You expect to lose money gambling, but you don’t really expect to lose it abstaining from gambling. But if you’re a FanDuel user who hasn’t made any bets or deposits for two years, the site will now deduct $3 per month until you put some money on the table. You have to play to win, it seems, but not to lose.

In an email sent to such lapsed (or perhaps recovering) users, including Engadget’s Richard Lawler, FanDuel wrote:

It appears your account has been inactive for over two years, which means you have neither deposited nor entered a contest during that time. We’ve recently updated our Terms of Use to impose a monthly inactivity fee of $2.99 for any accounts that have no play or deposit activity for a period of 24+ months. Per our terms, we are providing you with 30 days notice prior to imposing this fee.

How many inactive accounts do you think you have at random sites you signed up for and never ended up using? Dozens, maybe even a hundred for some? Has any one of these sites ever attempted to charge you for not using their service? Not a monthly fee you have to pay whether you use it or not — literally charging you money because you didn’t use the site. Can’t say I’ve ever heard of it.

In a statement, FanDuel explained that “inactive account fees are a common practice amongst other companies that maintain online account balances in the U.S and Europe. In some of those cases, entire account balances are forfeited after a defined period of inactivity.”

I checked a few gambling and fantasy sites and did find one (WSOP.com) that imposes an inactivity fee, though many don’t. So it’s not unprecedented. And indeed depending on the state your account balance may be forfeit after as little as a year, or as many as five or six.

The rules will naturally apply to a lot of people who, for instance, tried the site out but not for a long time, and perhaps even sent FanDuel notifications to spam. Can you blame them? It’s been safe with every other site, and when they signed up there was no inactivity fee. It was added in a recent terms of service update.

But how many of these people will have heard of and agreed to those updated terms. Can people who didn’t agree to the terms be held to them? Exactly how binding EULAs and such truly are is an open legal question. But FanDuel’s approach here seems beyond the pale.

The terms do mention that the company may “modify or replace the Terms of Use at any time.” But they also state that “Use of the Services by you after any modification to the Terms constitutes your acceptance of the Terms of Use as modified.” So if the users haven’t used the service post modification, they haven’t accepted the terms. How can the new fee be applied? I’ve asked FanDuel about this.

To be clear, the money comes out of your FanDuel account balance, and once that bottoms out it’s done — they’re not going to reach out and ding your actual bank account. The fees will continue until the account is empty or the inactivity reaches the state-determined limit defining abandonment, at which point the remaining funds are remitted to the proper authorities as “unclaimed property.” The idea, I suppose, is to let as little go unclaimed as possible.

Naturally anyone can delete your account, withdraw your balance or play a free game on the site to avoid the fee. And they’ve got a month to do it — assuming they even see the email FanDuel sent. And in its statement the company also said that “if any user asks to reactivate their account prior to December 31, 2019 we will reimburse all fees charged and the user may withdraw that money from their account.”

Of course there is a certain amount of personal responsibility a user must bear for leaving their money in what amounts to a privately operated lock box. But they did so with the understanding that the operator wouldn’t change the policies and then sneak a few bills out.

I’ll update this post if I hear back from FanDuel as to how the terms can apply to people who haven’t agreed to them, implicitly or explicitly. In the meantime, if you have an account there, you should check the balance — you’ll have to use it, move it or lose it.