Dew-Becker v. Wu

• Decision Date: 16 April 2020
• Docket Number: Docket No. 124472
• Citation: 178 N.E.3d 1034,449 Ill.Dec. 183,2020 IL 124472
• Parties: Colin DEW-BECKER, Appellant, v. Andrew WU, Appellee.
• Court: Illinois Supreme Court

2020 IL 124472

178 N.E.3d 1034

449 Ill.Dec. 183

Colin DEW-BECKER, Appellant,

v.Andrew WU, Appellee.

Docket No. 124472

Supreme Court of Illinois.

Opinion filed April 16, 2020

Rehearing denied September 28, 2020

Berton N. Ring, of Berton N. Ring, P.C., of Chicago, for appellant.

William M. Gantz, Leah Bruno, and Eitan Kagedan, of Dentons US LLP, of Chicago, for appellee.

CHIEF JUSTICE ANNE M. BURKE delivered the judgment of the court, with opinion.

¶ 1 In this case, we must determine whether the loser of a head-to-head contest on a daily fantasy sports website may recover money lost to the winner of the contest under section 28-8(a) of the Criminal Code of 2012 ( 720 ILCS 5/28-8(a) (West 2014)). For the following reasons, we hold that recovery is unavailable.

¶ 2 BACKGROUND

¶ 3 On April 4, 2016, the plaintiff, Colin Dew-Becker, filed a complaint in the circuit court of Cook County against the defendant, Andrew Wu. The complaint alleged that plaintiff and defendant had engaged in a daily fantasy sports (DFS) contest on a website known as FanDuel and that, as a result of this contest, plaintiff had lost $100 to defendant. The complaint further alleged that the DFS contest constituted illegal gambling under Illinois law and, therefore, plaintiff was entitled to recover the lost money under section 28-8(a) of the Criminal Code of 2012 (id. § 28-8(a) ), a statutory provision which allows the loser of certain illegal bets to seek recovery from the winner.

¶ 4 At a bench trial, plaintiff testified that in a DFS contest each participant creates a virtual roster of players by selecting from among current athletes in a real professional or amateur sports league. Each participant then earns fantasy points based on how well the selected athletes perform individually in their actual professional or college sports games on a given day. After all such games are completed, a total score is calculated for each of the virtual rosters, and the winner of the contest is the participant whose roster has the most points. A head-to-head DFS contest is one that involves only two participants who compete against each other directly.

¶ 5 Plaintiff testified that on April 1, 2016, he and defendant each paid a $109 entrance fee to participate in a head-to-head DFS contest on the FanDuel website. The contest involved National Basketball Association (NBA) games, and both plaintiff and defendant selected a fantasy roster of nine NBA players. Plaintiff stated that he understood when entering the contest that the winner would keep $200, the loser would get nothing, and FanDuel would keep $18. Plaintiff testified that defendant won the DFS contest by a score of 221.1 to 96.3 and that defendant received the $200 due him.

¶ 6 Defendant, appearing pro se , testified that he did not view the DFS contest as "an illegal gambling situation." He stated that he chose to join the fantasy contest voluntarily and that he paid the entrance fee knowing that, if he did not win, $100 would go to plaintiff.

¶ 7 At the close of trial, the circuit court rendered judgment in favor of defendant. The court concluded defendant was entitled to judgment as a matter of law because section 28-8(a) "does not allow recovery when the gambling is not connected—conducted between one person and another person, in this case, because of FanDuel."

¶ 8 On appeal, the appellate court affirmed. 2018 IL App (1st) 171675, 428 Ill.Dec. 622, 123 N.E.3d 86. The appellate court agreed with the circuit court's reading of section 28-8(a), holding that recovery could only be had under the statute when there was a "direct connection between the two persons involved in the wager." Id. ¶ 19.

¶ 9 We granted plaintiff's petition for leave to appeal. Ill. S. Ct. R. 315 (eff. July 1, 2018).

¶ 10 ANALYSIS

¶ 11 At issue in this case is whether plaintiff can recover money lost in a head-to-head DFS contest under section 28-8(a) of the Criminal Code ( 720 ILCS 5/28-8(a) (West 2014)). This provision states, in relevant part:

"(a) Any person who by gambling shall lose to any other person, any sum of money or thing of value, amounting to the sum of $50 or more and shall pay or deliver the same or any part thereof, may sue for and recover the money or other thing of value, so lost and paid or delivered, in a civil action against the winner thereof, with costs, in the circuit court." Id.

¶ 12 Determining the meaning of section 28-8(a) presents an issue of statutory interpretation, which we consider de novo . People v. Manning , 2018 IL 122081, ¶ 16, 425 Ill.Dec. 490, 115 N.E.3d 45. The fundamental rule of statutory interpretation is to ascertain and give effect to the legislature's intent, and the best indicator of that intent is the statutory language, given its plain and ordinary meaning. People v. Alexander , 204 Ill. 2d 472, 485, 274 Ill.Dec. 414, 791 N.E.2d 506 (2003). When the statutory language is clear and unambiguous, it is given effect as written without resort to other aids of statutory interpretation. Petersen v. Wallach , 198 Ill. 2d 439, 445, 261 Ill.Dec. 728, 764 N.E.2d 19 (2002).

