presented to you - specifically whether to pass or keep them - all in an attempt to make the best or worst hand of the other players. At the end of the rounds, the players can choose whether they will go “high” or “low.” All players choosing “high” compete with the other “high” players for the best hand, while the players choosing “low” compete with the others who chose “low” for the worst hand. If there are players going both “high” and “low” the pot is split between the best and worst hands.

At the beginning of each round, a 52-card deck is shuffled. Each player is dealt the first two cards face down. The player can see their own cards, but not the cards dealt to the other players. One player is designated the “dealer” and is the last to make the decisions. Each round, the dealer button (designating the player who is the dealer) is moved one spot to the left, so that players get the opportunity to be in different decision-making positions throughout the game.

The player directly to the left of the dealer goes first and is offered a card from the deck, which card is dealt face-up and visible to all players. The player then has to make a decision - to either take that card or to pass that card to the player to his or her left. If all players pass, then the player designated “dealer” must take the card, and the other players each get dealt a card from the top of the deck (face up).

If the player decides to pass the card, he or she must contribute an ante of chips to the pot. If the player decides to keep the card, he or she does not have to contribute to the pot.

This process continues goes until each player gets 3 cards face up. Then, each player is dealt another card face down. Then the player must make their best or worst hand with the 6 cards (three face up and three face down) that have been dealt. Before the cards are revealed, the player must decide whether they are going “high” - meaning they think that they have the best hand - or “low” - meaning that they think they have the worst hand. All players who choose “high” are compared against each other and the player with the best hand from the six cards that they have is the winner. Hands are ranked the same as poker, as follows, from best to worst: (1) Royal Flush; (2) Straight Flush; (3) Four of a Kind; (4) Full House; (5) Flush; (6) Straight; (7) Three of a Kind; (8) Two Pair; (9) One Pair; and (10) High Card (with Ace being highest and 2 being lowest).

All players who choose “low” are compared against each other and the player with the worst poker hand from the six cards that they have is the winner. The hand are ranked in the opposite order as stated above, except the “low” best hand is the “low card” If there is both a “high” card and a “low” card winner, they divide the pot. If there is only one winner, they take the entire pot.

Each player starts with the exact same number of chips. The players must use their memory of what cards have been dealt and other players’ actions to make the decision of whether to keep or pass each card offered. By passing or keeping the card, they essentially alter the other player’s hand. Additionally, each player must make a decision at the end of the round whether to go “high” or “low.” The player must make that decision based on skill, specifically based on the cards that are shown face-up with the other players and their own cards.

Like any other game of skill (like golf, chess, bowling), a player can certainly play randomly. However, random play cannot result in a winning outcome. First of all, random decisions whether to pass or keep the card presented will not benefit the player - the decision must be made on existing information and the player’s strategy as to whether they are going for a high or low hand. Second, random decisions about whether to go “high” or “low” will sabotage a player, even if they are consistently dealt the best or worst hand from the initial 2 and final 1 cards. In other words, chance is immaterial and not determinative of the outcome in the Game.

Legal Analysis

Introduction

The commonly accepted definition of gambling requires three elements: (1) payment of consideration; (2) for an opportunity to win a prize; (3) determined by chance. 38 Am. Jur. 2d Gambling 2; see also Sniezek v. Colorado Dept. of Revenue, 113 P.3d 1280 (Colo. App. 2005); Veterans of Foreign Wars Post 6477 v. Missouri Gaming Com'n, 260 S.W.3d 388 (Mo. Ct. App. W.D. 2008).

There is no dispute that players of the Game pay money for the opportunity to win a real-money prize. Thus, the threshold inquiry focuses on the presence of “chance.” Simply put, if the activity involves risking money on a game of chance, it is illegal gambling. On the other hand, risking money on a game of skill is not gambling (in most states) and is not prohibited. Indeed, as detailed in the chart below, some states expressly exempt “bona fide contests of skill, speed, strength, or endurance” from “gambling.” See, e.g., Colo. Rev. Stat. § 18-10-102(2)(a) (2009) (exempting "contests of skill, speed, strength, or endurance" from gambling laws); Conn. Gen. Stat. § 53-278a(2) (2009) (same) ; Idaho Code Ann.§ 18-3801(1) (2010) (same); Indiana Code § 35-45-5-1(d)(1) (2008) (same); N.D. Code. § 12.1-28-01(1) (2009) (same); Wyo. Stat. Ann. § 6-7-101(a)(iii)(A) (2009) (same).

Court Decisions Regarding Whether Poker is a Game of Skill or Game of Chance

Poker (and specifically Texas Hold’em) has been the subject of multiple court decisions. It is a game that involves both skill and chance or a “mixed” game. Most jurisdictions use the “dominant factor test” to determine whether the “mixed” game is illegal gambling. Under the dominant factor test, the court asks whether chance dominates skills in determining the outcome of the game. See Roberts v. Commc'ns Inv. Club, 431 A.2d 1206, 1211 (R.I. 1981); see also Morrow v. State, 511 P.2d 127 (Alaska 1973); Finster v. Keller, 18 Cal. App. 3d 836, 96 Cal. Rptr. 241 (1971); State v. Steever, 103 N.J. Super. 149, 246 A.2d 743 (1968); Commonwealth v. Laniewski, 173 Pa. Super. 245, 98 A.2d 215 (1953); Seattle Times Co. v. Tielsch, 80 Wash. 2d 502, 495 P.2d 1366 (1972). The material factor test is similar, in that it asks whether chance materially determines the outcome of the game.

State courts analyzing Texas Hold’em have generally concluded that poker is a game of chance. See People v. Mitchell, 444 N.E.2d 1153, 1155 (Ill. App. Ct. 1983) (holding that poker games are not "bona fide contests for the determination of skill"); Joker Club, L.L.C. v. Hardin, 643 S.E.2d 626, 627, 630-31 (N.C. Ct. App. 2007) (declining to issue declaratory judgment that poker is predominantly a game of skill); Commonwealth v. Dent, 992 A.2d 190, 196 (Pa. Super. Ct. 2010) (holding that Texas Hold 'Em poker is predominantly a game of chance); State ex rel. Schillberg v. Barnett, 488 P.2d 255, 256, 258 (Wash. 1971) (en banc) (holding that the role of chance in "low ball" poker is sufficient for it to constitute unlawful gambling).

Several state gaming laws explicitly include “poker" in their definition of gambling or define it as a game of chance. E.g. Wis. Const. Art IV, § 24(6)(c) (prohibiting the legislature from authorizing particular games as a state-run lottery, including poker); Idaho Const. Art III § 20(2) (prohibiting casino gambling, including poker); Ark. Code § 5-66-112 (prohibiting betting money or something of value on card games, including "poker"); Conn. Gen Stat. § 53-278a(2) ("'Gambling' means risking any money, credit, deposit or other thing of value for gain contingent in whole or in part upon lot, chance or the operation of a gambling device, including the playing of a casino gambling game such as . . . poker."); Ohio Rev. Code Ann. § 2915.01 ("'Game of chance' means poker, craps, roulette, or other game in which a player gives anything of value in the hope of gain, the outcome of which is determined largely by chance, but does not include bingo."); Idaho Code § 18-3801 (defining gambling as including poker and excluding "[b]ona fide contests of skill, speed, strength or endurance in which awards are made only to entrants or the owners of entrants"); Iowa Code § 99B.11 ("A poker, blackjack, craps, keno, or roulette contest, league, or tournament shall not be considered a bona fide contest" of skill exempt from gambling license requirements; "[c]ribbage, bridge, chess, checkers, dominoes, pinochle and similar contests, leagues or tournaments" are exempted.); Okla. Stat. tit. 21 § 941 ("Except as provided in the Oklahoma Charity Games Act, every person who opens, or causes to be opened, or who conducts, whether for hire or not, or carries on . . . poker . . . for money, checks, credits, or any representatives of value, or who either as owner or employee, whether for hire or not, deals for those engaged in any such game, shall be guilty of" opening, conducting or carrying on gambling game.); Tenn. Code Ann. § 39-17-501, Sentencing Commission Comments ("The definition of 'gambling' includes . . . poker."); cf. Cal. Penal Code § 337j(e) (including poker in the definition of a controlled game which is unlawful to operate without a license except when played "in private homes or residences, in which no person makes money for operating the game, except as a player"). Others implicitly include poker in their definition of gambling. See Fla. Stat. §§ 849.08 - 849.085(2)(a) (prohibiting "any game at cards, keno, roulette, faro or other game of chance, at any place, by any device whatever, for money or other thing of value" but stating that gambling on poker is not a crime when played for "penny ante"); id. § 849.086(1) (authorizing poker games at racetracks if those games are played in compliance with Florida law); Mich. Comp. Laws Ann. § 750.314 (making it unlawful for any person "by playing at cards . . . or by betting or putting up money on cards . . . [to] win or obtain any sum of money or any goods”)

