Google Now Allows Daily Fantasy Sports Advertisements in Limited States

By: Jordan Briggs

On July 15, 2024, Google Ads updated its Gambling and games policy (the “Policy”)[1] to allow Daily Fantasy Sports (“DFS”) and lottery couriers to advertise in certain US states. Advertisers for DFS or lottery couriers must be licensed by at least one state and certified with Google prior to running these ads. Even after these steps, DFS advertisers may only advertise in seventeen states. The current version of the Policy does not make these requirements clear; contains conflicting information; and provides very broad, potentially confusing, definitions for different categories of gambling and games. These issues with the Policy are a good reminder to DFS operators and lottery couriers to take ownership of their legal responsibilities in each state in which they operate or advertise.

Types of Businesses Which May Advertise Under the Updated Policy

With this update, the Policy categorizes advertisements into the following four categories: offline gambling (i.e., physical casinos), online gambling, social casino games, and online non-casino games.

“Online gambling” not only includes online casinos, online sports betting, and “games played with virtual currencies or items that have real-world value,” but also includes sites promoting online gambling. “Social casino games” are “online simulated gambling games where there is no opportunity to win anything of value.” Finally, “online non-casino games” are games “where money or other items of value are paid or wagered in exchange for the opportunity to win real money or prizes based on the outcome of the game.” Examples include “fantasy sports” and “match-three” video games played for money or prizes.

These definitions may become a source of confusion. First, “fantasy sports” and DFS are not necessarily the same, so providing only “fantasy sports” as an example of an online non-casino game is misleading. Second, the difference between what constitutes “online gambling” and what is an “online non-casino game,” except for DFS, under the Policy is not clear. “Wagering” real money to receive something of value may or may not be “gambling” on its face depending on state law. For example, Florida prohibits wagering on the result of “any trial or contest of skill, speed or power or endurance of human or beast . . . .”[2]

Determining which category the advertised business falls into is necessary because the category determines the next steps in Google’s approval process. Prospective advertisers for online gambling content, DFS,[3] or social casino games must receive certification from Google in order to run these ads. Based on the currently published draft of the Policy, it appears online non-casino games other than DFS may advertise without certification. However, later parts of the Policy state that advertisements for online non-casino games are generally not allowed, with DFS being the only exception.[4]

Google Ad Certification—Application Forms

Advertisers of online gambling or DFS targeting the United States should fill out the Gambling application: Single country license. Applicants must be logged into a Google account and provide the following: the country in which they want to advertise; contact name; company name; email address; Google Ads Customer ID; website(s); and select whether the entity or content it promotes is either DFS, sports betting, online casino, horse racing, or lottery couriers.

There is a separate form social casino games advertisers must complete. Unlike the gambling application, social casinos may apply to advertise in multiple countries in the same application. In addition to basic contact information, the form applicants must agree to the Advertising Social Casino Games Terms and Conditions. By agreeing to these terms, the advertiser agrees that the social casino site does not host or promote, either directly or by advertisements allowed on their site, any gambling or paying of something of value “in exchange for the opportunity to win real money or prizes based on the outcome of the game.”

Google Ad Certification—Requirements

Online gambling advertisers must be appropriately licensed in the state(s) in which they want to advertise. Additionally, lottery courier advertisers must hold at least one state license even if the ads only target states which do not require a license. Further, the ads themselves must not target people under twenty-one years old and must either include a problem gambling warning and assistance resource information or link to a webpage with this information.

Likewise, the DFS operator that is the subject of the ads must be licensed in at least one state. Though it is not currently included in the Policy, Google’s Policy Change Log, states that Google will only accept and run ads for DFS operators in Alaska, California, Florida, Georgia, Kentucky, Minnesota, Nebraska, New Mexico, North Carolina, North Dakota, Oklahoma, Rhode Island, South Dakota, Utah, West Virginia, Wisconsin, and Wyoming. None of these states currently have a licensing scheme for DFS operators, so it appears that the operator must be licensed in a state in which it cannot use Google to advertise. Additionally, DFS ads may not target people under eighteen years old, cannot imply that they are affiliated with a school, must link to a page that includes a disclaimer that the service is for adults, and must either include or link to page that includes problem gambling information.

Google has the right and ability to stop running an ad, withdraw a certification, or further restrict an advertising account if the advertised product or service is not legal in the target jurisdiction or otherwise breaks the Policy.

The treatment of DFS in states without licensing schemes can change quickly and is not always consistent. For example, Florida, one of the states for which Google will now accept DFS ads, has recently increased its focus on and opposition to DFS.[5] While there is some speculation that Florida is only opposed to certain game formats,[6] and most major DFS operators are still in the state, potential DFS advertisers are ultimately responsible for knowing whether or not the product they advertise is able to operate in Florida. Google certification for DFS advertising does not confer or affirm any legal rights to operate in any state.

[1] Last visited July 16, 2024.

[2] F.S.A. § 849.14. DFS contests have been offered in Florida and other states without DFS licensing schemes under favorable precedent and caselaw to support the legal analysis that only games of chance are prohibited under these states’ anti-gambling statutes, and, as games of skill, DFS contests are not prohibited.

[3] The Google Policy section on “online non-casino games” does not mention certification, even though a section lower on the page behind a drop-down arrow and the policy change log both state that DFS advertisers must be certified.

[4] Based on Google’s Policy Change Log’s reference to DFS only, we believe that Google intended to only allow DFS ads under this category. However, that is not clear on the Policy’s face.

[5] The Florida Gaming Control Commission (“FGCC”) ordered PrizePicks, Underdog Fantasy, and Betr to exit the state by March 1, 2024. Mike Mazzeo, “Underdog, PrizePicks to Pull Out of Florida Under Regulator Pressure,” Legal Sports Report (Feb. 15, 2024), available at: https://www.legalsportsreport.com/167182/dfs-fantasy-sports-operators-to-pull-out-of-florida-under-regulatory-pressure/ (last visited July 16, 2024).

[6] PrizePicks and Underdog Fantasy reentered Florida in April 2024 with strictly peer-to-peer offerings. It is unclear whether either company did so in consultation with anyone from FGCC. Andrew Brennan, PrizePicks, Underdog Daily Fantasy Sports Return to Florida Under New Format,” Sportsbook Review (April 23, 2024 1:01PM), available at: https://www.sportsbookreview.com/news/prizepicks-underdog-dfs-return-to-florida-under-new-format-april-23-2024/ (last visited July 16, 2024).