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Analyzing the Legality of Fantasy Football
08/28/06
by Clay
On June 20, 2006 Charles Humphrey filed a lawsuit in the District Court of New Jersey alleging that fantasy sports league winners were predominantly determined by chance rather than skill. As such Humphrey asserted in his complaint that the most prominent providers of internet fantasy sports were violating the law by abetting gambling and that your Uncle Mark really has no reason to keep bragging about the fantasy football league he won back in 2002. Actually Humphrey didn’t mention your Uncle Mark, but he did say that thirty million Americans play fantasy sports each year and that these same Americans “wager” $110 on average each season. He asserts that this money is actually a forbidden form of gambling. Since I am not only Wes from Real World/Road Rules Fresh Meat’s favorite sports columnist, but also a lawyer, I decided I had to dive into the issues involved and analyze them with our typical hard-hitting investigation. So I did.
Wes…welcome to the Final Four of Fresh Meat.
Sincerely,
Clay
Occasionally people who read my biography email me to ask questions about being a lawyer and law school. Inevitably I inform them that the basis of a solid legal career in the 21st century is rooted in two distinct talents a. an ability to cut and paste with exquisite precision and b. an ability to recognize that instead of seeking an original thought or developing a unique perspective (as you have been taught to do for your entire academic career), you are now looking for language that has been cited and analyzed for decades. If found, you dance a jig and plagiarize everything. Then you cut and paste. This always throws the advice-seekers for a bit for a loop, what with their fancy ideas about Tom Cruise shouting down Jack Nicholson in A Few Good Men and all. Just wait until they find out most young lawyers spend their days sitting in front of a computer scanning email about asbestos while minimizing approximately fifteen other, more interesting, internet sites.
This picture of an asbestos-laden wall is approximately fourteen million times
as exciting as reading emails searching for the word asbestos. (It is also the
first time Tom Cruise has ever been pictured next to asbestos).
As for law school, I explain it thusly, in law school you learn all about the important and seminal legal principles upon which our nation was founded. You study the majestic sweep of opinions like Marbury v. Madison, New York Times v. Sullivan and Brown v. Board of Education. You engage in complicated discussions about the nature of Constitutional Theory and debate the proper role for a judiciary in a republican government. During this time you are surrounded by intelligent and eager people and get to wear shorts and flip-flops and not shave and everyone likes you anyway. Then you graduate and have to shave, wear pants, and respond to interrogatories.
Graduating from law school is a bit like paying to play professional football
for three years and then, upon graduation, being in charge of stapling the playbooks
and screwing the tops on the water bottles. Only you do this for seventy hours
a week at a minimum…for at least seven years.
So, by all means, go to law school. While you are there some people will write
very long and nuanced forty-page articles about esoteric areas of the law for
law journals. These articles will be read by approximately eight people, one
of whom will think you are brilliant, two of whom will think you are an idiot,
and five of whom will lie and say they actually read your article. As readership
goes, internet message boards for your favorite sports team offer thousands
of more people who will consider your opinion. But you toil not for the glory
of your readership of three, but for the illuminating insights you bring to
the common law.
Number of people who have ever read this Law Review: 42. Number of these people
who have not paid for sex: 0.
Occasionally one of your friends will spend an entire semester slavishly working on an article that is so patently absurd, you will constantly make fun of him. (Law school students are very mature). And then one day, you will discover that there is a legal case on point with your friend’s legal article about whether fantasy sports are constitutionally subject to regulation as gambling. And your friend will gloat and brag and laugh and deride you. But you will be very mature when you decide to interview him as an expert on the legality of fantasy sports. You won’t even mention the fact that he has torn both ACL’s in each of his legs or once went to a law school Halloween Party shortly after tearing his ACL dressed as a flag- football player with a torn ACL. Because that would be petty, mean and spiteful. And I am none of those things.
Without further ado, meet Neville Dastoor, the foremost legal expert on the regulation of fantasy sports as gambling in America. As titles go, there are better ones: Crown Prince of Belgium, Heavyweight Champion of the World, Natalie Gulbis’s masseuse, but few that are more important to the fantasy football geeks of America. In addition to his fantasy sports expertise Dastoor’s other primary talent is an uncommon ability to spin any situation, no matter how unique, into an analogy.