¶ 13 The appellate court assumed, arguendo , that a head-to-head DFS contest is "gambling" within the meaning of section 28-8(a) ( 2018 IL App (1st) 171675, ¶ 17, 428 Ill.Dec. 622, 123 N.E.3d 86 ) but then went on to conclude that recovery for a loss in such a contest was unavailable under the statute. The court noted that section 28-8(a) references " ‘[a]ny person’ " who loses by gambling " ‘to any other person.’ " Id. ¶ 19 (quoting 720 ILCS 5/28-8(a) (West 2014)). The court reasoned that this language "requires a direct connection between the two persons involved in the wager" for recovery to be allowed. Id. In other words, according to the appellate court, section 28-8(a) does not permit recovery when a third-party intermediary has facilitated or aided in the illegal gambling transaction. We disagree.

¶ 14 Courts are not free to read into a statute exceptions, limitations, or conditions the legislature did not express. Illinois State Treasurer v. Illinois Workers' Compensation Comm'n , 2015 IL 117418, ¶ 21, 391 Ill.Dec. 18, 30 N.E.3d 288. The only "direct" connection required under section 28-8(a) is that one person lose at gambling to another. Nothing in the statute states that a third party's help in conducting the gambling eliminates the plaintiff's right to recovery. See Zellers v. White , 208 Ill. 518, 70 N.E. 669 (1904) (interpreting a predecessor statute of section 28-8(a) ). Indeed, reading in such a limitation would effectively eliminate the utility of section 28-8(a). The purpose of section 28-8(a) "is not simply to undo illegal gambling transactions but ‘to deter illegal gambling by using its recovery provisions as a powerful enforcement mechanism.’ " United States v. Resnick , 594 F.3d 562, 571 (7th Cir. 2010) (quoting Vinson v. Casino Queen, Inc. , 123 F.3d 655, 657 (7th Cir.1997) ). If a gambling winner's liability could be avoided by simply having an agent assist with the gambling transaction in some way, the enforcement mechanism of the statute would essentially be negated.

¶ 15 The appellate court also concluded that section 28-8(a) cannot be read as applying to DFS contests hosted by websites such as FanDuel because, as a practical matter, the statute cannot work when a DFS contest takes place on the Internet. The court noted that FanDuel allows fantasy sports participants to compete in DFS contests using only a screen name rather than their real names and, thus, the loser of a DFS contest will often not know the real identity of the winner. The appellate court concluded that a loser cannot sue the winner "when the winner's identity is known only through a screen name." 2018 IL App (1st) 171675, ¶ 21, 428 Ill.Dec. 622, 123 N.E.3d 86. From this, the court determined that DFS contests held on websites such as FanDuel are not covered by section 28-8(a). Id. Again, we disagree.

¶ 16 First, it is not always true that DFS participants do not know one another's identities. In this case, for example, plaintiff was clearly aware of defendant's true identity. Plaintiff invited defendant to participate in the DFS contest, and plaintiff's complaint identified defendant by name, even though defendant had used a screen name during the DFS contest itself. Id. ¶ 20. Further, even if a defendant's real name is unknown, Illinois Supreme Court rules permit limited pretrial discovery to uncover that name. See Ill. S. Ct. R. 224 (eff. May 30, 2008); Hadley v. Doe , 2015 IL 118000, 393 Ill.Dec. 348, 34 N.E.3d 549. To be sure, the use of screen names may, in some instances, make recovery more difficult for the loser of a DFS contest, but it does not make recovery impossible. Moreover, nothing in the language of section 28-8(a) excludes Internet contests from the statute's reach. We therefore cannot conclude that section 28-8(a) is per se inapplicable to DFS contests conducted on websites such as FanDuel.

¶ 17 The appellate court also rejected the application of section 28-8(a) to DFS contests conducted on websites such as FanDuel because, according to the court, allowing such application would open "the floodgates of litigation" to the "thousands of Illinois residents" who have participated in and lost DFS contests. 2018 IL App (1st) 171675, ¶ 22, 428 Ill.Dec. 622, 123 N.E.3d 86. The appellate court held that it would be "absurd" to conclude the legislature intended to "inundate the court system with such a high volume of claims" ( id. ) and, therefore, section 28-8(a) cannot apply to DFS contests. See, e.g. , Carmichael v. Laborers' & Retirement Board Employees' Annuity & Benefit Fund , 2018 IL 122793, ¶ 35, 429 Ill.Dec. 677, 125 N.E.3d 383 (when interpreting statutes, we presume that the legislature did not intend to create absurd results).

¶ 18 The appellate court's conclusion that applying section 28-8(a) to DFS contests would open the floodgates of litigation is speculative. See, e.g. , Sonnenberg v. Amaya Group Holdings (IOM) Lt...