Open Access Research Article
FREEWHEELING FANTASY GAMING IN INDIA
Published Paper
Article Details
FREEWHEELING FANTASY GAMING IN
INDIA
AUTHORED BY - ADITYA TALWAR*
& SAHIBPREET SINGH**
ABSTRACT
The paper offers an in-depth
examination of the burgeoning domain of fantasy gaming in India, encompassing
its multifaceted dimensions of legal, regulatory, and technological paradigms.
Fantasy gaming, an online platform enabling users to assemble virtual teams of
real-life athletes across diverse sports, operates on the premise of
skill-based predictions of player performance, thereby diverging from
traditional sports betting. Despite its meteoric rise catalyzed by increased
smartphone penetration and internet accessibility, the industry contends with a
fragmented legal framework due to varied state regulations and a lack of a
centralized legislative edifice. Crucially, the Public Gambling Act, 1867,
forms the bedrock of legal scrutiny concerning gambling and betting in India.
The judiciary's pronouncement, notably the Supreme Court's assertion deeming
fantasy gaming a game of skill, underscores the pivotal role of superior knowledge,
judgment, and user attention in its operations. However, the absence of a
unified regulatory framework has resulted in a patchwork of state-specific
legislations, exemplified by outright bans in some states and regulated
frameworks in others. Key judicial precedents, such as the cases of K.R.
Lakshmanan v. State of Tamil Nadu and Varun Gumber v. Union Territory of
Chandigarh, have delineated the criteria for distinguishing games of skill from
chance, setting precedents that echo across subsequent legal deliberations.
Moreover, the industry faces challenges pertaining to oppressive taxation,
consumer protection, and responsible gaming, necessitating a cohesive national
regulatory structure. In conclusion, while fantasy gaming thrives as a
skill-based pursuit, its robust growth necessitates a comprehensive legal and
regulatory overhaul, encompassing uniform classification, stringent consumer
safeguards, ethical utilization of technology, and a judicious taxation
framework to foster fair play and mitigate potential risks.
KEYWORDS
Regulatory Ambiguity, Consumer
Protection, Taxation Framework, AI-Powered Analytics, National Legal
Standardization, Fantasy Gaming
INTRODUCTION
Online gaming that allows users to
create virtual teams of real life players in various sports is termed fantasy
gaming. They also compete with other users based on the actual performance of
those players. This trend has emerged as a popular industry in India. It is
quite lucrative, with millions of users. Increasing smartphone penetration and
availability of internet at lower prices are the main contributing factors in
the growth story of this industry.[1]
Fantasy gaming also comes across various legal challenges in India. The Public
Gambling Act, 1867 is an important legislation as far as gambling is concerned.
It governs gambling & betting in India. Although it prohibits public
gambling as well as keeping of common gaming houses. Yet it exempts games of
skill from its purview.[2]
The Supreme Court held fantasy gaming to be a game of skill. It involves the
exercise of superior knowledge, judgment, and attention of the user.[3]
Since gambling and betting are state subjects; under the Constitution of India,
different states enact their own laws on this matter.[4]
This creates a patchwork of legal regimes that vary in their applicability.
Assam, Odisha and Telangana have banned this altogether.[5]
While Nagaland, Sikkim and West Bengal have regulated it under specific conditions.[6]
The lack of a comprehensive legal framework is quite troublesome for the
industry. Issues related to legal compliance are a major cause of concern.
What is Online Fantasy Gaming?
Fantasy Gaming is a form of sports
betting where one bets on an individual player performance rather than on the
outcome of the game which makes it a game of skill. The winner is selected by a
pre-determined points system based on a self-composed fictious team of existing
athletes from various sports like Kabaddi, Cricket, Football, Handball, Volleyball
etc. The fantasy sports in India came around two decades back by launching of
“Super Selector Fantasy Game” by ESPN Sports in 2001 which completely changed
the form of sports betting in India by creating a fantasy betting system fall
half under game of skill and half part under game of luck/chance which stands
still as a grey matter in India.[7]
In the current scenario, many
unicorns like Dream11, Howzat, A23Rummy, My11circle, etc. have captured the
Indian fantasy gaming market. While Dream11 has captured the 90 percent of the
market share.[8] These
Fantasy gaming applications offer the Gen X with thrill and a free dopamine
rush by rewarding the users with some small rewards and at the same time
creating a hope of winning larger sum of money. According to a report by KPMG
and FIFS, the online fantasy sports industry in India grew by 31%. It is
further projected to grow upto Rs 25,240 crore by FY27.[9]
EVOLUTION OF FANTASY GAMING INDUSTRY IN INDIA
Fantasy
gaming is not a novel concept. Its roots can be traced back in the traditional
forms of sports fandom. Growth of technology has evolved fantasy gaming into a
sophisticated industry. The history traces back to 1950s.[10] The first fantasy baseball league was created in USA.[11] It was created by a group of journalists and academics.