Criticism of the State Court Decisions

The state court decisions have been criticized by economists and other professionals. Steven Levitt (author of Freakanomics and Superfreakanomics, among others) has criticized the courts, specifically the error in focusing on a single hand, rather than the effect of skill over time. There is no question that in a single hand, the more skilled player is not certain to win, but Texas Hold’em is played over multiple rounds. An analysis of a single hand mischaracterizes the whole game. ARTICLE: Is Texas Hold 'Em a Game of Chance? A Legal and Economic Analysis, 101 Geo. L.J. 581, 597. Commentators have stated that even in golf - which is clearly a game of skill - it is possible for an amateur golfer to beat a more skilled professional over a single hole. But, that is why golf is not played over a single hole - indeed, tournaments involve multiple rounds over multiple days. NOTE: UNSTACKING THE DECK: THE LEGALIZATION OF ONLINE POKER, 50 Am. Crim. L. Rev. 519, 524. Levitt also criticizes the courts’ failure to actually apply the dominant factor test (despite citing it), instead relying on anti-gambling policy and moral concerns. Levitt et al, 101 Geo. L.J. 581, 611-12.

The Shifting Legal, Regulatory, and Moral Landscape May Affect a Court’s Analysis of the Game.

Further, the regulatory and judicial landscape is different in 2021 than it was ten years ago with the 2007 Joker Club, 2010 Dent, and the district court’s thorough economic and statistical analysis in Dicristina being overruled by the 2nd Circuit in 2013.

The shift first started in 2011, when the Department of Justice issued an opinion concluding that the federal Wire Act applied only to "sports gambling" and did not apply to state lotteries. See Whether Proposals by Illinois and New York to Use the Internet and Out-of-State Transaction Processors to Sell Lottery Tickets to In-State Adults Violate the Wire Act, 35 Op. O.L.C. __ (2011) (“2011 Opinion”). In 2018, the Department of Justice revisited the interpretation of the Wire Act and reversed course, concluding that the Wire Act is not limited to sports gambling and applies to "non-sports related betting or wagering." Reconsidering Whether the Wire Act Applies to Non-Sports Gambling, slip op. at *11–*14, *23, 2018 WL 7080165, (Nov. 2, 2018) ("2018 Opinion"). Notwithstanding the 2018 opinion, states continue to offer intra-state online lotteries and have expanded online casino-style gambling. Recently, the 1st Circuit Court of Appeals affirmed the New Hampshire District Court's determination that despite the 2018 Opinion, the 2011 Opinion is correct and the Wire Act only applies to sports gambling. New Hampshire Lottery Comm'n v. Rosen, No. 19-1835, 2021 WL 191771, at *1 (1st Cir. Jan. 20, 2021).

Second, the United States Supreme Court held the Professional and Amateur Sports Betting Act unconstitutional in 2018, clearing the way for states to legalize sports betting. Murphy v. NCAA, 138 S. Ct. 1461 (2018).

Third, in 2021 Draftkings and Fanduel offer daily fantasy sports wagering in 45 of the 50 states under the argument that daily fantasy sports is a skill-based game.

Fourth, Connecticut, Delaware, Michigan, Nevada (poker and sports betting only), New Jersey, Pennsylvania, and West Virginia have legalized full-scale casino-style online gambling. Several other states are considering similar legislation to boost tax revenues.

Fifth, there is a number of online skill-based real money games that are offered in the majority of the states. Players can participate in real-money video game tournaments or play casual but competitive versions of timed solitaire, bingo, and a number of other game permutations.

The legal and social landscape is different than it was 10 years ago. Courts may be a lot more inclined to actually use the predominant or material factor tests in analyzing a game, and may be more willing to engaged in a comprehensive evidence-based analysis like the district court in Dicristina.

Texas Hold’em Compared to Skill-Based Card Games.

In United States v. Dicristina, the District Court defined Texas Hold’em as follows:

The game is usually played with at most 10 (and at least 2) players. Like most variants of poker, the objective in hold'em is to win pots, where a pot is the sum of the money bet by all players in a hand. A pot is won either at the showdown by forming the best five card poker hand out of the seven cards available, or by betting to cause other players to fold and abandon their claim to the pot. The objective of a player is not to win the maximum number of individual pots, but rather to make mathematically correct decisions in order to maximize the expected net amount won in the long run.

Hold'em is often played using small and big blind bets. A dealer button is used to represent the player in the dealer position; the dealer button rotates clockwise after each hand, changing the position of the dealer and blinds. The small blind is posted by the player to the left of the dealer and is usually equal to half of the big blind. The big blind, posted by the player to the left of the small blind, is equal to the minimum bet.

A play of a hand begins with each player being dealt two cards face down from a standard deck of 52 cards. These cards are the player's hole or pocket cards, they are the only cards each player will receive individually, and they will only (possibly) be revealed at the showdown, making hold'em a closed poker game. After the pocket cards are dealt, there is a "pre-flop" betting round, beginning with the player to the left of the big blind (or the player to the left of the dealer, if no blinds are used) and continuing clockwise. A round of betting continues until every player has either folded, put in all of their chips, or matched the amount put in by each other active player.

After the pre-flop betting round, assuming there remain at least two players taking part in the hand, the dealer deals a flop; three face-up community cards. The flop is followed by a second betting round. This and all subsequent betting rounds begin with the player to the dealer's left and continue clockwise.

After the flop betting round ends a single community card (called the turn) is dealt, followed by a third betting round. A final single community card (called the river) is then dealt, followed by a fourth betting round and the showdown, if necessary.

If a player bets and all other players fold, then the remaining player is awarded the pot and is not required to show his hole cards. If two or more players remain after the final betting round, a showdown occurs. On the showdown, each player plays the best five-card hand he can make from the seven cards comprising his two pocket cards and the five community cards. A player may use both of his own two pocket cards, only one, or none at all, to form his final five-card hand. If the five community cards form the player's best hand, then the player is said to be playing the board and can only hope to split the pot, since each other active player can also use the same five cards to construct the same hand.

If the best hand is shared by more than one player, then the pot is split equally among them. The best hand is determined according to the ranking described below. If the significant part of the hand involves fewer than five cards, (such as two pair or three of a kind), then the additional cards (called kickers) are used to settle ties. Note that only the card's numerical rank matters; suit values are irrelevant in Hold'em.

886 F. Supp. 2d 164, 172-73 (E.D.N.Y. 2012), overruled on other grounds.

At the same time, just because a game involves a deck of cards or a shuffled deck, does not make it a game of chance. For example, competitive solitaire games available in the Apple App Store (like Solitaire Cube and its many clones) involve a deck of cards. A game called 21 Blitz combines blackjack and solitaire, and is likewise considered a game of skill. Players playing against each other compete with the same shuffle of cards and the only variable is how quickly and skillfully the players complete the solitaire game. Currently, Skillz does not offer real-money card games in the following jurisdictions: Arizona, Arkansas, Connecticut, Delaware, Indiana, Louisiana, Maine, Montana, South Carolina, South Dakota, and Tennessee. See https://www.skillz.com/legal/.^[1]

Comparing and Contrasting the Game and Poker.

