When DraftKings and the daily fantasy industry meets New York’s attorney general in court on Wednesday at noon, it will be represented by one of the most experienced lawyers in the United States. David Boies, the 74-year-old chairman of Boies, Schiller & Flexner, has argued cases in front of the Supreme Court and has represented such clients as Hank Greenberg and Al Gore.
The Wednesday hearing could provide the most important court decision in the young history of daily fantasy sports. Should New York Supreme Court Justice Manuel Mendez rule in favor of the New York AG, daily fantasy operators in the state would be subject to a preliminary injunction, shutting down activity in the short term.
In a conference call with reporters, Boies previewed his case against New York Attorney General Eric Schneiderman: It will focus on New York state law. “New York law expressly permits New Yorkers to pay entry fees to contest for fixed prizes,” he said. “New York law indeed even expressly permits New Yorkers to wager on contests of skill in which they personally participate. Anyone who has ever played a daily fantasy sports contest knows that this is a contest of skill.”
In New York, the legal definition of skill is more rigorous than most states (including Massachusetts). If the judge rules that there is a “material degree” of chance, then that’s all it takes to be classified as gambling.
“The very evidence that the Attorney General relies on for his advertising claim is that he says DraftKings suggests in its advertising that anyone can win and that’s not true because about 1% of players win a majority of the prizes. That can only happen if skill is determinant. The same people win repeatedly. That can’t happen if there’s a material degree of chance.”