Apple and Google have different policies when it comes to gray market 'skill-based' games

Despite Google’s Policy Change, Real Money Skill Games Remain Prohibited From The Play Store

Bingo! There’s finally an easy way for online gamblers to differentiate between so-called skill-based games and other online gambling offerings, like esports and online casino games. All they have to do is look on Google Play. If you can find it there, it’s not a skill game, because Google hasn’t included them in its new policies which allow real-money gambling apps in the store.

There’s still some debate about whether these skill-based games are gambling at all. They meet most people’s everyday definition, since money changes hands. However, most legal definitions of gambling use the words “games of chance,” putting these skill games in a gray area. That said, some jurisdictions, like New Jersey, have formally authorized certain skill-based games.

Searching Google Play yesterday, Online Poker Report couldn’t find Bingo Boost by Ryu Games. The company’s Development Lead Nick Contino had said wouldn’t be there. He wrote about that exclusion in a piece published on May 23 by GamesBeat.

Contino said Google was hurting consumers by excluding skill-based games like Bingo Boost, which he feels should have been allowed in starting March 1. That date is when Google Play started permitting online gambling and online sportsbooks to include their apps.

OPR did find many other bingo apps on Google Play. However, they all specified that they weren’t real-money online gambling apps. Conversely, the Bingo Boost and other real money skill games are available on Apple’s iOS App Store.

What are skill-based games?

New Jersey defines skill-based games as:

“Skill-based games mean any [New Jersey Division of Gaming Enforcement (DGE)]-approved casino or online game where the theoretical return to player (RTP) cannot be determined by a precise mathematical model based on chance, but is instead determined by player’s physical dexterity and/or mental ability. Such games are not required to achieve a minimum theoretical RTP. Skill-based games are distinct from slot machine games that are expected to achieve a theoretical RTP of 83%.”

In most jurisdictions, however, skill games occupy a gray market niche. That means they don’t have a formal definition. Rather, they are simply whatever a company is willing to defend in court as being “not a game of chance,” and therefore “not gambling.”

In the past, poker and daily fantasy sports have both been included in that debate, and occasionally the subject legal battles in the US and elsewhere. These days, most states have come down one way or the other on those products, but new forms of skill games pop up faster than courts and legislatures can react.

Is excluding skill-based games on Google Play harmful to consumers?

Contino’s main contention was that Android owners interested in playing skill-based games will simply do an end-run around Google’s rule. They can “sideload” these apps, like 21 Blitz from Skillz, by downloading them directly from the developer. This is relatively easy to do on Android.

The problem is that this opens users up to potentially downloading black market apps. These come from offshore companies and ignore US law entirely, making them more dangerous than domestic gray market ones.

Contino explained:

“If you download a real-money gaming app from the App Store, you don’t have to worry that your money is going to the Cayman Islands and never coming back. By Google not including real-money gaming apps in the Play Store, there’s the potential threat to users who sideload sketchy apps to be exposed to trojans, malware, spyware, click fraud and phishing code hidden within unofficial apps.”

That doesn’t mean the “legal” apps are totally safe either, of course. Players are currently suing Skillz for $6 million over alleged cheating in 21 Blitz, highlighting just one of the risks to consumers when it comes to gray market products.

The Skillz lawsuit

Alyssa Ball of Nevada and John Prignano of Texas alleged Skillz wronged them by locking them out of their accounts. This happened shorlty after they reported cheating by others. For its part, the company says they were the ones cheating.

Court records read:

“They sued Skillz under several fraud theories, alleging that Skillz violated its anti-cheating policy by not reimbursing money lost against known cheaters and not paying out certain prizes that were promised.”

When Jane Roe of Colorado heard about the law suit, she joined in. She alleges that she lost her life savings on a game that “concealed the possibility that users would lose money.”

On Nov. 11, 2020, the US District Court of Nevada granted a request by Skillz to send the case to arbitration. As of Feb. 25, 2021, the case of alleged fraud involved 54 documents filed by both parties.

The US will have to come to terms with skill-based games soon

As Contino pointed out, skill-based games are like esports in one important way. Wagering on the latter is also growing in popularity, and it revolves around tournaments. He cited the Call of Duty: Mobile World Championship 2021, presented by Sony.

Coincidentally, the world learned last week about Sony’s patent application for esports betting technology. The very same day, Sony agreed to a deal with skill-based game platform provider Game Taco to let it acquire skill-based game developer and provider WorldWinner. That app creator had been under GSN Games, a Game Show Network division, which Sony still owns.

However, the official rules for Call of Duty: Mobile World Championship 2021 state that gambling on the tournament is expressly forbidden. That’s despite the fact that the tournament itself, which runs from June 3 intto September, will offer $2 million in prizes for the participants.

The bigger skill games, esports betting, and similar products get, the harder they’ll be to ignore. That goes for legislators and Google Play’s policy-setters alike. Gray market products tend not to remain ambiguous for long. If they don’t disappear of their own accord due to lack of interest, their status will ultimately get clarified one way or the other.

- Heather Fletcher is the lead writer with OnlinePokerReport. She's a career journalist, with bylines in The New York Times, Adweek and other publications. Reach her at [email protected]
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