The Game Toss-the-Card is a skill-based card game. It is not poker because it introduces significant decision-making and skill elements into the gameplay that are simply not present in any game that is traditionally considered to be poker.

The following is a comparison chart between Texas Hold’em (based on the description by the federal district court in Dicristina) and the Toss-the-Card Game:

Texas Hold’em	Toss-the-Card	Same or Different?
1. Between 2 and 10 players, playing against each other with the objective to win the most pots (sum of money bet by all players in a hand).	Between 3 and 10 players, playing against each other with the object to win the most pots (sum of money bet by all players in hand)	Same
2. A pot is won either at showdown by forming the best 5 card poker hand out of the 7 cards available or if everyone else folds.	A pot is won at showdown by forming the best 5 card poker hand out of the 2 facedown cards, three face up cards, and sixth facedown final card. There are no “community” cards.	Different
3. Betting order, as well as big and small blinds change every round.	Betting order, as well as big and small blinds change every round.	Same
4. A play of the hand begins with each player being dealt 2 cards face down.	A play of the hand begins with each player being dealt 2 cards face down.	Same
5. After the pre-flop betting round, the dealer deals a flop (3 cards face up) and those are community cards.	There is no initial betting round. There are no community cards. The dealer offers the first player a face up card. The player makes the decision whether to pass the card or to keep the card. If the player passes, the card, they must pay an ante.	Different
6. After the flop and post-flop betting, another card is dealt (the turn). There is another betting round. Then, the final card (the river) is dealt.	The process of offering a face up card to the players, and having them make decisions on whether to pass or keep the card continues until each player has 3 face up cards.	Different
7. There is a betting round after the river. Player can see the 5 community cards, but not the 2 initial cards.	There is a final 6th card dealt face down. Players can seek 3 of the six cards in that their opponents have.	Different
8. The players that are still in the hand proceed to “showdown,” where they show their cards and the highest/best poker hand wins the pot (or splits the pot in the event of a tie).	After the 6th card is dealt, the players must make a final choice of whether to go “high” or “low.” After the cards are revealed, the “high” hands are compared against each other and the “low” hands are compared. The best “high” hand takes half of the pot and the worst “low” hand takes the other half. If there is only a “high” or “low” hand, then the winning player takes the whole pot.	Different
9. It is possible to win a single hand (or even multiple hands) in a statistically significant manner based on chance alone.	It is highly improbable that a player can win a single hand based on chance alone and the ability to win multiple hands on chance alone is statistically insignificant based on the number of choices and skill decisions that a player must make.	Different
10. Players cannot make any decision that affects the hand of the other player.	Players make a decision every round (to pass or keep) that directly affects the other players’ hands.	Different

The critical distinguishing characteristic is the number of skill choices that the player must make in Toss-the-Card. In limit poker, the choices each round are basically to bet or fold. In no limit poker, the additional choices of whether and when to raise are introduced. Toss-the-Card however has additional choices that alter the other players’ hands, as well as the final choice to go high or low. More specifically, by passing or keeping a card, the player is changing the hands of their opponents, thereby using their decision (and strategy and memory skills) to increase their chances of winning. Toss-the-Card also involves a final choice of whether to go “high” or “low.” Again, the player must analyze not only their own cards, but the visible cards of others, as well as what the other players were passing or keeping to make the decision. A random “high” or “low” choice significantly lowers the players’ chances of winning.

Based on these facts, the Game is not likely to be considered “gambling” or a “game of chance” in any of the states that use either the dominant factor or the material factor test. Put differently, chance is neither a dominant factor nor a material factor in determining the winner. Toss-the-Card is different from poker games like Texas Hold’em because the rules introduce significantly more opportunities for decision-making, including those that directly affect the hand of the other players. Nor is Toss-the-Card similar to any other type of poker (like 5-card draw or stud).

As explained in more detail below, federal law does not regulate or prohibit real-money games of skill. Further, the majority of states also do not regulate or prohibit real-money games of skill. The Game only allows for real-money games in those states where skill-based gaming is not unlawful. In other words, it is proper to treat the Game as a skill-based card game like those offered by Skillz and its many competitors.

Federal Laws and Skill-Based Gaming.

This memorandum provides an analysis of federal law, including the Federal Wire Act of 1961, 18 USC 1084 (the “Wire Act”); International Travel Act of 1961, 18 USC 1952 (the “Travel Act”); the Illegal Gambling Business Act, 18 USC 1955 (the “IGBA”); and the Unlawful Internet Gambling Enforcement Act of 2006, 31 USC 5363 (the “UIGEA”).

In general, federal law does not prohibit, license, or otherwise regulate real-money games of skill. Federal law targets “gambling,” which requires an outcome determined on the basis of chance. Chance is not a material or predominant factor in the outcome of the Game.

1. Unlawful Internet Gambling Enforcement Act of 2006, 31 USC 5363 (the “UIGEA”)

By its very name, the UIGEA applies only to "unlawful internet gambling." The Game is not unlawful because real-money skill play is offered only in the states where this Firm determined the game complies with all legal requirements. Further, the Game is not gambling and does not involve gambling because the outcome does not materially or predominantly depend on chance. Like many other skill games, the logical decision-making of the players and their memory are the sole factors that determine whether they win a prize. Additionally, the player is only paying an entry fee in consideration for their own participation in the Game.

Notwithstanding this common-sense analysis, the text of the UIGEA itself supports the conclusion that it neither prohibits or otherwise regulates real-money skill games like the Game. Generally, the UIGEA prohibits a “person engaged in the business of betting or wagering” from knowingly accepting financial transactions “in connection with the participation of another person in unlawful Internet gambling.” 31 USC 5363. Under the UIGEA, to “bet or wager” means “staking or risking by any person of something of value upon the outcome of a contest of others, a sporting event, or a game subject to chance...” 31 USC 5362(1)(A) (emphasis added). The Game does not involve betting or wagering because (1) there is no stake on a contest of others - the players only pay an entry fee to participate in a game themselves; (2) the Game is not a sporting event; and (3) the game is not subject to chance and is materially and predominantly determined by skill. As explained earlier, chance plays no role in the outcome. Therefore, there is no “bet or wager” and the UIGEA does not apply.

However, even if the Game involved a “bet or wager,” the Game does not meet the second part of the prohibition in § 5363 because it does not involve the “participation of another person in unlawful Internet gambling.” The term “unlawful Internet gambling” means “to place, receive, or otherwise knowingly transmit a bet or wager...where such bet or wager is unlawful under any applicable Federal or State law in the State...in which the bet or wager is initiated, received, or otherwise made.” 31 USC 5362(10)(A). As explained in more detail below, real-money games of skill are not unlawful in a majority of states. Further, no Federal law prohibits real-money games of skill.

The Firm was unable to find any case law or any other authority that supports the application of the UIGEA to real-money skill games like the Game.

