DraftKings power attorney unleashes his case against New York

20 November 2015
DraftKings' hiring of attorney David Boies appears to have been worth every penny for the daily fantasy sports giant.
No, a decision hasn't been made in the company's fight against New York Attorney General Eric Schneiderman. That may or may not come on Wednesday when an emergency hearing will take place in response to the cease-and-desist order the AG filed last week, seeking to shut down all DFS operators in the state of New York, posthaste.
DraftKings has hired power attorney David Boies (photo by David Shankbone)

DraftKings has hired power attorney David Boies (photo by David Shankbone)

But after listening to Boies hold court today with the media during a conference call to discuss the case and upcoming hearing, it's clear DraftKings' decision to put its fate in the hands of the man Fortune magazine once dubbed "Corporate America's No. 1 Hired Gun" was a brilliant one, even if it had to blow its entire salary cap in the process.
Boies, who once prosecuted Microsoft in an antitrust lawsuit and boasts a roster of high-profile former clients that include CBS and Al Gore, calmly fielded questions today for over an hour from endemic and mainstream media, including the likes of Fox News, USA Today, The Wall Street Journal and MSNBC.
He was convincing, calculated and compelling as he tore down the AG's argument that daily fantasy sports should be considered unlawful gambling. So much so that if Las Vegas bookmakers had to hang a line on Wednesday's Schneiderman vs. Boies head-to-head match, DraftKings would be a favorite of Floyd Mayweather proportions.
The basis of Boies' case is simple and he drove home his point multiple times on Friday, without ever mentioning Schneiderman by name. FanDuel has been operating in New York for eight years. DraftKings has been doing so since 2011. How can Schneiderman suddenly claim something that has been considered "lawful" for the last eight years to all of a sudden be "unlawful"?
"During this entire time period no one has questioned the legality of (daily fantasy sports)," he explained. "In the meantime, there are a large number of well-known public companies that have invested in DraftKings and FanDuel.
"It would be a disaster for the company, its employees, its investors and it would unfair to the tens and thousands of its customers to simply shut it down because the attorney general has changed his mind on whether or not it's legal, without taking his case to the court."
Boies also pounced on the disclaimer that a very small percentage of DFS players actually win on a regular basis.
"That issue is really a concession statement by the attorney general and is fatal to their case," he said forcefully. "If most people lose money and the same people continue to win repeatedly, that is absolute proof that this is a game of skill we are talking about and not a game of chance.
"This kind of disparate results does not happen in casinos, in games of chance. It does not happen in games that are beyond the control of the players. It happens in games of skill where the player can control or influence the outcome.”
When asked why that differed from poker, Boies didn’t miss a beat and at the same time proved his poker chops.
"If you're playing Hold'em and the first two cards you receive are aces and the other person's are a two and a six, that other person could have all the skill in the world, but is probably not going to beat you," he explained. "That random deal of the cards at the start of the game brings an element of chance that can, in any given game, outweigh someone's skill. By contrast, in daily fantasy sports, everybody starts equal."
As persuasive as Boies sounded, he said he doesn't know what to expect on Wednesday. He said he has a "hard time predicting what judges are going to do" and added that he wouldn't be surprised if after hearing both sides the judge decides to "take more time to consider all the arguments" and delay his decision.
Regardless, Boies was adamant that DraftKings should and will continue to offer its services to New York state residents, even though a cease-and-desist order has been filed and its chief competitor FanDuel has abided by the request.
"We believe the company is entitled to have its day in court before having its business stopped prematurely," he said. "That's particularly true because of the many years in which the company has operated in New York. They should be allowed to continue until a legal decision is made.
"FanDuel obviously made a different decision and that's their choice. But from DraftKings' standpoint, they believe this is the right decision for the company, its employees, its investors and its customers."

Gary Trask

Articles by Gary serves as Casino City's Editor in Chief and has more than 25 years of experience as a writer and editor. He also manages new business ventures for Casino City.

A member of the inaugural Poker Hall of Fame Media Committee, Gary enjoys playing poker and blackjack, but spends most of his time sitting in the comfy confines of the sportsbook when in Las Vegas.

The Boston native is also a former PR pro in the golf-casino-resort industry and a fanatical golfer, allowing his two favorite hobbies - gambling and golf - to collide quite naturally.

Contact Gary at gary@casinocity.com and follow him on Twitter at @CasinoCityGT.

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