Since then, it has expanded to cover various other sports attracting millions
of users.
In India,
the fantasy sports competitions started from the early 2000s.[12] It took almost a decade for this to gain popularity,
largely driven by the availability of affordable smartphones, internet
penetration, and the growth of different mobile application platforms. One of
the earliest and most influential fantasy gaming platforms in India was the
'Super Selector' game launched by ESPN-Star Sports in 2001. It allowed users to
create and manage virtual cricket teams. They could also compete with other
users based on the actual performance of the players.[13] Former Indian cricketer Ravi Shastri hosted the same. The
monthly winner used to get a chance to meet him. The game was a huge success.
It was able to create a buzz among the cricket fans.
Indian Fantasy Gaming emergence or
rise can be seen back to the time when IPL[14] was
introduced in India. The emergence of this new league ensured an active
engagement of public throughout the year in sports and while creating a state
wise team to build a sense of competition among people to get more engagement
in the fantasy gaming.[15]
The current scenario in India is that many sporting events such as Pro Kabaddi,
IPL, Big Bash League, Indian Super League and all the sporting events are
tracked and Pool Competition is created to allure the public at large.[16]
The fantasy gaming industry in India boomed and gained popularity in the covid
19 pandemic. Over the past five IPL seasons since 2019, fantasy gaming apps
have seen a compound annual growth of 18% of cash users every year.[17]
FACTORS CONTRIBUTING TO GROWTH OF ONLINE GAMING
INDUSTRY
i.
Covid 19 Pandemic- Due to covid 19 restrictions, rapid
technological improvements, and greater internet usage during covid times has
significantly contributed to the growth of fantasy gaming in India. Due to lack
of entertainment and restrictions on movement, people heavily relied on fantasy
gaming as a leisure activity.[18]
ii.
Growth in Technology- The growth of digital infrastructure
and extensive penetration of technology has resulted in an easily accessible
technology in the hands of Indian citizens which has further resulted in
engagement of Indian users in fantasy games.[19]
iii.
Advertisements and Promotions- Due to heavy promotions and
advertisements fantasy gaming can attract more players to their online
platforms. Promotions on Indian jersey and other online platforms has been able
to attract many participants by selling them dreams and hope to win bigger cash
prizes in future.[20]
iv.
Emergence of Sports League- Due to the emergence of many sports
league throughout the year has resulted in creating a bigger market for the
online gaming platforms in India.[21]
LEGAL AND
REGULATORY FRAMEWORK IN INDIA
The
regulatory framework of fantasy gaming in India is fragmented. There is no
central legislation for its governance.
Also there is authority that governs this industry at the national
level. The Supreme Court of India held that fantasy gaming is a game of skill.[22] It involves the exercise of superior knowledge, judgment,
and attention of the user. The laws throughout India vary in their scope,
interpretation, as well as enforcement. The following are some of the key
regulatory aspects of fantasy gaming in India:
I.
Legality of Fantasy Gaming in India
Fantasy Gaming applications are
usually unregulated third-party applications which access the data of the user
and collects various user documents for monitoring the outflow/inflow of money
while collecting the digital documents such as PAN, Aadhaar Card of the app
users.[23]
As per the Article 19(1) of the Indian Constitution & the colonial Gambling
Act, 1867; prohibits individuals and groups from engaging in “game of chances”
but unreservedly allows skillbased games but the real question is that “is it a
complete game of skill”? or does it still have some contingency or game of
chance/luck involved in it.
To dive deeper into this context,
lottery is another example of luck or chance determining the winner. As per
Section 30 of Indian Contract Act, 1872, agreements of wager are void and no
one can resort to legal proceedings for the same. Similarly, Section 12 of the
Gambling Act, 1867 states that a game of skill does not amount to gambling as
the player with greater skill has a better chance of winning and luck has
minimal role to play.
II.
Definition of Fantasy Gaming
There is no
consistent definition of fantasy gaming in India. Different courts have adopted
varied criterias. They classify the sport as game of skill/game of chance. In K.R.