2. Federal Wire Act of 1961, 18 U.S.C. § 1084 (the “Wire Act”)

The Wire Act prohibits the use of a "wire communication facility" (which now includes the Internet) to transmit "bets or wagers or information assisting in the placing of bets or wagers on any sporting event or contest" 18 USC 1084(a). The Wire Act does not define "bets or wagers." In 2011, the Department of Justice issued an opinion concluding that the Wire Act's prohibition applied only to "sports gambling" and did not apply to state lotteries. See Whether Proposals by Illinois and New York to Use the Internet and Out-of-State Transaction Processors to Sell Lottery Tickets to In-State Adults Violate the Wire Act, 35 Op. O.L.C. __ (2011) (“2011 Opinion”). The 2011 Opinion did not address the meaning of "betting or wagering." In 2018, the Department of Justice revisited the interpretation of the Wire Act and reversed course, concluding that the Wire Act is not limited to sports gambling and applies to "non-sports related betting or wagering." Reconsidering Whether the Wire Act Applies to Non-Sports Gambling, slip op. at *11–*14, *23, 2018 WL 7080165, (Nov. 2, 2018) ("2018 Opinion"). The 2018 opinion did not address the meaning of "betting or wagering." Notwithstanding the 2018 opinion, states continue to offer intra-state online lotteries and have expanded online casino-style gambling. Recently, the 1st Circuit Court of Appeals affirmed the New Hampshire District Court's determination that despite the 2018 Opinion, the 2011 Opinion is correct and the Wire Act only applies to sports gambling. New Hampshire Lottery Comm'n v. Rosen, No. 19-1835, 2021 WL 191771, at *1 (1st Cir. Jan. 20, 2021).

The Firm was unable to find any case law or any other authority that supports the application of the Wire Act to real-money skill games like the Game.

3. International Travel Act of 1961, 18 U.C 1952 (the “Travel Act”)

The Travel Act is part of the federal anti-racketeering laws. It broadly criminalizes traveling, using interstate mail, or any facility in interstate or foreign commerce to carry on any "unlawful activity." 18 USC 1952(a). The term "unlawful activity" includes any "business enterprise involving gambling." 18 USC 1952(b). The term "gambling" is not defined in the Travel Act.

The Firm was unable to find any case law or any other authority that supports the application of the Travel Act to real-money skill games like the Game.

4. The Illegal Gambling Business Act, 18 USC 1955 (the “IGBA”)

Like the Travel Act, the IGBA is a part of the federal anti-racketeering laws. The IGBA specifically prohibits conducting, financing, or owning an "illegal gambling business." 18 USC 1955(a). The term "illegal gambling business" is defined as a "gambling business" that is "a violation of the law of a State...in which it is conducted." 18 USC 1955(b)(1)(i). The term "gambling includes but is not limited to pool-selling, bookmaking, maintaining slot machines, roulette wheels or dice tables, and conducting lotteries, policy, bolita or numbers games, or selling chances therein." 18 USC 1955(b)(4).

A real-money game of skill where participants pay an entry fee for a chance to win a prize (the Game) does not fit the definition of "gambling" in the IGBA. Although the list is not exclusive, the outcomes of the activities listed in the definition are all decided predominantly or materially by chance or involve betting on the result of sporting events. Further, even if the Game was "gambling" under the federal definition in the IGBA, the states where the Developer offers real-money play do not prohibit those games. Where there is no "violation of the law of a State...in which it is conducted," there is no "illegal gambling business," and no violation of the IGBA.

The Firm was unable to find any case law or any other authority that supports the application of the IGBA to real-money skill games like the Game.

Additionally, the Firm concludes that no other federal laws regulate or prohibit real-money skill games like the Game in states where such games are not prohibited by law.

State Law and Skill-Based Gaming.

The Firm has conducted a 50-state survey to determine where the Game’s real-money play function complies with all legal requirements. For the purposes of this analysis, the Firm looked at whether real-money skill games fit within each state's definition of "gambling" and if not, whether there were other factors (such as case law) that restricted the Developer’s ability to offer real-money skill game play. To reiterate, the Developer only allows the actual participants in the skill game to win a prize. The mechanism is no different than a participant paying an entry fee to enter a bowling or tennis tournament where there is a cash prize. the Game does not offer the ability to bet on the play of others - in other words, it does not offer any sportsbook-like wagering. The participant that pays the entry fee uses their own skill to play an obstacle game and is awarded a prize based on their own performance.

The Developer does not offer real-money play in the following jurisdictions: Arizona, Arkansas, Connecticut, Delaware, Florida, Indiana, Louisiana, Maine, Michigan, Montana, Nevada, South Carolina, South Dakota, and Tennessee. The Firm was unable at this time to determine whether the Game complies with all legal requirements in those states for real-money play.

The table below addresses the legality of the Game’s real-money play under the laws of each state where it is offered. Where there is a relevant statute, the portion of that statute is quoted. If case law is the better source of the rule, the case is quoted and cited.

