HB-6420, As Passed Senate, December 20, 2018

SENATE SUBSTITUTE FOR

HOUSE BILL NO. 6420

A bill to regulate the conduct of fantasy contests; to protect

Michigan participants in fantasy contests; to require licensing of

the operators of fantasy contests; to impose fees on the operators

of fantasy contests; to provide for the powers and duties of

certain state governmental officers and entities; to prohibit

violations of this act; to prescribe civil sanctions; and to

prescribe penalties.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 1. This act shall be known and may be cited as the

"fantasy contests consumer protection act".

Sec. 2. As used in this act:

(a) "Athletic event" means a real world professional,

collegiate, or nationally recognized sports game, contest, or

competition that involves the physical exertion and skill of the

participating individual athletes, as to which each participant is

physically present at the location in which the sports game,

contest, or competition occurs, and the outcome of the sports game,

contest, or competition is directly dependent on the performance of

the participating athletes.

(b) "Board" means the Michigan gaming control board created

under section 4 of the Michigan gaming control and revenue act,

1996 IL 1, MCL 432.204.

fantasy contest operator requires to be paid by a fantasy contest

player to participate in a fantasy contest.

(d) "Fantasy contest" means a simulated game or contest with

an entry fee that meets all of the following conditions:

(i) No fantasy contest team is composed of the entire roster

of a real world sports team.

(ii) No fantasy contest team is composed entirely of

individual athletes who are members of the same real world sports

team.

(iii) Each prize and award or the value of all prizes and

awards offered to winning fantasy contest players is made known to

the fantasy contest players in advance of the fantasy contest.

(iv) Each winning outcome reflects the relative knowledge and

skill of the fantasy contest players and are determined by the

aggregated statistical results of the performance of multiple

individual athletes selected by the fantasy contest player to form

the fantasy contest team, whose individual performances in the

fantasy contest directly correspond with the actual performance of

those athletes in the athletic event in which those individual

athletes participated.

(v) A winning outcome is not based on randomized or historical

events, or on the score, point spread, or performance in an

athletic event of a single real-world sports team, a single

athlete, or any combination of real-world sports teams.

(vi) The fantasy contest does not constitute or involve and is

not based on any of the following:

(A) Racing involving animals.

(B) A game or contest ordinarily offered by a horse track or

casino for money, credit, or any representative of value, including

any races, games, or contests involving horses or that are played

with cards or dice.

electronic device, equipment, or machine, including computers and

other cashless wagering systems.

(D) Poker, blackjack, faro, monte, keno, bingo, fan tan,

twenty one, seven and a half, Klondike, craps, chuck a luck,

Chinese chuck a luck, Wheel of Fortune, Chemin de Fer, Baccarat,

Pai Gow, Beat the Banker, Panguingui, roulette, or other banking or

percentage games.

(E) Any other game or device authorized by the board under the

Michigan gaming control and revenue act, 1996 IL 1, MCL 432.201 to

432.226.

(vii) A fantasy contest must not be based on a high school or

youth sporting event or any event that is not an athletic event.

(viii) A fantasy contest must not be conducted in a manner

that involves or results in betting on a race, game, contest, or on

sports.

(e) "Fantasy contest operator" means a person that operates,

carries on, conducts, maintains, exposes, or offers for play

fantasy contests and awards prizes of value.

(f) "Fantasy contest platform" means any digital or online

method through which a fantasy contest operator provides access to

a fantasy contest.

(g) "Fantasy contest player" means an individual who

participates in a fantasy contest offered by a fantasy contest

operator.

(h) "Fantasy contest team" means the simulated team composed

of multiple individual athletes, each of whom is a member of a real

world sports team, that a fantasy contest player selects to compete

in a fantasy contest.

(i) "Highly experienced player" means a fantasy contest player

who has done at least 1 of the following:

(i) Entered more than 1,000 fantasy contests offered by a

single fantasy contest operator.

(ii) Won more than 3 prizes valued at $1,000.00 each or more

from a single fantasy contest operator.

(j) "Holding company" means a corporation, firm, partnership,

limited partnership, limited liability company, trust, or other

form of business organization that is not an individual and that

directly or indirectly does either of the following:

(i) Holds an ownership interest of 5% or more, as determined

by the board, in a fantasy contest operator.

