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.”

If that argument doesn’t hold up in court, it would be a major loss, considering that New York state provides the largest number of fantasy players for either DraftKings or FanDuel. Standing in the way of that result is Boies, who has stared down worse scenarios in his lengthy career and managed to pull off victories.

Here are some of Boies’ other clients and cases over the years:

• In 1998, he inspired Bill Gates to say “Mr. Boies made it clear that he is out to destroy Microsoft and make us look very bad.”
• After opposing Theodore Olson in Bush vs. Gore, Boies teamed up with Olson in the successful Supreme Court case to overturn Proposition 8 in California.
• He left topnotch law firm Cravath, Swaine & Moore in 1997 so that he could represent Yankees owner George Steinbrenner without appearing to have a conflict of interest.
• It was Boies, representing Sony Pictures late last year, who announced that the studio would release “The Interview” despite terrorist threats from North Korea.

Here are some additional thoughts that Boies shared on the conference call earlier in the week. He said:

FanDuel has been openly operating these contests in New York for almost eight years. DraftKings itself has been openly offering these contests in New York for almost four years. Never until 10 days ago had anyone, not the attorney general, not the attorney general’s office, not any public official suggested, hinted, asserted that there was anything illegal about what FanDuel or DraftKings were doing. …

I think that the attorney general has obviously changed his mind as to whether daily fantasy sports games should be conducted in New York. He’s entitled to change his mind. He’s not entitled to unilaterally change the law. The law entitles New Yorkers to play these games. They enjoy the games. It is a very, very popular form of competition and entertainment and we are hopeful that they will, the court will rule that the New York attorney general does not have the right to shut down this type of competition and if there is going to be a change, it has to come from the legislature.

Image via Doc Searls, CC By SA 2.0