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  • Cameron

    RG Co-Founder

    • 2014 FanDuel NFL Survivor Champion

    • 2016 RG Season Long Champion: NFL

    Update: This thread was written before the NY Attorney general sent cease and desist in NY letters to Fanduel and DraftKings.

    ———————————————————————

    Subsequent Updates

    Statement from DraftKings

    Statement from FanDuel

    ———————————————————————

    Following post made before NY news broke

    Hey Grinders,

    The battle to keep DFS fully legal is still going on in some states, and obviously New York is an important one. Attorney General Eric Schneiderman is considering preventing New Yorkers from playing daily fantasy sports. There are over 500,000 daily fantasy players in the state of New York and AG Schneiderman would like to put in place restrictive measures that prevent your ability to play. It’s time for our community to come together and stand up against these unreasonable efforts.

    If you live in New York, you can help now. Make sure AG Eric Schneiderman hears from you. Tell him you support daily fantasy sports for all in New York state. Daily fantasy sports is fun, entertaining and a game of skill. NY has bigger challenges than fantasy football.

    Please contact the Attorney General Eric Schneiderman via phone, email, etc. at the details below, and visit this URL to petition

    Sign the Online Petition to New York Attorney General

    Other NY Contacts:

    GOV. ANDREW CUOMO
    District: NY
    Phone:(518) 474-8390
    Fax:(518) 474-1513

    ERIC SCHNEIDERMAN
    Email:Eric.Schneiderman@ag.ny.gov

    Twitter Handles

    NY A.G. – at AGSchneiderman
    NY Governor – at NYGovCuomo

  • ron69

    Earlier in this thread I voiced my opinion that there should be a limit on how many entries a person can make.That was foolish and stupid on my part.If there’s no limit on how many lottery tickets you can buy,how many horse racing tickets you can wager on or how many bets you can make on a sporting event at a casino,why should there be a limit on entries in a DFS contest ?

    I take back my earlier statement.

    I

  • pootnami

    I have a feeling that this could be our last hoorah. Fanduel quietly set new deposit limits on us and i think they wanted one last Sunday of football. Am i just being paranoid, or could this be it while they fight it out in the courts?

  • tommykarate

    and the commercials don’t stop

  • raiders7532

    It seems it’s New Yorkers last day untill things get resolved.

  • woody126

    Are tournament’s that run therough monday ok?

  • tommykarate

    @raiders7532 said...

    It seems it’s New Yorkers last day untill things get resolved.

    do you have a link to something on this?

  • DavidK44

    I doubt this is the appopriate forum for a nuanced debate of the appropriate standard to apply when tasked with determining whether an activity is gambling or not for purposes of state law, but IIRC, and a quick check of the federal district court case in the Eastern District of NY where a guy was charged with running a poker game in violation of IGBA (the federal laws), the Court held that even though New York State applies a material element test, the way the IGBA was worded and structured supported the belief that the proper interpretation of the federal statute was the predominant factor test. The case even notes that NY has a different test (the material element test) but that did not matter if you wanted to charge someone of a violation of the federal laws (IGBA).

    So unless they can convince a court that UIGEA is structured in such a way that neccessarily leads to applying the predominant factor test, I’m not so sure that is the proper standard, beause the AG is charging them with state law violations so the state law standard should apply.

    The case I’m referring to is United States v. Dicristina, 886 F.Supp.2d 164 (E.D.N.Y.2012). But I could be wrong.

  • maurile

    As I think about this, I am becoming more convinced that the AG will not be able to maintain that DFS is illegal gambling if season-long fantasy isn’t. Does whether something is gambling really depend on how long you do it?

    I mean, what, exactly, is the cut-off point? FanDuel’s Survivor contest currently lasts nine weeks. Does that make it non-gambling? What if it were to last ten weeks? Or eight?

    Can we imagine a court making those kinds of distinctions based on the statutory language and controlling case law? I think it’s hard to imagine.

