Forget the football field.
This week’s best matchup might be the one between the
fantasy football giants and the prosecutors trying to shut them down.
Lawyers for DraftKings and FanDuel went head-to-head Wednesday with
prosecutors from the state Attorney General’s office over whether the popular
online sports leagues are actually gambling dens in disguise.
The daily fantasy companies shared an hour of oral arguments
among litigation heavyweights David Boies, John Kiernan and Randy
Mastro, while Kathleen McGee — chief of the attorney general’s Internet bureau
— argued on behalf of the state.
Court art below from today's hearing. Click on a picture to view larger.
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| Kiernan argued that daily fantasy requires skill “by any reasonable definition” because of the evidence showing result differentiation, the replication of success or failure and participants’ improvement over time. |
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| “The dispersion of results that is, the actual people who win time after time — is wholly inconsistent with it being a game of chance and \with it being anything other than a game of extreme skill,” Boies said |
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| Mastro referred to a precedent from a New York case about a horse owner in the Belmont Stakes, in which the court deemed the owner's entry fee and chance at a prize not to be gambling. The owner hires a trainer and a jockey who control the subsequent actions. |
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| McGee said in arguing the state's case that the only skill demonstrated by daily-fantasy players is “skill at gambling.” New York law deems a contest to be gambling if it depends on chance to a material degree, even though some skill is necessary. |
The burden of proof rests with the attorney general’s office
which contends that, while season-long fantasy sports are legal under state
law, daily fantasy is materially a game of chance and should be deemed illegal
gambling.
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