State	Analysis	Applicable statutes or case law
Alabama	"Gambling" requires a stake or wager on an event that is "not under [the] control or influence" of the person making the stake or wager. The outcome of a skill game like the Game is under the control or influence of the player, and therefore is not gambling. The Hurvich decision also supports the conclusion that games of skill are not prohibited gambling. The Game offers an opportunity for a player to pay an entry fee and win real money on a game of skill (with no material chance element) that the player participates in and determines the outcome via their skill. The State does not otherwise regulate or prohibit playing games of skill for real money prizes.	"A person engages in gambling if he stakes or risks something of value upon the outcome of a contest of chance or a future contingent event not under his control or influence, upon an agreement or understanding that he or someone else will receive something of value in the event of a certain outcome." Alabama Code 13A-12-20 "The portion of a city ordinance making the possession or custody of a machine or device with movable parts designed to be set in motion as a means of playing or engaging in a game of skill, an offense, was inconsistent with the policy of the state as evidenced by the state statutes and decisions construing the same, and was therefore invalid." Hurvich v. City of Birmingham, 35 Ala.App. 341, 46 So.2d 577 (Ala.App.1950).
Alaska	"Gambling" means staking or risking something of value on a "contest of chance," which requires that the outcome of such contest depend "in a material degree upon an element of chance. The Game offers an opportunity for a player to pay an entry fee and win real money on a game of skill (with no material chance element) that the player participates in and determines the outcome via their skill. The State does not otherwise regulate or prohibit playing games of skill for real money prizes.	(1) “contest of chance” means a contest, game, gaming scheme, or gaming device in which the outcome depends in a material degree upon an element of chance, notwithstanding that the skill of the contestants may also be a factor; (2) “gambling” means that a person stakes or risks something of value upon the outcome of a contest of chance or a future contingent event not under the person’s control or influence, upon an agreement or understanding that that person or someone else will receive something of value in the event of a certain outcome. Alaskan Statutes 2013, AS 11.66.270
California	California is a predominance jurisdiction, and pure games of skill are not regulated as gambling. The Game offers an opportunity for a player to pay an entry fee and win real money on a game of skill (with no material chance element) that the player participates in and determines the outcome via their skill. The State does not otherwise regulate or prohibit playing games of skill for real money prizes.	California statutes do not define "gambling," rather the elements of "gambling" are established by case law. Chance is one of those elements. "Under California gambling law, “chance” means that winning and losing depend on luck and fortune rather than, or at least more than, judgment and skill." People v. Grewal (App. 5 Dist. 2014).
Colorado	Colorado's definition of "gambling" requires the outcome be contingent on "chance," and does not apply to skill games where chance does not determine the outcome. But even if it did, the exception for bona fide contests of skill in subsection (a) would apply. The Game offers an opportunity for a player to pay an entry fee and win real money on a game of skill (with no material chance element) that the player participates in and determines the outcome via their skill. The State does not otherwise regulate or prohibit playing games of skill for real money prizes.	(2) “Gambling” means risking any money, credit, deposit, or other thing of value for gain contingent in whole or in part upon lot, chance, the operation of a gambling device, or the happening or outcome of an event, including a sporting event, over which the person taking a risk has no control, but does not include: (a) Bona fide contests of skill, speed, strength, or endurance in which awards are made only to entrants or the owners of entries. Colorado Rev Statutes 18-10-103.
Georgia	"Gambling" requires staking or wagering on an outcome that is determined by chance. The Game offers an opportunity for a player to pay an entry fee and win real money on a game of skill (with no material chance element) that the player participates in and determines the outcome via their skill. The State does not otherwise regulate or prohibit playing games of skill for real money prizes.	(2) “Gambling device” means: (A) Any contrivance which for a consideration affords the player an opportunity to obtain money or other thing of value, the award of which is determined by chance even though accompanied by some skill, whether or not the prize is automatically paid by contrivance. Ga Code Ann 16-12-20
Hawaii	"Gambling" requires staking or wagering on an outcome that is determined by chance. The Game offers an opportunity for a player to pay an entry fee and win real money on a game of skill (with no material chance element) that the player participates in and determines the outcome via their skill. The State does not otherwise regulate or prohibit playing games of skill for real money prizes.	(4) “Gambling“. A person engages in gambling if he stakes or risks something of value upon the outcome of a contest of chance or a future contingent event not under his control or influence, upon an agreement or understanding that he or someone else will receive something of value in the event of a certain outcome. Gambling does not include bona fide business transactions valid under the law of contracts, including but not limited to contracts for the purchase or sale at a future date of securities or commodities, and agreements to compensate for loss caused by the happening of chance, including but not limited to contracts of indemnity or guaranty and life, health, or accident insurance." HI Rev Statutes 712-1220(4).
Idaho	The Game offers an opportunity for a player to pay an entry fee and win real money on a game of skill (with no material chance element) that the player participates in and determines the outcome via their skill. The State does not otherwise regulate or prohibit playing games of skill for real money prizes.	"Any skill or judgment practiced by a participant or by someone on his behalf removes enterprise from category of “lottery” as prohibited by Constitution. Const. art. 3, § 20." Braddock v. Family Finance Corp., 1973, 95 Idaho 256, 506 P.2d 824.
Illinois	Illinois expressly exempts prizes awarded to the contestants in a bona fide contest of skill from the definition of prohibited gambling. The Game offers an opportunity for a player to pay an entry fee and win real money on a game of skill (with no material chance element) that the player participates in and determines the outcome via their skill. The State does not otherwise regulate or prohibit playing games of skill for real money prizes.	§ 28-1. Gambling. Participants in any of the following activities shall not be convicted of gambling: (2) Offers of prizes, award or compensation to the actual contestants in any bona fide contest for the determination of skill, speed, strength or endurance or to the owners of animals or vehicles entered in such contest. 720 Ill. Comp. Stat. Ann. 5/28-1
Iowa	Iowa law has separate definitions for “game of skill” and “gambling.” Iowa also has extensive licensing requires and procedures for “gambling activities,” but not for games of skill. See Iowa Code 99B.13. The Game offers an opportunity for a player to pay an entry fee and win real money on a game of skill (with no material chance element) that the player participates in and determines the outcome via their skill. The State does not otherwise regulate or prohibit playing games of skill for real money prizes.	19. “Game of skill” means a game whereby the result is determined by the player’s ability to do a task, such as directing or throwing objects to designated areas or targets, or by maneuvering water or an object into a designated area, or by maneuvering a dragline device to pick up particular items, or by shooting a gun or rifle. Iowa Code 99B.1(19)
Kansas	Kansas requires "chance" as an element of prohibited lottery, and also expressly exempts bona fide contests of skill from the definition. The Game offers an opportunity for a player to pay an entry fee and win real money on a game of skill (with no material chance element) that the player participates in and determines the outcome via their skill. The State does not otherwise regulate or prohibit playing games of skill for real money prizes.	"There are three elements to a lottery as defined by that statute: (1) consideration, (2) a prize, and (3) the award of the prize is determined by chance." Three Kings Holdings, L.L.C. v. Six, 2011, 255 P.3d 1218, 45 Kan.App.2d 1043. Whether a game is one of chance or one of skill, for purposes of determining whether a game is an illegal lottery, is determined by the dominant factor test. Id. Kan Stat Ann 21-4302. Gambling; definitions. (a) “Bet” means a bargain in which the parties agree that, dependent upon chance, one stands to win or lose something of value specified in the agreement. A bet does not include: (2) offers of purses, prizes or premiums to the actual contestants in any bona fide contest for the determination of skill, speed, strength, or endurance or to the bona fide owners of animals or vehicles entered in such a contest;
Kentucky	Kentucky requires an "element of chance" and expressly excludes games where the "ultimate winner is determined by skill" from the definition. The Game offers an opportunity for a player to pay an entry fee and win real money on a game of skill (with no material chance element) that the player participates in and determines the outcome via their skill. The State does not otherwise regulate or prohibit playing games of skill for real money prizes.	(4) (a) “Gambling” means staking or risking something of value upon the outcome of a contest, game, gaming scheme, or gaming device which is based upon an element of chance, in accord with an agreement or understanding that someone will receive something of value in the event of a certain outcome. A contest or game in which eligibility to participate is determined by chance and the ultimate winner is determined by skill shall not be considered to be gambling. Ky Rev Stat Ann 528.010
Maryland	Maryland does not have a statutory definition of “gambling,” but several court cases establish that “gambling” under Maryland law is activity that meets the traditional 3 element test: (1) offering of a prize; (2) giving of consideration; and (3) the awarding of the prize by chance. The Game offers an opportunity for a player to pay an entry fee and win real money on a game of skill (with no material chance element) that the player participates in and determines the outcome via their skill. The State does not otherwise regulate or prohibit playing games of skill for real money prizes.	"The fundamental point is that in each case there is the offering of a prize, the  giving of a consideration for an opportunity to win the prize, and the awarding of the prize by chance." Shelton v. State, 198 Md. 405, 410-11, 84 A.2d 76, 79 (1951) “[Regarding a] slot machine, such machines have three main elements, "consideration, chance, and reward," common to all gambling.” Chesapeake Amusements, Inc. v. Riddle, 363 Md. 16, 24, 766 A.2d 1036, 1040 (2001)
Massachusetts	For a game to be prohibited lottery, chance must be the predominant factor in determining the winner. The Game offers an opportunity for a player to pay an entry fee and win real money on a game of skill (with no material chance element) that the player participates in and determines the outcome via their skill. The State does not otherwise regulate or prohibit playing games of skill for real money prizes.	A “lottery,” within the meaning of statute defining offense of setting up or promoting a lottery, encompasses a large variety of activities, which include three elements: (1) the payment of a price for (2) the possibility of winning a prize, depending upon (3) hazard or chance. Com. v. Stewart-Johnson (2011) 941 N.E.2d 656, 78 Mass.App.Ct. 592, review denied 942 N.E.2d 969, 459 Mass. 1106. Where both elements of chance and skill are present in the game, if element of chance rather than of skill predominates, the game is a “lottery”. Commonwealth v. Lake (1944) 57 N.E.2d 923, 317 Mass. 264. "Where game is not one of pure skill or of pure chance, it is permissible in appropriate instances to look beyond bare mechanics of the game itself and to consider whether, as actually played by people who actually play it, chance or skill is the prevailing practice, as regards issue whether game is a lottery. Commonwealth v. Lake (1944) 57 N.E.2d 923, 317 Mass. 264
