A Sports Fan's View of Sports Law

I look at the many different legal issues in the sports industry and express my views on the current problems.

[rbogatz-blog]

DeflateGate: What’s Next on the Road to Redemption?

The judges are now set and it is time for the NFL’s appeal of the Tom Brady ruling to commence.   Prior to the start of the 2015 NFL season, we were all overwhelmed with the amount of coverage of the DeflateGate scandal that rocked the 2014 NFL playoffs.  Did Tom Brady have anything to do with those deflated footballs? We will never actually know.  The truth is the answer does not even matter.  The NFL found that it was “more probable than not” that Brady knew about the deflated balls and Roger Goodell decided to suspend Brady for four games. The suspension was subsequently overturned and the NFL’s appeal of that decision is set for this week.

One big question of concern here is how much power we should give to the commissioners of these professional sports leagues and how much weight should be given to the collective bargaining agreements.  In the case with the NFL, the CBA was seen as ambiguous in regards to what the rule and punishment were for deflating footballs. Judge Berman of the SDNY felt that this ambiguity violated Brady’s due process and that Goodell overstepped his authority.  I completely agree with this decision.  Roger Goodell and the NFL did not even have actual evidence that Tom Brady was complicit in this deflating scandal.  

The collective bargaining agreements need to be straightforward about what constitutes a violation and the punishment that is attached to the conduct.  The commissioner cannot have the freedom to classify a violation as whatever he wants and then slap any punishment onto the player.  Roger Goodell has been at the forefront of these types of incidents lately with the suspensions of Ray Rice and Adrian Peterson.  However, he is not the only one with this power.  The commissioners of the NBA, MLB, and NHL all have broad disciplinary power that also cannot be allowed to get out of hand.  The decision in the Brady appeal will be a very important step towards having a more clear direction for future collective bargaining agreements and the power they give to commissioners.

[rbogatz-blog]

The Uncertain Future of Daily Fantasy Sports

Fresh off the news that ESPN has ended its exclusive advertising deal with DraftKings, I felt like I should further explore the world of daily fantasy sports by looking at the overall legality of the industry itself.  The Unlawful Internet Gambling Enforcement Act of 2006 is the statute that first crafted an exemption for fantasy sports to be legal if certain criteria are met.  Essentially, fantasy sports games have to be skill-based with no outcomes being determined by single real-world teams or athletes.  This is where daily fantasy sports may be in some trouble. 

Daily fantasy sports lineups are chosen for one day of games (or one week for football) with participants having an imaginary “salary cap” that they cannot go over in order to pick their players for that specific day or week.  This helps with the argument that these games are skill-based under UIGEA. Contestants need to have knowledge of the matchups, weather conditions, home/away team, and many other factors in order to craft the team that gives them the most bang for their imaginary buck. On its face, this seems to require quite a lot of skill.  However, this is where one could make an argument that this is not skill-based but a game of chance.

Each user’s team is only going to be as good as the collective performances of each individual athlete on their team that week.  The user has absolutely no control over how each one of these players is going to perform in their game.  Athletes can get sick, injured, not play much, or a whole host of other things that can effect their overall performance.  All of these things are completely random with the argument for illegality being that no amount of skill can overcome the amount of chance that is involved in daily fantasy outcomes.  

Many state governments are ruling that daily fantasy is illegal gambling with Nevada and New York leading the charge.  If this trend continues, it is highly likely that we will see the daily fantasy industry disappear like many Internet gambling sites before it.

[rbogatz-blog]

Read This Post and I’ll Double Your Knowledge!: A Look at Daily Fantasy Advertising

There is no time like the beginning of fall.  The weather is starting to cool down, football season is starting, and every other commercial on TV is about daily fantasy sports.  These commercials are a new phenomenon that has started over the last few seasons.  It seems like anywhere you turn, you are being told that you can win millions of dollars just by playing in one of these contests.  At the end of the commercial, there are always codes that promise to “match your initial deposit” or match your deposit “dollar for dollar.”  This season in particular, I felt like these advertisements were unavoidable so I decided to check out FanDuel and DraftKings to see what they were all about.

The thing that immediately jumped out to me was that both of these sites were extremely misleading in their advertisements.  The promotional codes that they gave on their commercials did not double the money that I deposited, but instead unlocked a confusing algorithm that allowed me to earn back my money based on how much I spent on entry fees.  In order to “match my initial deposit” of $200, I would have had to spend $5,000.  This was absurd to me and I decided to do some digging into the legality of their ads.

After doing some research, I found that these practices likely violated the Lanham Act, which has a section that prohibits “false or misleading representation of fact in commercial advertising.”  When looking to the factors that establish a false advertising claim, courts mainly consider whether the claim is likely to confuse or deceive consumers.  There is no doubt to me that these ads confuse people.  If a survey were to be conducted, I am certain that an overwhelming amount of consumers would say that they thought their money was going to be matched with no string attached.  

This is something that needs to be further explored.  The daily fantasy sports industry has many legal issues right now and this needs to be added to the list.  We need to protect consumers from these deceptive practices!