FSTA Lobbyist Tells Lawmakers: Seasonlong Fantasy Involves Less Skill Than Daily Fantasy Sports

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A lobbyist for the Fantasy Sports Trade Association said in testimony before a New Jersey Assembly committee that daily fantasy sports requires more skill than playing seasonlong fantasy sports.

The comments came as jurisdictions across the country have started to consider whether regulation of the DFS industry is necessary, and as there have been rumblings of the idea that seasonlong fantasy will be conflated with its DFS cousin.

What the FSTA lobbyist said

FSTA outside counsel Jeremy Kudon was speaking in testimony on Monday in front of the Assembly Tourism, Gaming and the Arts Committee. The hearing was merely informational in nature, but it became contentious when the members of the committee interacted with industry witnesses, including Kudon and counsel for FanDuel and DraftKings.

In making an extensive argument about the idea that DFS is a game of skill, and not a game of chance, Kudon said that DFS and seasonlong fantasy are not equal in the amount of skill each requires. Here is an excerpt from his spoken testimony:

The $64,000 question, it seems in today’s hearing, is whether skill plays the same role in a daily or weekly contest. And the answer, at least in mine and others’ views, is no it does not. Skill is even more determinant of outcome in a daily or weekly contest, than it is in a seasonlong contest.

Now I know I can see some of you are skeptical about this. But it comes down to information. The shorter the duration of the contest, the more information that you have to assemble your team. And as court after court has recognized, the role of skill in the outcome of a contest or an activity becomes even more important, the closer you get to perfect information. In other words, luck or chance plays an even smaller part in a daily or weekly contest, than in a seasonlong contest. It was hard for me at first to hear that, but having done it I agree, having played daily fantasy sports contests, they are absolutely right.

He mentioned some of the variables that he said are more impactful in a seasonlong format than in DFS, such as injuries, or players who underperform based on their preseason projections.

In comments earlier in his testimony, Kudon said “the two formats are virtually identical” and noted that all fantasy sports are games of skill. He said seasonlong fantasy is like traditional chess, while DFS is like speed chess.

The question of seasonlong starts with Nevada

The Associated Press tackled the potential issues regarding the legality of seasonlong fantasy in Nevada in a story in October. AP reporter Kimberly Pierceall noted that Yahoo had already stopped offering real-money seasonlong fantasy contests Nevada; that came after an announcement from the Nevada Gaming Control Board that DFS sites require a license to operate and a lengthy report from the state attorney general’s office on the legality of fantasy sports under state law.

The legal analysis and the NGCB edict applied only to daily fantasy sports, at the time, but it may not stop there. More from the AP:

“The focus of the analysis was daily fantasy and we will look at season-long offerings under the same microscope,” said Nevada Gaming Control Board chairman A.G. Burnett, shortly after the opinion was first issued. Board member Terry Johnson said regardless of the time period, daily versus season-long, “it would still come down to if it constitutes sports wagering.”

A recent Sports Business Journal story by Eric Fisher (paywall) also noted that the seasonlong fantasy industry could be impacted in states other than Nevada, as well.

The implications of saying DFS is more skillful

The comments from an FSTA lobbyist may seem harmless enough in a vacuum. But DFS is already coming under fire on the “game of skill” vs. “game of chance” argument in many states. That includes New Jersey, where at least two assemblymembers on the committee questioned exactly how much chance and skill are involved in DFS.

Sources from the seasonlong fantasy industry told SBJ’s Fisher that they are open to the idea of a regulation, but presumably seasonlong operators have no desire to be licensed and taxed, an idea that has been floated in New Jersey and elsewhere for daily fantasy contests.

What started out as increased scrutiny of just DFS operators now has a possibility of impacting the entire fantasy industry. Equating seasonlong fantasy and DFS — and saying the former requires less skill when many jurisdictions are struggling with the issue of whether the latter is gambling — is an interesting strategy.