Minnesota	Minnesota defines "bet" in terms of chance, and where there is no material chance, there is no "bet," and there is no gambling. The Game offers an opportunity for a player to pay an entry fee and win real money on a game of skill (with no material chance element) that the player participates in and determines the outcome via their skill. The State does not otherwise regulate or prohibit playing games of skill for real money prizes.	A “bet” is the wager of money or property on an incident by which one or both parties stand to win or lose by chance. Gilbert v. Berkheiser, 1924, 157 Minn. 491, 196 N.W. 653. A “gambling device” is anything used as a means for playing for money or other thing of value so that the result depends more largely on chance than on skill. City of St. Paul v. Stovall, 1948, 225 Minn. 309, 30 N.W.2d 638. Device designated as “Turf”, successful operation of which is entirely dependent upon the operator's skill, is not a gambling device or a lottery per se. Op.Atty.Gen., 510-B, June 13, 1951. Where manager of bowling alley conducted bowling tournament and charged entry fee, part of which would be used for prizes, plan did not involve distribution of property by chance but depended upon skill of bowlers, and was not a lottery. Op.Atty.Gen., 510-B, Nov. 25, 1949.
Mississippi	"Gambling" requires staking or wagering on an outcome that is determined by chance. The Game offers an opportunity for a player to pay an entry fee and win real money on a game of skill (with no material chance element) that the player participates in and determines the outcome via their skill. The State does not otherwise regulate or prohibit playing games of skill for real money prizes.	A device is clearly a slot machine of the type prohibited by statute if: (1) its play or operation requires the insertion of money, tokens or similar objects, or payment of consideration; and (2) as a result of playing or operating the device, the player or operator has the potential to win a reward in the form of cash, premiums, merchandise, token, or anything of value; and (3) the winning of some part or all of the potential reward is dependent in substantial part on an element of chance. Mississippi Gaming Com'n v. Henson (Miss. 2001) 800 So.2d 110, rehearing denied.
Missouri	"Gambling" requires staking or wagering on an outcome that is determined by chance. The Game offers an opportunity for a player to pay an entry fee and win real money on a game of skill (with no material chance element) that the player participates in and determines the outcome via their skill. The State does not otherwise regulate or prohibit playing games of skill for real money prizes.	(3) “Contest of chance”, any contest, game, gaming scheme or gaming device in which the outcome depends in a material degree upon an element of chance, notwithstanding that the skill of the contestants may also be a factor therein; (4) “Gambling”, a person engages in gambling when he or she 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, upon an agreement or understanding that he or she will receive something of value in the event of a certain outcome. Mo Ann Stat 572.010
Nebraska	"Gambling" requires staking or wagering on an outcome that is determined by chance. Nebraska also excludes skill contests as "prize contests" from the definition of prohibited gambling. The Game offers an opportunity for a player to pay an entry fee and win real money on a game of skill (with no material chance element) that the player participates in and determines the outcome via their skill. The State does not otherwise regulate or prohibit playing games of skill for real money prizes.	(4) A person engages in gambling if he or she bets something of value upon the outcome of a future event, which outcome is determined by an element of chance, or upon the outcome of a game, contest, or election, or conducts or participates in any bingo, lottery by the sale of pickle cards, lottery, raffle, gift enterprise, or other scheme not authorized or conducted in accordance with the Nebraska Bingo Act, the Nebraska County and City Lottery Act, the Nebraska Lottery and Raffle Act, the Nebraska Pickle Card Lottery Act, the Nebraska Small Lottery and Raffle Act, the State Lottery Act, or section 9-701, But a person does not engage in gambling by: (c) Conducting or participating in a prize contest; Neb Rev Stat Ann 28-1101 (7) Prize contest shall mean any competition in which one or more competitors are awarded something of value as a consequence of winning or achieving a certain result in the competition and (a) the value of such awards made to competitors participating in the contest does not depend upon the number of participants in the contest or upon the amount of consideration, if any, paid for the opportunity to participate in the contest or upon chance and (b) the value or identity of such awards to be made to competitors is published before the competition begins. Neb Rev Stat Ann 28-1101
New Hampshire	"Gambling" requires staking or wagering on an outcome that is determined by chance. The Game offers an opportunity for a player to pay an entry fee and win real money on a game of skill (with no material chance element) that the player participates in and determines the outcome via their skill. The State does not otherwise regulate or prohibit playing games of skill for real money prizes.	(d) “Gambling” means to risk something of value upon a future contingent event not under one's control or influence, upon an agreement or understanding that something of value will be received in the event of a certain outcome. For the purposes of this subparagraph, the phrase “something of value” shall include a sweepstakes ticket or other item obtained in conjunction with the purchase of goods or services that entitles the holder to a share or chance in a sweepstakes where, but for the opportunity to enter the sweepstakes, the value of purchased goods or services is insufficient to justify the purchase or the inducement to purchase the goods or services is the opportunity to play on a gambling machine. (e) “Gambling machine” means any device or equipment which is capable of being used to play sweepstakes or games of chance and which discharges money, or anything that may be exchanged for money, cash equivalent, debit card, merchandise credit card, or opportunities to enter sweepstakes or play games of chance, or displays any symbol entitling a person to receive such a prize. NH Rev Stat Ann 647:2
New Jersey	"Gambling" requires staking or wagering on an outcome that is determined by chance, and New Jersey expressly excludes contests of skill from the definition of prohibited gambling. The Game offers an opportunity for a player to pay an entry fee and win real money on a game of skill (with no material chance element) that the player participates in and determines the outcome via their skill. The State does not otherwise regulate or prohibit playing games of skill for real money prizes.	Notwithstanding the provisions of any other law to the contrary, participation by a New Jersey resident in a contest of skill in which a participant pays an entry fee for the opportunity to win a monetary prize or something else of value shall not be considered a game of chance, shall not constitute unlawful gambling under the laws of this State, NJ Stat Ann 5:19-1
New Mexico	"Gambling" requires staking or wagering on an outcome that is determined by chance, and New Mexico expressly excludes contests of skill from the definition of gambling. The Game offers an opportunity for a player to pay an entry fee and win real money on a game of skill (with no material chance element) that the player participates in and determines the outcome via their skill. The State does not otherwise regulate or prohibit playing games of skill for real money prizes.	B. “bet” means a bargain in which the parties agree that, dependent upon chance, even though accompanied by some skill, one stands to win or lose anything of value specified in the agreement. A bet does not include: (2) offers of purses, prizes or premiums to the actual contestants in any bona fide contest for the determination of skill, speed, strength or endurance or to the bona fide owners of animals or vehicles entered in such contest; NM Stat Ann 30-19-1
New York	"Gambling" requires staking or wagering on an outcome that is determined by chance. The Game offers an opportunity for a player to pay an entry fee and win real money on a game of skill (with no material chance element) that the player participates in and determines the outcome via their skill. The State does not otherwise regulate or prohibit playing games of skill for real money prizes.	1. “Contest of chance” means any contest, game, gaming scheme or gaming device in which the outcome depends in a material degree upon an element of chance, notwithstanding that skill of the contestants may also be a factor therein. 2. “Gambling.” A person engages in gambling when he stakes or risks something of value upon the outcome of a contest of chance or a future contingent event not under his control or influence, upon an agreement or understanding that he will receive something of value in the event of a certain outcome. NY Penal Law 225.00
North Carolina	"Gambling" requires staking or wagering on an outcome that is determined by chance. The Game offers an opportunity for a player to pay an entry fee and win real money on a game of skill (with no material chance element) that the player participates in and determines the outcome via their skill. The State does not otherwise regulate or prohibit playing games of skill for real money prizes.	(8) A video game based on or involving the random or chance matching of different pictures, words, numbers, or symbols not dependent on the skill or dexterity of the player. (9) Any other video game not dependent on skill or dexterity that is played while revealing a prize as the result of an entry into a sweepstakes. NC Gen Stat Ann 14-306.1A A “game of chance” is a game determined entirely or partly by lot or mere luck and in which judgment, practice, skill or adroitness have honestly no office at all or are thwarted by chance. State v. Stroupe, 1953, 76 S.E.2d 313, 238 N.C. 34. Gaming And Lotteries Key Number Symbol 219 A “game of chance” is one in which element of chance predominates over element of skill, while a “game of skill” is one in which element of skill predominates over element of chance. State v. Stroupe, 1953, 76 S.E.2d 313, 238 N.C. 34.
North Dakota	"Gambling" requires staking or wagering on an outcome that is determined by chance, and North Dakota also expressly excludes contests of skill from the definition of gambling. The Game offers an opportunity for a player to pay an entry fee and win real money on a game of skill (with no material chance element) that the player participates in and determines the outcome via their skill. The State does not otherwise regulate or prohibit playing games of skill for real money prizes.	1. “Gambling” means risking any money, credit, deposit, or other thing of value for gain, contingent, wholly or partially, upon lot, chance, the operation of gambling apparatus, or the happening or outcome of an event, including an election or sporting event, over which the person taking the risk has no control. Gambling does not include: a. Lawful contests of skill, speed, strength, or endurance in which awards are made only to entrants or to the owners of entries; ND Cent Code Ann 12.1-28-01
Ohio	"Gambling" requires staking or wagering on an outcome that is determined by chance. The Game offers an opportunity for a player to pay an entry fee and win real money on a game of skill (with no material chance element) that the player participates in and determines the outcome via their skill. The State does not otherwise regulate or prohibit playing games of skill for real money prizes.	(D) “Game of chance” means poker, craps, roulette, or other game in which a player gives anything of value in the hope of gain, the outcome of which is determined largely by chance, but does not include bingo. Ohio Rev Code Ann 2915.01 (West) (QQ)(1)
Oklahoma	"Gambling" requires staking or wagering on an outcome that is determined by chance. The Game offers an opportunity for a player to pay an entry fee and win real money on a game of skill (with no material chance element) that the player participates in and determines the outcome via their skill. The State does not otherwise regulate or prohibit playing games of skill for real money prizes.	Oklahoma generally prohibits offering or participating in “gambling,” which is not defined. Examples in 21 O.S.Supp.2019, § 941 are “poker, roulette, craps or any banking or percentage, or any gambling game played with dice, cards or any device.” "Lottery" is defined under Oklahoma law as: any scheme for the disposal or distribution of property by chance among persons who have paid, or promised, or agreed to pay any valuable consideration for the chance of obtaining such property, or a portion of it, or for any share of or interest in such property, upon any agreement, understanding or expectation that it is to be distributed or disposed of by a lot or chance, whether called a lottery, a raffle, or a gift enterprise, or by whatever name the same may be known. 21 O.S.Supp.2019, § 1051(A) In State ex rel. Draper v. Lynch, 137 P.2d 949 (Okla.1943), the Oklahoma Supreme Court held that any scheme that includes three elements was a lottery. The three elements are: 1. Chance; 2. prize, and 3. consideration (money or something of value). Id. at 953.