    Whether DFS is illegal gambling — the way ordinary sports betting is — is going to be determined by whether betting on individual player performances is different from betting on the outcomes of games. Maybe they’re not all that different; but it seems that the Attorney General is currently taking the position that they are different, or else how could ordinary fantasy football be legal? Once that is stipulated, to ask a court to say “it’s legal as long as you play at least X weeks, but anything less than that is illegal” seems like quite a stretch. There’s nothing in any current statute or precedent to suggest that illegal gambling in New York becomes legal as long as you take multiple weeks to do it.

    I’m not saying that wouldn’t be an okay rule. The UIGEA contains something kind of similar, saying that fantasy sports are within a safe harbor as long as they are played over multiple sporting events instead of just a single event. (This is why there’s no DFS for just the Super Bowl, and it’s why many people think DFS versions of golf and NASCAR are on shaky ground.) It would be easy — and possibly even sensible — to say that fantasy sports must span not only multiple events, but also multiple weeks. That’s something a legislature might decide to do.

    But I don’t think that’s something a court is going to do on its own without any impetus from the legislature. If the court accepts the AG’s position that season-long fantasy is legal, I think it will be very difficult for it to rule that daily fantasy is not. Distinguishing between the two involves a line-drawing exercise that I don’t think a court will be inclined to take upon itself. (“This court holds that luck predominates over skill during the first four weeks of a given contest, after which skill becomes the more important factor; so any contest that lasts at least five weeks is lawful. Well, that’s for NFL anyway. For NBA and MLB, the threshold is reached after one full week. For NHL, it’s two weeks. Anyway, the Survivor series is cool. The weekly Sunday Millionaire contest is not. And the Championship series, with tickets gained over multiple weeks to an eventual final, but no requirement that people must play at least five weeks in order to win, is kind of iffy. It is so ordered.”)

  • pootnami

    @DavidK44 said...

    I doubt this is the appopriate forum for a nuanced debate of the appropriate standard to apply when tasked with determining whether an activity is gambling or not for purposes of state law, but IIRC, and a quick check of the federal district court case in the Eastern District of NY where a guy was charged with running a poker game in violation of IGBA (the federal laws), the Court held that even though New York State applies a material element test, the way the IGBA was worded and structured supported the belief that the proper interpretation of the federal statute was the predominant factor test. The case even notes that NY has a different test (the material element test) but that did not matter if you wanted to charge someone of a violation of the federal laws (IGBA).

    So unless they can convince a court that UIGEA is structured in such a way that neccessarily leads to applying the predominant factor test, I’m not so sure that is the proper standard, beause the AG is charging them with state law violations so the state law standard should apply.

    The case I’m referring to is United States v. Dicristina, 886 F.Supp.2d 164 (E.D.N.Y.2012). But I could be wrong.

    So how do you see this playing out in ny?

  • DavidK44

    @maurile said...

    As I think about this, I am becoming more convinced that the AG will not be able to maintain that DFS is illegal gambling if season-long fantasy isn’t. Does whether something is gambling really depend on how long you do it?

    I 100% agree with your post. From a PR standpoint, or from a “common sense” standpoint, the sites want to argue tht DFS isn’t gambling. That’s how they want to market themselves and it’s no doubt the position they most want to focus on with their statements to the media.

    But in regards to the AG’s letter and the inevitable litigation that will arise from it, the argument that probably will get the most attention and support from the Courts is over the AG’s distinction between season-long and daily. Not only does a line need to be drawn in regards to timeline, a Court would also have to draw a line in regards to when does the focus of the league shift from friendly social banter amongst buddies and competitive gambling on player’s performances. If I’m in a season long league for very little money, but no social interaction either, is that fine? What about with all of my buddies, but it’s for a lot of money and insanely competitive? What about a league of 5 friends and 5 strangers, that lasts a month? What about a two-day league for very little money amongst all friends?

    Either betting on players performances via the choosing of players within certain restrictions and guidelines designed to test one’s ability to predict said performances is an activity where chance is a material element, or it’s not (or if the test is predominant factor, then either it passes or it doesn’t). You simply can’t tell me that the material element of chance goes away in these actvities simply because the league takes a while, or because it’s a social league amongst friends.