Lakshmanan v. State of Tamil Nadu[24], the honorable Supreme Court came up with the test of
predominance of skill over chance to determine the legality of a game. This was
applied it to the game of horse racing. The honorable Supreme Court
stated that a “Game of Skill” is one in which a player’s superior knowledge,
training, attention, experience, and skill are what determines their success
most. A game of skill is one in which the element of skill predominates over
the element of chance. A game of chance is one in which the element of chance
predominates over the element of skill.
In Gurdeep
Singh Sachar v. Union of India & Ors.[25], the Bombay High Court followed the same test. The
honourable High Court upheld the legality of Dream11. It was observed that it
involved considerable skill, judgment and discretion. It was held that the
result was not dependent on the outcome of the match. But based on the
performance of individual players.
In the case
of Varun Gumber v. Union Territory of Chandigarh & Ors.[26], Punjab and Haryana High Court upheld the previous
descision. That is, Dream11 was a game of skill and not a game of chance. The
court ruled that the game was a legal activity and was protected under Article
19(1)(g) of the Indian Constitution.
However, in
Chandresh Sankhla v. State of Rajasthan[27], Rajasthan High Court took a different view. It was held
that Dream11 was a game of chance and not a game of skill. The element of skill
was negligible as it involved betting on uncertain events.
The Madras
High Court, in the case of D. Siluvai Venance v. State[28], also expressed doubts about the legality of fantasy
gaming. It observed that it could amount to gambling if it involved stakes or
money. Thus, there is a need for uniform classification of fantasy sports in
India. This can certainly provide legal clarity to the users.
In 2023, Rajasthan High Court held
that online gaming is not betting or gambling. The interim relief was granted
to Myteam11. The court held that such gaming services are the games of skill.
They are not games in nature of betting or gambling. The court also remarked
that the issue of show cause notice to Myteam11 by the GST authorities, seeking
to levy GST on the gaming services provided by it online, by treating the same
as ‘actionable claims’, is an abuse of the process of law.[29]
III.
Consumer Protection and Responsible Gaming
Another
important aspect of the regulatory framework is the protection of the interests
of the consumers. The promotion of responsible gaming practices is also very
important aspect. The industry is largely self regulated. FIFS[30] represents fantasy gaming operators in India. It issued a
charter of self regulation containing certain principles. It involves guidelines
relating to transparency, fairness, security, privacy, and ethics. The FIFS
also has a grievance redressal mechanism.[31] Lately, the self-regulation by the FIFS is not enforceable.
It does not have any legal recognition.[32]
IV.
Oppressive
Taxation on Online Gaming
Imposing high GST on Online Fantasy
Gaming is an unjustified & unreasonable concept. It would kill an industry
that employs many people. The 50th GST Council decided to levy 28 percent tax
on gross amount involved. For example, A contest is created for 10 people
contributing Rs. 100 each, making the amount Rs. 1000, out of which 28 percent
is deducted as GST along with 10 percent by service providing platform making
the prize pool available as Rs. 620, out of that 620 Rupees further winnings of
participants (V, W, X, Y) would be 220, 200, 145, 55 (Rupees) on which another
30 percent would be deducted as income tax making the amount available for the
participants at 70 percent of what they won. Thus, the 50th GST Council
decision to levy 28 percent tax is a way to create a two-edged sword which will
cut this industry into pieces, hence, leaving out no reward except the top
three scorers in a contest, the other participants except the first three are
guaranteed to lose.
The more astonishing part is that
nowhere in the world, tax is deducted on the entire price pool amount rather
tax is deducted on the service charge or the platform fee. There is a serious
weak spot of our taxation system due to its primary focus on revenue
maximisation and thinking less towards revenue optimization, our taxing regime
system has always focused on putting more burden on the shoulders of tax payers
and collecting hefty amounts of tax rather than collecting small tax amount
from all the industries and people in the country. If the decision taken by the
50th GST Council is implemented the online gaming industry will suffer huge
losses and in future can disrupt its potential growth which can further result
in loss of employment with no subsequent increase in the revenue.[33]
It is equally important for the
policymakers to consider the possible consequences of the oppressive rates of
taxation as increased tax would result in loss in an industry, thus, in future,
will account for loss in taxes rather the approach should be lesser the tax
more the growth and employment, which will subsequently increase the amount of
tax collected.
ROLE OF AI
IN FANTASY GAMING
Computer
systems or algorithms that can carry out certain tasks demanding human
intellect is said to be AI (artificial intelligence).[34] It's an interdisciplinary field with convergence of varied
fields of study. ML[35], deep learning, NLP[36], computer vision, speech recognition, robotics, expert
systems and artificial neural networks all are covered under the scope of AI.
It provides various tools and features that improve the user engagement,
analysis and satisfaction:
a.
