Can’t say I’ve studied both lawsuits too closely (you can find both here at The Boston Globe). Unlike in past years when proposed bills and legal action regarding online poker would provoke several hours of reading and link-chasing in an effort to get a handle on every last detail, the DFS saga can’t really capture my attention as thoroughly.
I did read both, though, as well as several articles surrounding this new development in New York. Both lawsuits seek injuctions against Schneiderman to stop him from stopping them from operating in his state, and both sites make similar points to support their arguments. The tone is more strident in the DraftKings one, I think, or at least that’s my impression. And there’s one other item unique to the DraftKings suit that kind of stands out for poker players bothering to sort through these DFS defenses.
In his declaration last week, Schneiderman announced that a review by his office “conclude[d] that DraftKings’/FanDuel’s operations constitute illegal gambling under New York law.” (Last month the Nevada Gaming Commission likewise ruled DFS to be gambling and thus subject to that state’s licensing procedures.) Schneiderman also highlighted other objections to allowing DFS in NY -- “not on my watch,” he writes -- including describing DFS as “neither victimless nor harmless” in its effects and charging that the sites “consistently use deceptive advertising.”
Responding to the characterization of dailiy fantasy sports as gambling, DraftKings in its lawsuit goes down the road of trying to emphasize DFS’s skill component. FanDuel does this as well in its lawsuit, but in a more general way that doesn’t overstate their position or introduce too many non sequiturs (as far as I can tell).
But get this from DK...
“DFS is... fundamentally different than other games about which the issue of skill versus chance has been previously debated, such as poker,” notes DraftKings. “Unlike poker, where players start each hand on a non-level playing field based on the cards they are randomly dealt, in DFS, each user starts in the exact same position and has complete and total control over the lineup the user chooses, within the consistent constraint of the salary cap.”
Set aside for the moment what is being said in the second half of that sentence about DFS and how everyone starts similarly with the same player base from which to choose, the same salary cap, and the same “complete and total control” over their entries. Look at the first half and how poker is being described. Is that not one of the strangest ways of highlighting the chance element of poker (and minimizing its skill component) anyone has ever tried before?
A hand of hold’em does certainly begin with the deal, and it cannot be denied that each player’s hand is going to be unique, thus creating what might be called a “non-level playing field.” You could also talk about the players’ different positions and uneven stack sizes making the playing field “non-level,” too. But to do so absurdly reduces the game of poker down to a single hand, ignoring the fact that the game is almost never actually played that way.
Over the course of many hands, the chance element introduced by “the cards they are randomly dealt” more or less evens out (more so with the more hands played, of course). Inequalities of position are also removed with the rotation of the dealer button. And if we want to talk about stack sizes, in a tournament players start with the same number of chips, and in a cash game there’s always the option to buy in for the maximum.
The playing field in poker is entirely level. The cards can introduce an element of chance that make it possible for the more skilled player to lose to the lesser skilled one. I think it’s safe to say something similar happens in daily fantasy sports every single night. After all, even if DFS players have “complete and total control” over who they select when completing their line-ups, they hardly have control over how those players perform.
In fact, if we really wanted to pursue a comparison here, DFS is essentially the reverse of poker. In poker you cannot dictate what cards you are dealt, but from there you do have “complete and total control” over your actions, with those actions necessarily affecting whether (and how much) you win or lose. Meanwhile in daily fantasy sports you do get to choose your “hand” or the line-up you set, but once the games begin there’s nothing you can further do to improve your chance of success (or to lessen your chance of failure).
Both involve skill (differently). Both involve luck (also differently). And both are gambling.
Not going to go further into the details of the lawsuits nor the many other ways DFS and poker are both similar and different. Was just struck by that one errant characterization of poker by DraftKings, seemingly out of place within the larger argument for DFS’s skill component.
There is one way, though, that poker has definitely suffered from having to be played on a “non-level playing field.”