    That said, from what I’ve read, NY is a material element state. So all fantasy sports would be held to be gambling.

  • tommykarate

    i was just able to enter contests for tomorrow (NY resident).
    very curious and anxious to see what transpires tomorrow. The 5 days is up.

    No coincidence that i have been on a 5 day losing streak – never been more lost/indecisive in the year ive been doing this. This has completely thrown me off my game….

  • maurile

    @DavidK44 said...

    That said, from what I’ve read, NY is a material element state. So all fantasy sports would be held to be gambling.

    I don’t think that’s clear cut. See the authorities cited in paragraph 66 of the DraftKings petition:

    http://online.wsj.com/public/resources/documents/2015_1113_DraftKings.pdf

    Or see the commentary here:

    http://www.jdsupra.com/legalnews/chance-v-skill-in-new-yorks-law-of-gam-28448/

    Both of those sources are leaving out or minimizing the fact that some cases construing NY law have discussed “material degree” rather than “dominating factor.” But I don’t think any of them count as binding precedent. In United States v. Dicristina, for example, which you cited above, the court noted that the defendant had waived the argument that poker wasn’t gambling under New York law. I’d count that case as being on the “material degree” side of things, but I’d argue that it really counts as dicta rather than binding precedent because (1) that issue, having been waived, wasn’t squarely before the court on its merits, and (2) that was in federal court, and a federal court’s interpretation of state law is not binding on state courts.

  • DavidK44

    I see FD and DK being granted the injunction so that matter can be properly litigated (because I think a Court will want to issue a conclusion one way or the other as to whether DFS is a game of chance under NY law), but then something happening in the interim, either the sides settling (DK and FD agree to fund a regulatory board or something could be one way, or they agree to leave the market for 6 months while the two companies and the state develop regulations) or with there being intervening actions such as state legislation, or federal action, beore the issue is fully resolved.

    But honestly, I have no idea. That’s nothing more than an educated guess and if someone can present a compelling argument that this will play out differently in NY, I could definitely be convinced otherwise. There’s a lot up in the air right now.

    What I do think is that the sites do not want a NY court to rule SOLELY on the issue of whether daily fantasy sports is a contest of chance under NY state law, because I’m fairly certain the Court would apply the material element test and DFS almost definitely qualifies as contests of chance under that test. If they want their day in court, keep the focus on the AG’s other statements, such as his conclusion that season-long fantasy is not a contest of chance but DFS is, or about their statements that somehow the sites both offer illegal gambling that is all luck-based, and that 99% of the money is won by 1% of the players. Or just use the case to win the PR battle and hope for favorable legislation.

    But again, an expert I am not.

  • DavidK44

    @maurile said...

    I don’t think that’s clear cut. See the authorities cited in paragraph 66 of the DraftKings petition:

    http://online.wsj.com/public/resources/documents/2015_1113_DraftKings.pdf

    Or see the commentary here:

    http://www.jdsupra.com/legalnews/chance-v-skill-in-new-yorks-law-of-gam-28448/

    Both of those sources are leaving out or minimizing the fact that some cases construing NY law have discussed “material degree” rather than “dominating factor.” But I don’t think any of them count as binding precedent. In United States v. Dicristina, for example, which you cited above, the court noted that the defendant had waived the argument that poker wasn’t gambling under New York law. I’d count that case as being on the “material degree” side of things, but I’d argue that it really counts as dicta rather than binding precedent because (1) that issue, having been waived, wasn’t squarely before the court, and (2) that was in federal court, and a federal court’s interpretation of state law is not binding on state courts.

    I’m sure the rest of the people reading this will LOVE our conversation. The dicta in the case I cited also seems to suggest that it’s fairly settled that in NY, the material element test would apply. Yes, it was not contested, but I read the dicta that way and I do not believe the Court would put such dicta in their opinion unless they were fairly certain NY did in fact apply the material element test.

