Photo: The New York Times
December 12, 2015
Peter Solari Follow @4PeteSakeNY
On Friday, a New York State appeals court judge ruled that daily fantasy sports giants, Draftkings and FanDuel, can continue operating in the state until their case is further considered. The decision came mere hours after another New York judge granted state Attorney General Eric Schneiderman's injunction, which prevented the companies from doing business in the Empire State.
While FanDuel and DraftKings are in the clear for the immediate future, the legal battle has just begun. The ruling allows for the two companies to continue operating until January 4th, at which time, a panel of judges will decide if the injunction can stay in place. Justice Manuel J. Mendez of the New York Supreme Court, who granted the injunction, believes the attorney general will ultimately win out. According to the New York Times, Mendez wrote, "The balancing of the equities are in favor of the N.Y.A.G. and the State of New York due to their interest in protecting the public, particularly those with gambling addictions."
Naturally, the state, including the justice system, in running for the moral high ground. They've been doing so since this whole saga started. You see, they're just concerned about the general welfare of the public, and people with gambling addictions. Not concerned enough to shut down their lottery, horse tracks, and casinos, but they're concerned none-the-less.
As this site pointed out last month, nobody in Albany gives a crap about your gambling addiction. What's happening in New York is an old fashioned shakedown, perpetrated by the attorney general's office. Schneiderman has no interest in stopping, or even curbing, gambling in New York nor does he want to help anyone get over their addictions. His only motivation is to make sure the state gets a piece of the pie. Nobody is allowed to run a successful business in New York without paying for protection. It's Tony Soprano's way or the highway up there.
That's why New York is one of the most unfriendly states to do business in the country. As Forbes puts it, New York's taxes, union workforce, and red tape are among the highest in the country."
While it probably comes as no surprise, to anybody, to see a government trying to extend it's long arms way too far, the state's case doesn't seem as air-tight as many believe it to be.
A key point in Schneiderman's argument that FanDuel and DraftKings are running illegal gambling operations, hinges on what the actual definition of 'gambling' is.
The attorney general's office believes daily fantasy sports are games of 'chance,' like roulette or craps, rather than a 'skill' game. As such, he says DraftKings and FanDuel are running gambling operations in violation of state law. Katherine McGee, an attorney for the state, tried to further explain, telling The New York Times, "I place my bet, pick up my team, and watch. Chance pervades daily fantasy sports." McGee added, "If someone set up a website that allowed people to make millions of bets on the outcome of spelling bees, that would be gambling."
There's certainly some validity to what McGee had to say, but is she telling you the whole story? Not really.
This argument sounds rational enough, but it could logically be made about pretty much anything we do in life, and very few would call it gambling.
Most Americans get in cars, on trains, or busses every morning to go to work. They're all taking a 'chance' that they won't get to work alive, aren't they? After all, in 2013, over 30,000 people were kill in automobile accidents in the United States. Yet, many people still go out and take that risk every single day. Why do they do it? For the same reason most play fantasy football. To get paid! Nobody in their right mind would consider that gambling, even though it falls under the state's definition.
John Kiernan, arguing for FanDuel, says that daily fantasy sports are actually skill games. "What is skill? It's when, through effort and aptitude, you increase your probabilities of success," he points out.
The skill aspect of fantasy sports is one that McGee (as well as Schneiderman) conveniently gloss over. They want you to believe that you're dealt a hand, like a game of poker, and your odds of success, rest on how good that hand is, but that couldn't be further from the truth in fantasy sports. In fantasy sports, you basically get to choose your hand.
Fantasy sports isn't like sitting down at a poker table in a casino, and playing the hand you're dealt. Participants in daily fantasy football, for example, are expected to fill out a lineup from an unlimited supply of players. Points are earned based on how those players perform on a particular day, and whoever has the most points at the end, wins.
For most players, who they choose to play, is based on various factors, including who's playing who, who's playing at home and who's going on the road, weather, historical performances, is the game being played indoors or outdoors, what time is the game being played, and a nearly limitless list of others. This is where skill comes into play. Fantasy sports are all about match ups, and the ability to determine which of them work in your favor, is a skill. If FanDuel and DraftKings were just randomly assigning players, and whoever wins, wins, then the state could make the case that it falls under the definition of 'gambling.' However, based on their own standards, it's a tough sell.
Now, of course there's always a 'chance' that your running back will get hurt or your quarterback will throw three interceptions, but that's because football in and of itself, is a game of chance, like so many other things in life. That doesn't make fantasy sports any less of a skill game, nor does it bring them any closer to falling under Schneiderman's own definition of 'gambling.'
At the end of the day, don't be surprised if the State of New York comes out on top of this. They're no strangers to taking people's freedoms away. However, if and when that day comes, don't be fooled into believing they had the citizens' of New York's best interests at heart or that they're concerned about gambling addictions.
Just remember that Attorney General Schneiderman and the state of New York presented a fairly weak case, to a corrupt judicial system, in an effort to control their citizens and, of course, line their pockets.