(ii) Holds voting rights with the power to vote 5% or more of

the outstanding voting rights of a fantasy contest operator.

(k) "Key employee" means an employee of a fantasy contest

operator who has the power to exercise significant influence over

decisions concerning the fantasy contest operator.

(l) "Licensed fantasy contest operator" means a fantasy

contest operator that is licensed by the board under this act.

(m) "Management company" means a person retained by a fantasy

contest operator to manage a fantasy contest platform and provide

general administration and other operational services.

(n) "Person" means an individual, partnership, corporation,

association, or other legal entity. Person includes a sovereign

tribal government and its business entities.

(o) "Protected information" means information related to the

playing of fantasy contests by fantasy contest players that is

obtained by a fantasy contest operator.

(p) "Script" means a list of commands that a fantasy-contest-

related computer program can execute and that is created by a

fantasy contest player, or by a third party for a fantasy contest

player, to automate processes on a fantasy contest platform.

Sec. 3. (1) Except as otherwise provided in this section, a

person shall not offer fantasy contests in this state unless the

person is a licensed fantasy contest operator.

(2) An individual may offer, solely from his or her private

residence, 1 or more fantasy contests, if none of the contests are

made available to the general public, each of the contests is

limited to no more than 15 total fantasy contest players, and the

individual collects no more than $10,000.00 in total entry fees for

all fantasy contests offered in a calendar year, at least 95% of

which entry fees are awarded to the fantasy contest players.

(3) A person that met the definition of fantasy contest

operator in this state on May 1, 2017 may continue offering fantasy

contests until the fantasy contest operator is issued or denied a

license under this act if the person applies for a license within

60 days after the date the application for the license is made

available by the board.

(4) A casino licensee licensed by the board under the Michigan

gaming control and revenue act, 1996 IL 1, MCL 432.201 to 432.226,

may offer and conduct fantasy contests without applying for or

holding a license under this act.

(5) To ensure the integrity of fantasy contests, the board has

jurisdiction over each person involved in the conduct of a fantasy

contest. The board may promulgate rules related to the conduct of

fantasy contests, including rules setting forth penalties for

violations of this act or any rules promulgated under this act.

(6) A person seeking to be licensed as a fantasy contest

operator shall submit an application, with the applicable fee, to

the board. The applicant shall provide sufficient documentation to

the board to ensure that the applicant meets the requirements for

licensure as determined by the board, including, but not limited

to, documentation of all of the following:

(a) The name of the applicant.

(b) The location of the applicant's principal place of

business.

(d) The applicant's Social Security number or, if applicable,

the applicant's federal tax identification number.

(e) The name and address of each person that holds a 5% or

greater ownership interest in the applicant or in shares of the

applicant.

(f) The applicant's criminal record, if any, or, if the

applicant is a business entity, any criminal record of an

individual who is a director, officer, or key employee of, or who

has a 5% or greater ownership interest in, the applicant.

(g) Any ownership interest that a director, officer, key

employee, or individual owner of 5% or greater of the applicant

holds in a person that is or was a fantasy contest operator or

similar entity in any jurisdiction.

(h) An identification of any business, including, if

applicable, the state of incorporation or registration, in

which an applicant, director, officer, key employee, or individual

owner of 5% or greater, has an equity interest of 5% or more.

(i) Whether an applicant, director, officer, key employee, or

individual owner of 5% or greater has ever applied for or been

granted any license, registration, or certificate issued by a

licensing authority in this state or any other jurisdiction.

(j) Whether an applicant, director, officer, key employee, or

individual owner of 5% or greater has filed, or been served with, a

complaint or other notice filed by a public body regarding the

delinquency in payment of, or dispute over filings concerning, the

payment of any tax required under federal, state, or local law,

including the amount, the type of tax, the taxing agency, and the

time periods involved.

(k) A description of any physical facility operated by the

applicant in this state, the employees who work at the facility,

and the nature of the business conducted at the facility.

(l) Information sufficient to show, as determined by the

board, that the applicant can meet the requirements of procedures

submitted by the applicant under this act and under any rules

promulgated under this act.