    I looked into the citations offered in the Draft Kings letter. The restatement citation (at least I’m 99% sure it is the Restatement for NY Gamblig Law)led me to a 2006 article about Poker’s chances in NY that suggested the same thing that I’m saying now. Granted, 2006 is a long time ago in regards to this issue, but it was still post UIGEA (The 62 N.Y Jur. 2d Gambling § 3 (2015) citation).

    Now obviously that was just an absolute cursory look over the question. Hopefully I’m wrong, that’s for sure. But from what I’ve seen so far, it doesn’t look good, at least from that angle.

  • loured

    • 353

      RG Overall Ranking

    I don’t believe a judge will Not grant a injunction while this is resolved. I am just concerned that the payment processors decide they don’t care and stop business regardless of injunction. Especially the NYS based companies . I don’t think they want to make enemies with the AG .

  • maurile

    I haven’t examined the issue in any depth, but it seems like there are at least some non-frivolous arguments that New York is still a “dominant factor” state despite the literal wording of its applicable statute. We’ll find out more as the issue is briefed in the near future, I suspect.

  • DavidK44

    @maurile said...

    I haven’t examined the issue in any depth, but it seems like there are at least some non-frivolous arguments that New York is still a “dominant factor” state despite the literal wording of its applicable statute. We’ll find out more as the issue is briefed in the near future, I suspect.

    Agreed that there’s at least enough for a Court want to hear briefs from both sides and have a full hearing on the matter. Which is certainly a good thing.

  • TeamTwerk

    In order for DFS to be considered a game predominately of chance wouldn’t it logically require the sports themselves to be considered games of predominately chance?

  • Fnorney76

    I’ve only played season-long fantasy leagues with one group of folks for the last several years. We don’t play for money because we’re spread around the country and the commissioner doesn’t want to have to deal with money issues. So the sites can serve a good purpose by handling all the money aspects regardless of whether its season-long or daily.

    More importantly, since our football league is in a heads up format, winning, losing or cashing (if we were playing for money) would be dependent upon a one-day DFS game anyway. Yeah, you can make the playoffs by your season long performance, but when the winner is determined, its a one day thing. So I think the AG has left himself in a position where its difficult to explain his logic that season long leagues are ok, but DFS is not.

  • Steroid

    Wondering if there’s a clever way to make DFS, Season Long, at least in name, but in practice somewhat the same.

    $20 X 12 weeks to start the season? Pick your players every week. Smaller pools divided out weekly based on weekly performance. Whoever has the most points at the end of the season wins the large prize pool? That could be fun.

  • jason18801999

    im a NY resident and FD put through a $10 paypal deposit

    Wonder why it worked, I didn’t think it would.

  • HalleluYAH

    agreed… that is exactly what I am hoping these sights offer now… i believe the ideology behind this is longer duration contest/leagues, require more skill than daily ones, for many reasons. those of us who play season long leagues know the level of skill it takes to in in the end… that said, i play daily leagues all the time, or at least I did until last night (NY resident), and also believe whole heartily this too is a game of skill. if you go in and randomly pick players, without considering injuries, matchups, blowout potentials, etc etc., then you are throwing money away. however, if you do consider these issues, and pick players accordingly, you have a better chance of winning. I have found a system for NBA DFS that works, and am winning 2 out of every 3 contests I enter, but it requires thoughts/skill. how then is this gambling? addictive, sure, but gambling, no. doritos and ice cream can be addictive, and they attribute to type II diabetes, but are they illegal?

  • HalleluYAH

    perhaps you have locations permission turned off. if you are using a mobile, see if they show your location on the my account page.

  • Joe1Coal

    @Steroid said...

    Wondering if there’s a clever way to make DFS, Season Long, at least in name, but in practice somewhat the same.

    $20 X 12 weeks to start the season? Pick your players every week. Smaller pools divided out weekly based on weekly performance. Whoever has the most points at the end of the season wins the large prize pool? That could be fun.

    I would be into that.

  • mayakoba1

    if in NY, will you still be able to enter contests this week while the situation plays out?

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