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The legality of daily fantasy sports is an unsettled question of opinion, not a question of fact.
That’s the truth about the legality of daily fantasy sports in America.
For “anyone who has taken the time to understand the law as it relates to DraftKings’ offerings, and anyone who has seen the data . . . on the skillfulness of the game, it’s really, honestly not a debate,” Robins said. “It’s clearly legal. And we have a team of great lawyers who watch everything we do.” […]
“It’s easy for some people to say . . . ‘Hey, this is a question,’ ” Robins said. “It doesn’t mean they’re right.”
… I appreciate that he’s trying to protect his business. But it strikes me as a poor strategy for doing so.
First, there’s the obvious contradiction in his statement: if the product you offered was “clearly legal,” you probably wouldn’t need “a team of great lawyers who watch everything” that you do.
More troublingly, his insistence on reducing a complex issue to such black-and-white declaratives flies in the face of a raft of facts that would lead most rational observers to conclude the legality of DFS is far from a settled matter.
Ask yourself if the following facts about the conversation around DFS at the state level comport with Robins’ description of DFS as a “clearly legal” product that warrants no debate:
The fact of the matter:
Given the above, it’s simply inaccurate to say that the legality of daily fantasy sports is not a matter of debate. We are, as it happens, presently in the middle of that debate.
A common reaction I get after articulating the situation at the state level is “what about the UIGEA? Doesn’t that make daily fantasy sports legal?”
What we’re left with after even a cursory examination of the UIGEA are more questions than answers about the legality of daily fantasy. The legal clarity Robins definitively asserts certainly doesn’t spring from here.
In a world where Robins’ assertion is accurate, you would expect the daily fantasy industry to move in lockstep in terms of the types of sports and games they offered.
After all, we’re talking about a hyper-competitive industry where every player is worth fighting for. But despite that fact, there are a number of points of divergence among operators:
These are points of divergence driven by differing opinions regarding the law. That is the definition of a debate.
To borrow a phrase: It’s easy for DFS operators to say there’s no debate about the legality of the product. That doesn’t mean they’re right.