Oregon	Oregon prohibits "lotteries," which requires staking or wagering on an outcome that is determined by chance. The Game offers an opportunity for a player to pay an entry fee and win real money on a game of skill (with no material chance element) that the player participates in and determines the outcome via their skill. The State does not otherwise regulate or prohibit playing games of skill for real money prizes.	State constitutional provision stating that, “The Legislative Assembly has no power to authorize, and shall prohibit, casinos from operation in the State of Oregon,” is not a ban on gambling, or even on all casino games, but rather is a prohibition against establishments in Oregon whose dominant use or purpose is for gambling. State ex rel. Dewberry v. Kitzhaber (2013) 313 P.3d 1135, 259 Or.App. 389, review denied 325 P.3d 739, 354 Or. 838. A scheme or device is not a “lottery” if any substantial degree of skill or judgment is involved. State v. Coats, 1938, 158 Or. 122, 74 P.2d 1102.
Pennsylvania	"Gambling" requires staking or wagering on an outcome that is determined by chance. The Game offers an opportunity for a player to pay an entry fee and win real money on a game of skill (with no material chance element) that the player participates in and determines the outcome via their skill. The State does not otherwise regulate or prohibit playing games of skill for real money prizes.	Determination of whether a machine is a gambling device per se is made by comparing the characteristics of the machine against elements necessary to gambling: (1) consideration; (2) result determined by chance rather than skill; and (3) reward. Com. v. Wintel, Inc., 829 A.2d 753, Cmwlth. 2003.
Rhode Island	Rhode Island prohibits lotteries, which require an element of chance to be dominant. In other words, prohibited conduct requires staking or wagering on an outcome that is determined by chance. The Game offers an opportunity for a player to pay an entry fee and win real money on a game of skill (with no material chance element) that the player participates in and determines the outcome via their skill. The State does not otherwise regulate or prohibit playing games of skill for real money prizes.	A “lottery” proscribed in either a State Constitution or statute is a scheme or a plan having three essential elements of consideration, chance, and prize; if one element is absent, the scheme is not a lottery, regardless of its purpose, and if all elements are present, the scheme is a lottery, regardless of purpose of its sponsor. In re Advisory Opinion to Governor, 856 A.2d 320 (2004). Under the dominant factor doctrine, a scheme is a “lottery” under lottery provision of State Constitution when an element of chance dominates the distribution of prizes, even though such a distribution is affected to some degree by the exercise of skill or judgment. Id. A “lottery” as proscribed in State Constitution or statute is defined as scheme or plan having three essential elements: consideration, chance, and prize. Roberts v. Communications Inv. Club of Woonsocket, 431 A.2d 1206 (1981). All three elements, consideration, chance and prize, must be present before scheme can be termed “lottery”; if all elements are present, scheme is “lottery,” regardless of purpose of its sponsor. Id.
Texas	"Gambling" requires staking or wagering on an outcome that is determined by chance. Texas also excludes prizes awarded to a participants in contests of skill from the definition of "bet." The Game offers an opportunity for a player to pay an entry fee and win real money on a game of skill (with no material chance element) that the player participates in and determines the outcome via their skill. The State does not otherwise regulate or prohibit playing games of skill for real money prizes.	(1) “Bet” means an agreement to win or lose something of value solely or partially by chance. A bet does not include: (A) contracts of indemnity or guaranty, or life, health, property, or accident insurance; (B) an offer of a prize, award, or compensation to the actual contestants in a bona fide contest for the determination of skill, speed, strength, or endurance or to the owners of animals, vehicles, watercraft, or aircraft entered in a contest; TX Penal Code 47.01
Utah	Gambling requires an element of chance under State law. Where skill is the predominant element, the State does not prohibit the game. The Game offers an opportunity for a player to pay an entry fee and win real money on a game of skill (with no material chance element) that the player participates in and determines the outcome via their skill. The State does not otherwise regulate or prohibit playing games of skill for real money prizes.	(8) (a) “Gambling” means risking anything of value for a return or risking anything of value upon the outcome of a contest, game, gaming scheme, or gaming device when the return or outcome: (i) is based on an element of chance, regardless of: (A) the existence of a preview or pre-reveal feature in the device, contest, or game; or (B) whether the preview or pre-reveal feature described in Subsection (8)(a)(i)(A) allows users to see individual or successive outcomes; and (ii) is in accord with an agreement or understanding that someone will receive anything of value in the event of a certain outcome. Utah Code Ann. § 76-10-1101 It was games of chance that Legislature intended to prohibit and not chess, checkers, billiards, bowling and other games in which skill is predominating element. D'Orio v. Startup Candy Co., 71 Utah 410, 266 P. 1037 (Utah 1928).
Vermont	Vermont prohibits lotteries, which require staking or wagering on an outcome that is determined by chance, and excludes consideration paid to participate in a game of skill. The Game offers an opportunity for a player to pay an entry fee and win real money on a game of skill (with no material chance element) that the player participates in and determines the outcome via their skill. The State does not otherwise regulate or prohibit playing games of skill for real money prizes.	Nothing in this chapter shall be construed to prohibit a person from requiring or paying any kind of entry fee, service charge, purchase, or similar consideration in order to enter, or continue to remain eligible for, a game of skill or other promotion that is not based on chance. Vt Stat Ann tit. 9, § 2481x Under definition of “lottery” as scheme whereby one or more prizes are distributed by chance among persons who “pay” a consideration for chance to win them, word “pay” includes doing of act or exercise of forbearance, and it is only necessary that the person entering the competition shall do something or give up some right. P.L. 8683. State v. Wilson, 1938, 109 Vt. 349, 196 A. 757.
Virginia	Virginia excludes contests of skill from the definition of “gambling” under 18.2-333 and the definition of “illegal gambling” requires chance under 18.2-325. In 2020, Virginia passed a law that prohibits so-called “skill games,” and added a definition of “skill game” to its anti-gambling state. However, the definition of “skill game” refers to “nudge machines” or physical machines that resemble slots, but have a trivial “skill” element in an attempt to make them evade the definition of “illegal gambling” under state law. These cabinets and terminals were frequently found at convenience stores or truck stops, and are the subject to several lawsuits from small business owners. The definition of “skill game” however does not apply to video games or mobile app solitaire games. For one, there is no “insertion of a coin, currency, ticket, token, or similar object to operate…” Nor is the game determined by “any element of skill” - rather, it is entirely determined by skill. It is clear from the plain language definition, as well as the review of legislative intent that the new law does not apply to video games or mobile phone games. The Game offers an opportunity for a player to pay an entry fee and win real money on a game of skill (with no material chance element) that the player participates in and determines the outcome via their skill. The State does not otherwise regulate or prohibit playing games of skill for real money prizes.	Code § 18.2–333 provides that Nothing in this article shall be construed to prevent any contest of speed or skill between men ... where participants may receive prizes or different percentages of a purse, stake or premium dependent upon whether they win or lose or dependent upon their position or score at the end of such contest. Daniels v. Mobley, 285 Va. 402; 737 S.E.2d 895, 901 (2013) 6. "Skill game" means an electronic, computerized, or mechanical contrivance, terminal, machine, or other device that requires the insertion of a coin, currency, ticket, token, or similar object to operate, activate, or play a game, the outcome of which is determined by any element of skill of the player and that may deliver or entitle the person playing or operating the device to receive cash; cash equivalents, gift cards, vouchers, billets, tickets, tokens, or electronic credits to be exchanged for cash; merchandise; or anything of value whether the payoff is made automatically from the device or manually. Va. Code Ann. § 18.2-325. “Illegal gambling" means the making, placing, or receipt of any bet or wager in the Commonwealth of money or other consideration or thing of value, made in exchange for a chance to win a prize, stake, or other consideration or thing of value, dependent upon the result of any game, contest, or any other event the outcome of which is uncertain or a matter of chance, whether such game, contest, or event occurs or is to occur inside or outside the limits of the Commonwealth.” Va. Code Ann. § 18.2-325
Washington	Washington prohibits lotteries, which require staking or wagering on an outcome that is determined by chance. The Game offers an opportunity for a player to pay an entry fee and win real money on a game of skill (with no material chance element) that the player participates in and determines the outcome via their skill. The State does not otherwise regulate or prohibit playing games of skill for real money prizes.	“Lottery,” as used in this chapter, means a scheme for the distribution of money or property by chance, among persons who have paid or agreed to pay a valuable consideration for the chance. Wash Rev Code Ann 9.46.0257 Element of chance, necessary to finding game or promotional scheme to be lottery is measured by qualitative test, that is chance must be integral part which influences result; it is not measured by quantitative proportion of skill and chance in viewing scheme as whole; fact that skill alone eliminates many of contestants does not make contest any less lottery if chance then proximately influences final result. Seattle Times Co. v. Tielsch (1972) 80 Wash.2d 502, 495 P.2d 1366
West Virginia	"Gambling" requires staking or wagering on an outcome that is determined by chance. The Game offers an opportunity for a player to pay an entry fee and win real money on a game of skill (with no material chance element) that the player participates in and determines the outcome via their skill. The State does not otherwise regulate or prohibit playing games of skill for real money prizes.	Under W Va Code Section 61-10-11, it is unlawful to play any private "lottery or raffle" that is won by "using dice, or by any other game of chance." Under Section 61-10-5, it is unlawful to "bet or wage money or other thing of value on any game of chance. 2016 Cole Opinion of the W. Virginia Attorney General opined that fantasy sports played for money is not prohibited gambling. "We read state law to prohibit only betting upon games decided at least predominantly by chance. Fantasy sports games, as defined in the Senate Bill, are not so decided. Rather, they are determined predominantly by skill."
Wisconsin	"Gambling" requires staking or wagering on an outcome that is determined by chance. Wisconsin also expressly excludes prizes to participants in a contest of skill from the definition of "bet." The Game offers an opportunity for a player to pay an entry fee and win real money on a game of skill (with no material chance element) that the player participates in and determines the outcome via their skill. The State does not otherwise regulate or prohibit playing games of skill for real money prizes.	(1) Bet. A bet is a bargain in which the parties agree that, dependent upon chance even though accompanied by some skill, one stands to win or lose something of value specified in the agreement. But a bet does not include: (b) Offers of purses, prizes or premiums to the actual contestants in any bona fide contest for the determination of skill, speed, strength, or endurance or to the bona fide owners of animals or vehicles entered in such contest; Wis Stat Ann 945.01 For there to be a lottery, chance rather than skill must be dominant factor controlling the award. State v. Dahlk (App. 1983) 330 N.W.2d 611, 111 Wis.2d 287.
Wyoming	"Gambling" requires staking or wagering on an outcome that is determined by chance. Wyoming also expressly excludes bona fide contests of skill from the definition of "gambling." The Game offers an opportunity for a player to pay an entry fee and win real money on a game of skill (with no material chance element) that the player participates in and determines the outcome via their skill. The State does not otherwise regulate or prohibit playing games of skill for real money prizes.	(iii) “Gambling” means risking any property for gain contingent in whole or in part upon lot, chance, the operation of a gambling device or the happening or outcome of an event, including a sporting event, over which the person taking a risk has no control, but does not include any of the following: (A) Bona fide contests of skill, speed, strength or endurance in which awards are made only to entrants or the owners of entries. Wyo Stat Ann 6-7-101