(7) The board may require licensure of a holding company,

management company, or any other person it considers sufficiently

connected to the fantasy contest operator if that licensure is

necessary to preserve the integrity of fantasy contests and protect

fantasy contest players.

(8) A license issued under this section is valid for 1 year.

The board shall renew a license each year if the applicant

demonstrates continued eligibility for licensure under this act and

pays the renewal fee. Notwithstanding this subsection, the board

may investigate a licensee at any time the board determines it is

necessary to ensure that the licensee remains in compliance with

this act and the rules promulgated under this act.

(9) The initial license fee is $50,000.00. The annual license

renewal fee is $20,000.00. The board may assess investigative costs

if the cost of a licensure investigation exceeds the amount of the

license or renewal fee.

Sec. 4. (1) As a condition of licensure, a fantasy contest

operator must submit to, and receive approval from, the board

commercially reasonable procedures and internal controls intended

to accomplish all of the following:

(a) Prevent the fantasy contest operator, its owners,

directors, officers, and employees, and any relative of any of

these individuals living in the same household, from participating

in a fantasy contest other than a fantasy contest offered by the

fantasy contest operator for which participation is limited to the

persons described in this subdivision.

(b) Prevent the employees or agents of the fantasy contest

operator from sharing protected information with third parties

unless the protected information is otherwise made publicly

available.

from participating in a fantasy contest that is based on the

athletic event.

(d) Establish the number of entries a single fantasy contest

player may enter in a single fantasy contest and take reasonable

steps to prevent fantasy contest players from submitting more than

the allowable number of entries.

(e) Identify each highly experienced fantasy contest player by

a symbol attached to the highly experienced fantasy contest

player's username.

(f) Offer some fantasy contests that are open only to players

other than highly experienced fantasy contest players.

(g) Either of the following:

(i) Segregate the deposits in the fantasy contest players'

accounts from operational money.

(ii) Maintain a reserve in the form of cash, cash equivalents,

an irrevocable letter of credit, a bond, or a combination of these,

the aggregate amount of which exceeds the total dollar value amount

of deposits in the fantasy contest players' accounts, and which

reserve must not be used for operational activities.

(h) Ensure compliance with the applicable state and federal

requirements to protect the privacy and online security of a

fantasy contest player and the fantasy contest player's account.

(i) Otherwise ensure the integrity of fantasy contests.

(2) A licensed fantasy contest operator shall comply with the

procedures and internal controls that are submitted to the board

under subsection (1) and approved by the board. A licensed fantasy

contest operator may make technical adjustments to its procedures

and internal controls if the adjustments are not material and it

notifies the board in advance and continues to meet or exceed the

standards required by this act and any rules promulgated by the

board.

(3) Procedures submitted to the board under subsection (1) are

confidential and privileged, are not subject to disclosure under

the freedom of information act, 1976 PA 442, MCL 15.231 to 15.246,

are not subject to subpoena, and are not subject to discovery or

admissible in evidence in a private civil action.

Sec. 5. By July 1 of each year, a licensed fantasy contest

operator shall contract with a certified public accountant to

perform an independent audit in accordance with generally accepted

accounting principles of the financial condition of the licensed

fantasy contest operator's total operations for the previous fiscal

year and to ensure compliance with section 4(1)(g) and for any

other purpose the board considers appropriate. A licensed fantasy

contest operator shall submit the audit results under this section

to the board not later than 180 days after the end of the fantasy

contest operator's fiscal year. The results of an audit submitted

to the board under this section is confidential and privileged, is

not subject to disclosure under the freedom of information act,

1976 PA 442, MCL 15.231 to 15.246, is not subject to subpoena, and

is not subject to discovery or admissible in evidence in a private

civil action.

Sec. 6. A fantasy contest operator shall prohibit an

individual who is less than 18 years of age from participating in a

fantasy contest.

Sec. 7. A licensed fantasy contest operator shall not do any

of the following:

(a) Allow the use of a script unless the script is made

readily available to all fantasy contest players.

(b) Employ false, deceptive, or misleading advertising, or

advertising that is not based on fact.

following:

(i) Individuals who have restricted themselves from entering a

fantasy contest under the procedures established by the board.

(ii) Individuals who are less than 18 years of age.