AI-powered player analysis: One of the key aspects of fantasy
gaming is the analysis of player data. AI has revolutionized this process. It enables
the fantasy gaming platforms to process massive amounts of data. AI algorithms
can provide customized player profiles including personalised metrics. AI can
also make predictions about player performance. It can factor in certain variables
for the same. These predictions can help the users to optimize their chances of
winning.[37] For instance, Dream11 uses AI to provide with player
suggestions.[38] Similarly, FanDuel, uses AI to generate player projections.[39]
b.
AI powered game features: AI has enhanced the fantasy gaming
experience by catering the diverse needs of the users. AI can help the fantasy
gaming platforms to create engaging game formats. AI can also help the fantasy
gaming platforms to provide certain features, such as chatbot integration.[40] For example, MyTeam11 uses AI to provide users with
personalized recommendations.[41]
c.
AI powered user experience: AI has improved the user experience by adpting
to the preferences of the individual. AI can help the platforms in data
collection to further customize the user experience. AI can also help the
fantasy gaming platforms to improve quality assurance by adopting AI sentiment analysis techniques.[42] For instance, MPL uses AI to provide users with
personalized content.
MOOT QUESTION
Should the State, tax us on our
winnings due to chance or should it tax us on the winnings of our skill alone?
This questioned appeared in the
Karnataka High Court’s decision in Gameskraft Technologies Limited v. Directorate
General of Goods Service Tax Intelligence, in this case Gameskraft is an online
intermediary company, which runs platforms that enable its users to play online
fantasy games against users. Gameskraft received Rs. 21,000 crore GST notice
which was challenged by giving a central argument that the Gameskraft is only a
service provider and the prize pool held by Gameskraft is only in trust and all
of it is distributed after deducting the service providers fee for which they
are paying the tax. It is a settled law that the games of skill may not be
taxed while game of chances may be taxed, on this Justice Kumar in the Gameskraft
case held that online rummy and other games played on the platform provided by
the company were not taxable as “betting and gambling” under the GST Act and if
the intimation notice of Rs. 21,000 crore was sent, then this means that
lottery, betting, and gambling can be taxed under the CGST. The Karnataka High
Court placed more reliance on Supreme Court judgements and held that Entry 6 Schedule
III of CGST has interpreted to mean games of chances and not game of skill so
it cannot be taxed for the same. The matter is currently been challenged by the
respondents in the Supreme Court of India. The Supreme Court decision on game
of skill and game of chance will shape the future of taxation in India.
CRITISICM
The prevailing trend of fantasy
gaming has created more Reward dependence of the youth. In the current scenario,
the industries are selling dreams by alluring the public at large to
participate in contests to win bigger rewards. Due to unclear legal status
especially those involving real money transactions, some states consider online
fantasy gaming to fall under game of skill while some states ban it, making it
fall under game of luck. Online fantasy gaming are addictive in nature like
gambling, once the user wins a small amount of money the user gets involved in
the vicious cycle created by online fantasy application where the user plays
more to win more but ends up loosing all, thus, making the user vulnerable to
financial losses. The most concerning issue is of underage participations and
easy accessibility of these online gaming application which can expose the underage
population to a greater financial risk and can further addict the child to
other illegal activities such as gambling in their foundational age.
CONCLUSION
AND RECOMMENDATIONS
Fantasy
gaming is a booming and promising industry in India. It offers various
opportunities for the sports industry and the economy. However, fantasy gaming has
its own issues such as the regulatory uncertainty, responsible gaming issues,
compliance issues, and social implications. The following recommendations are
suggested to improve upon these issues:
a)
A uniform legal framework at national
level
b)
A clear classification of
fantasy gaming or fantasy sports
c)
A robust taxation and
compliance regime
d)
An effective consumer
protection mechanism
e)
Ethical use of data,
artificial intelligence and real money in fantasy gaming
In
conclusion, fantasy gaming has the potential to revolutionize the sports fandom
to create growth for the fantasy gaming industry. As the title suggests, the present
scenario is a freewheeling gaming industry which needs to be checked and a
proper legislation should come into play to prevent financial frauds, underage
participations, oppressive taxing, and a situation of ambiguity among
participants, regulators, and operators. The fantasy gaming is not regarded as
gambling in India but rather a skill based game which needs to be regulated and
monitored in huge demographic country like India to prevent financial frauds
and to ensure fair play.
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Article Information
FREEWHEELING FANTASY GAMING IN INDIA
Authors: ADITYA TALWAR, SAHIBPREET SINGH
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/01/08
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
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