Qualifications of Outside Counsel and Disclaimer

Artaev at Law PLLC (the "Firm") is qualified outside legal counsel that has been retained by the Developer to provide this memorandum. The managing partner of the Firm is Dan Artaev, who is a licensed attorney and has been practicing in Michigan since 2010. Mr. Artaev has advised businesses on various topics, including compliance with gambling or gaming laws across the United States. Mr. Artaev has also evaluated a number of real-money skill games and provided legal opinions confirming their legality in response to inquiries from, among others, Facebook and Apple. The legal conclusions in this memorandum are based on the facts, data, and game information provided by the Developer. The Firm has tested the gameplay and reviewed the Game concept based on the facts, data, and game information provided by the Developer, and assumes the information provided is true and correct for the purposes of this memorandum.

Conclusion

For the reasons stated, it is the opinion of the Firm that the Developer’s real-money skill-based game complies with United States federal law and is not unlawful in the jurisdictions listed in the table above.

If you have any questions about this memorandum, please contact me at your convenience.

Sincerely,

Dan Artaev

Managing Partner

Artaev at Law PLLC

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^[1] Per the analysis below, the Firm has also added Florida, Michigan, and Nevada to the list of restricted states. Florida law defines “gambling” as “[w]hoever plays or engages in any game at cards, keno, roulette, faro or other game of chance, at any place, by any device whatever, for money or other thing of value, shall be guilty of a misdemeanor.” Fla. Stat. Ann. 849.08. It is not clear whether “any game at cards” refers to card games in general or only those games that are games of chance. Michigan expressly includes “games of skill” in the definition of regulated Internet Game its 2019 Lawful Internet Gaming Act. MCL 432.302. Nevada’s broad gambling laws define “Game” or “gambling game” [as] any game played with cards, dice, equipment or any mechanical or electronic device or machine for money.” Nev. Rev. Stat. Ann. § 463.0152. Like with Florida, it is not clear based on that definition whether a real-money skill-based card game is included in that definition.