Sec. 8. (1) A fantasy contest must not be offered on, at, or

from any of the following:

(a) A kiosk or machine physically located in a retail business

location, bar, restaurant, or other commercial establishment.

(b) A place of public accommodation.

association, or similar membership-based organization.

(2) This section does not apply to a casino licensee licensed

by the board under the Michigan gaming control and revenue act,

1996 IL 1, 432.201 to 432.226.

Sec. 9. (1) A licensed fantasy contest operator shall make

available on the licensed fantasy contest operator's website

information about resources relating to compulsive gaming behavior

including a telephone number or link to information on compulsive

gaming behavior and where to seek assistance for compulsive gaming

behavior.

(2) A licensed fantasy contest operator shall make available,

by website, telephone, or online chat, a means to allow an

individual to irrevocably restrict the individual's ability to

enter a fantasy contest and to select the length of time the

restriction will be in effect.

(3) A licensed fantasy contest operator shall offer a fantasy

contest player access to the fantasy contest player's playing

history, including a summary of entry fees expended, games played,

previous lineups, and prizes awarded.

Sec. 10. The board shall promulgate rules to implement this

act under the administrative procedures act of 1969, 1969 PA 306,

MCL 24.201 to 24.328, including, but not limited to, rules that

address all of the following:

(a) Requiring a fantasy contest operator to implement

commercially reasonable procedures to prohibit access to both of

the following:

(i) Individuals who request to restrict themselves from

playing fantasy contests.

(ii) Individuals who are less than 18 years of age.

(b) Prescribing requirements related to beginning players and

highly experienced players.

violates this act or a rule promulgated under this act.

(d) Providing a fantasy contest player with access to

information on playing responsibly and how to ask for assistance

for compulsive gaming behavior.

(e) Requiring an applicant for a fantasy contest operator

license to designate at least 1 key employee as a condition for

obtaining a license.

(f) Any other rule the board determines is necessary to ensure

the integrity of fantasy contests.

Sec. 11. (1) A licensed fantasy contest operator shall retain

and maintain in a place secure from theft, loss, or destruction all

of the records required to be maintained under this act and the

rules promulgated under this act for at least 3 years after the

date of the record's creation.

(2) A licensed fantasy contest operator shall organize all

records under subsection (1) in a manner that enables the licensed

fantasy contest operator to provide the board with the records.

(3) Information obtained under this section is confidential

and privileged, is not subject to disclosure under the freedom of

information act, 1976 PA 442, MCL 15.231 to 15.246, is not subject

to subpoena, and is not subject to discovery or admissible as

evidence in a private civil action.

Sec. 12. (1) The board may suspend, revoke, or restrict the

license of a fantasy contest operator that violates this act, a

rule promulgated under this act, or an order of the board.

(2) The board may impose a civil fine of not more than

$20,000.00 for a violation of this act, a rule promulgated under

this act, or an order of the board.

(3) A fine imposed under this section is payable to this state

and may be recovered in a civil action brought by the board.

Sec. 13. (1) A person shall not do any of the following:

(a) Except as otherwise provided in section 4, offer a fantasy

contest in this state unless the person is licensed by the board.

(b) Knowingly make a false statement on an application for a

license to be issued under this act.

authorized representative of the board while under oath.

(2) The board shall not issue a license under this act to a

person that violates subsection (1).

(3) A person that violates subsection (1)(a) is guilty of a

crime as follows:

(a) For the first or second violation, the person is guilty of

a misdemeanor punishable by imprisonment for not more than 1 year

or a fine of not more than $10,000.00, or both.

(b) For a third or subsequent violation, the person is guilty

of a felony punishable by imprisonment for not more than 5 years or

a fine of not more than $50,000.00, or both.

(4) The board may issue a cease and desist order and obtain

injunctive relief against a person that violates this act.

Sec. 14. A fantasy contest conducted under this act does not

violate the Michigan penal code, 1931 PA 328, MCL 750.1 to 750.568.

This act does not create an exemption to a violation of chapter

XLIV of the Michigan penal code, 1931 PA 328, MCL 750.301 to

750.315a.

Enacting section 1. This act takes effect 90 days after the

date it is enacted into law.