According to Dastoor’s law review article plaintiff Humphrey is wrong. See Dastoor’s fantasy sports article here in Volume 6 Number 2 () if you feel like taking a nap or emailing me to pretend you read it. Without further ado, the interview:
1. Why shouldn’t fantasy sports be subject to regulation as gambling?
“That’s absolutely ludicrous. Not even from a legal perspective to start with, just from a common sense perspective. There’s no way we should be wasting the courts resources to focus on something of such minimal value when there are serious crimes and issues facing our country. I mean there’s no corruption of the game involved here. It’s not like the Sugar Daddy Posse (my team name since 1998) is going to get to Cadillac Williams who is making several million a year and convince him to throw his game so Sugar Daddy Posse can beat the Tampa Bay Warhorses (Dastoor’s team name).”
2. Isn’t there a legitimate argument that much like marijuana is a gateway to drugs that fantasy sports is a gateway to gambling addiction?
“That’s like saying that taking a shower with your sister when you are both two or three years old is going to make you pursue incest as an adult. Patently absurd, Anything could be considered a gateway. Playing sports themselves could be a gateway to gambling on sports.”
A lonely man attempts to hide his addiction to fantasy sports behind a marijuana
plant.
3. Isn’t the skill argument just a clever way for people to avoid acknowledging that fantasy football by its very nature requires a gamble? I.e. doesn’t every fantasy football player have a story about some chump who won a league without ever changing his team or adjusting his lineup for the entire season?
“Of course, but there are exceptions to every rule. For instance monkeys occasionally beat Wall Street money managers by throwing darts at the financial pages. But I don’t think anyone is suggesting they’d like their 401k managed by Marcel the monkey from Friends.”
While Ross dutifully listens Marcel explains why he decided to draft Larry Johnson
last year while everyone else was drafting Priest Holmes.
4. What about European dudes who somehow end up in American fantasy football leagues? Aren’t these guys operating entirely based on chance?
“Yes, European dudes in fantasy football leagues are a well-noted exception to the otherwise impeccable skill argument.”
The exception.
5. What about people with no sports knowledge who are essentially playing fantasy sports for chance? In other words what standard of skill are we assuming applies for a fantasy football player?
“You assume that people who are competing are going to try to win. Period.
If we regulated everything solely to protect people then driving, poker, and
bocce ball wouldn’t be allowed. I mean, people can lose money in thousands of
ways that are much faster and easier than fantasy sports.”
6. Are we adopting the (shudder) reasonable fantasy football player standard?
(This is a moderately bad legal joke. I apologize. For the record, there are
no good legal jokes.)
“Yes, because like life, most people don’t sell their 250k house for 45k or
trade Kansas City Chiefs starting running back Larry Johnson for Ovie Mughelli,
fullback for the Baltimore Ravens. Some people might but those people aren’t
reasonable.”
Somewhere Ovi’s mother is crying…and wants to kill Neville.
7. If a fantasy sports provider locked the league at the beginning of play (that is there were no lineup changes, player pickups or trades allowed) how would this affect your analysis? Conversely, if a league allows unlimited roster moves, player pickups or trades how does this affect your analysis?
“Skill could be equally applicable in both cases. The ability of forecasting vs. the ability of prediction/adaptability once the season begins. This is like asking whether more skill is involved in identifying the girl you have the best chance of taking home at the bar or….(Dastoor pauses for thirty seconds). This is a really hard analogy to make.”
8. What if the computer drafts a player’s team as opposed to a player himself drafting? Isn’t this entirely a chance-based approach?
“First most leagues allow you to pre-rank your draft list even if you aren’t there to draft in person. And secondly, it can still depend on whether regular season moves are allowed and made. Even after the draft occurs there is still plenty of milk to suck from the fantasy teat.”
9. Do fantasy sports have more in common with poker or the lottery? Why and why does it matter?
“It’s more like poker. You can’t control an ACL tear with meniscus damage to a key player, but you can’t stop someone from catching a straight from the river in poker either. But, over time, a good and skilled player will be more successful than an unskilled one. Also, for instance you can read your fellow fantasy players based on their tendencies. Some people consistently draft the same players. Doesn’t matter if Daunte Culpepper tore all three major ligaments in his knee, some guys are still going to take him as their starting quarterback.”
10. What’s the danger if we allow regulation of fantasy sports to occur as gambling?
“The danger would be political upheaval.” (Pause for laughter and ridicule from the interviewer to the interviewee.) Followed by: “Seriously how are you going to enforce this thing? Will there be fantasy sports sting operations seizing computers, your buddies’ draft boards, your favorite fantasy football magazines? Would there be informants inside the fantasy league? Just too ridiculous. It probably would lead to even more gambling issues. It’s not like men who are interested in football are otherwise going to spend these hours painting abstract masterpieces or learning sign language.”
11. Is there any way you are ever going to let me forget that I interviewed you about your fantasy sports article?
“Not likely. That would be like the mighty eagle suddenly eschewing a meal featuring the timid meerkat.”
A timid meerkat.
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