Former Federal Prosecutor: Daily Fantasy Sports Nothing Like Online Poker Circa 2011

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DFS vs. online poker

As federal and state investigations of the daily fantasy sports industry have cropped up, comparisons have been made to what happened to the online poker industry more than four years ago.

A federal investigation that originated in the Southern District of New York turned online poker on its head in 2011, as major operators PokerStars, Full Tilt Poker and Absolute Poker had their domains seized and were shut down in the U.S.

Fast forward to 2015, and the DFS industry is reportedly under investigation by the SDNY, and even by the same U.S. attorney behind the 2011 “Black Friday” case, Preet Bharara.

But in a lot of ways, the comparisons should likely stop there, according to Sharon Levin of WilmerHale, who is advising FanDuel. Levin is uniquely situated to see the differences: Until April, she ran SDNY’s money laundering and asset forfeiture unit, and worked for the U.S. attorney’s office during the 2011 online poker cases.

“They’re not illegal businesses, they’re so different than the poker companies,” Levin said of DFS operators like FanDuel, in a recent interview with Legal Sports Report. “[The poker sites] were companies that were in the U.S. market knowing that it was in violation of the law and they were operating from offshore to do that.”

Obviously, at least some disagree with the idea that they are illegal businesses — most notably the New York attorney general, Eric Schneiderman. But still, at its core, the legal concerns with the DFS industry are far different than the online poker cases.

Online poker cases were really about fraud

Levin believes this is a key point that many may be unaware of: the poker companies in 2011 were targeted by the SDNY for fraud.

“The investigation of the poker companies, and the case that was brought — the prosecution, the money laundering and civil forfeiture action that was brought against Full Tilt Poker, PokerStars and Absolute Poker — wasn’t just about gambling. At its core, it was a fraud case; gambling was the motivation for the fraud,” Levin said.

Poker companies between 2006 — when the Unlawful Internet Gambling Enforcement Act was passed — and 2011, used third-party payment processors to attempt to skirt the law and serve the American market. That same law created a carveout for payments to be processed for the fantasy sports industry, as long as contests followed state law.

“After the passage of UIGEA, banks and credit card companies were unwilling to process online poker payments,” she continued. “The poker companies used fraudulent methods to trick banks and credit card companies to process transactions, and they moved billions of dollars in and out of the United States financial system.”

As far as this comparison, FanDuel is nothing like the companies the SDNY targeted in 2011, according to Levin.

“FanDuel could not be more different than that,” Levin said. “They are operating in the open. They don’t use third-party payment processors. They use Visa — you look at the website, Visa, MasterCard, PayPal. There’s no fraud, there’s no lies, there’s no shady payment processors that are involved.”

As far as anyone knows, the investigations into the DFS industry in general and FanDuel and DraftKings in specific have nothing to do with fraud. The New York case — the only case whose contents the public is aware of — is about whether DFS is gambling under state law, and about alleged deceptive advertising by FanDuel and DraftKings.

Online poker sites were offshore, on purpose

Levin draws another bright line in how online poker sites acted vis a vis the actions of FanDuel. The passage of the UIGEA created a point at which the processing of payments for online poker was illegal, and sites knew exactly what they were doing.

“Another big difference is the interplay with UIGEA,” Levin said. “The view was, at least by the Department of Justice, there may have been uncertainty in the law before that, but it was clear afterwards that there was a violation of U.S. law. Most of the other companies dropped out of the market, but Full Tilt, PokerStars and Absolute Poker moved in essentially, and took over the U.S. market but operated from overseas.”

“And most importantly, they (poker companies) kept none of their money in the U.S.,” Levin continued. “There was no money, there were no assets of the companies in the U.S.”

FanDuel and nearly every other DFS operator is located in the U.S. or Canada, and FanDuel is acting transparently, according to Levin.

“In contrast, FanDuel operates in the U.S. It’s a company that’s located in New York,” Levin said. “It keeps all its money in the U.S. It’s not hiding, it’s not using third-party payment processors. It has disclosed to investors, it has disclosed to government agencies how they operate, and how they manage their funds.”

Online poker sites were knowingly bad actors

FanDuel has always done its best not to operate in jurisdictions where it believes DFS is illegal, Levin said.

“FanDuel did something that PokerStars and Full Tilt and Absolute never did,” Levin said. “It blocked players from states with laws that appear to treat daily fantasy sports as gambling.”

That refers to the five states where DFS is generally considered to violate state law, and Nevada, where a license is now required to run DFS contests. That even goes for New York, a market from which FanDuel has withdrawn while the current legal battle is still going on. Of course, the law on whether DFS is a game of skill under state law is still considered a gray area in other jurisdictions by some.

There’s an even bigger difference between FanDuel and the 2011 version of Full Tilt Poker, which basically stole money from its customers, Levin said.

“They segregate the player funds. They’re a legitimate company, they keep their player funds separate, they don’t defraud their players,” Levin said of FanDuel. “They don’t treat the money as a piggy bank for the owners [unlike Full Tilt did].”

And Levin says FanDuel, in her estimation, has good internal best practices for things like anti-money laundering protocols.

“They have a compliance officer [for AML],” Levin said. “Even though they are not a regulated entity, they are acting like they are.”

The takeaway? DFS problems are different from online poker

The DFS industry is clearly encountering legal issues — the active New York state case and the reported federal investigations in New York and Florida are what we know of right now.

And while the online poker cases seem like a convenient comparison point, the investigations and the legal problems being encountered by FanDuel and the DFS industry are in most important ways nothing like what went down in 2011.

Questions of the legality of DFS under state law — and whether it needs to be regulated by states — will likely persist, but the DFS industry is in a wholly different position than the online poker industry ever was.