Remember a Day, Before the UIGEA

Fantasy sports actually came up as a topic during last night’s debate among Republican presidential candidates, although only long enough for one candidate (Jeb Bush) to make a weak joke about his own fantasy football team then add a generic reference to the need for regulation, and another (Chris Christie) to complain about it being a trivial issue then add a generic reference to the need for the federal government to leave fantasy sports alone.

It reminded me a little of people in poker back in the day sometimes wondering -- usually in a humorous way -- if online poker was going to come up in debates or speeches. Of course the topic never would, being so tangential, so it was kind of remarkable to think that daily fantasy sports (DFS) had made its way far enough into the cultural center to get that mention last night.

Of course, it took a few weeks worth of drama including lots of legislators on both the state and federal level wanting to examine DFS for that to happen. Against that backdrop, ESPN shared an interesting article yesterday titled “The true Congressional origin of daily fantasy sports” that provides some historical perspective on the legality of fantasy sports, in particular looking at the years preceding the passage of the Unlawful Internet Gambling Enforcement Act of 2006 which some have argued made the DFS industry possible, even if the bill’s authors never quite envisioned what that industry has become.

After looking into that history for several weeks, ESPN points out how the inclusion of fantasy sports as a so-called “carve out” in the UIGEA wasn’t actually the result of lobbying by the NFL or other sports leagues (as many have stated). About a month back I posted a list of UIGEA-related items here without comment that perhaps suggested as much, but according to ESPN this really wasn’t the case.

In that post I quoted the line from the UIGEA stating how “the term ‘bet or wager’... does not include... participation in any fantasy or simulation sports game or educational game or contest in which (if the game or contest involves a team or teams) no fantasy or simulation sports team is based on the current membership of an actual team that is a member of an amateur or professional sports organization.” Remember the UIGEA prohibits businesses from facilitating the funding of “unlawful Internet gambling” which refers to placing, receiving, or transmitting a “bet or wager” online, so saying fantasy sports doesn’t involve bets or wagers means funding online fantasy sports is not prohibited.

The whole idea for what eventually became the UIGEA arose in response to the growth of the internet in the 1990s and the initial appearance of gambling sites, including both poker and sports betting sites. But as the ESPN article points out -- and as many others have been explaining, too, especially over recent weeks -- the “fantasy sports” being exempted back in the late 1990s when legislators first began sharing early versions of online gambling-related legislation wasn’t at all like DFS.

There are references in the article from various folks (including legislators) characterizing those earlier fantasy leagues as being similar to friendly home games in poker -- that is, mostly between friends and for small stakes. There’s also a distinction made between longer (e.g., season-long) fantasy sports contests and shorter ones such as what has become the daily or weekly games. Only one brief exchange between former Arizona senator Jon Kyl (one of those often called an orginal “architect” of the UIGEA) and an attorney alludes to the possibility of shorter-interval fantasy sports contests, and that’s only in passing (and without any subsequent effect on how the law was ultimately worded).

Interestingly, the Department of Justice offered an opinion in 1999 that there should be no fantasy sports exemption in any federal legislation regarding online gambling. Then the topic wasn’t revisited at all over the next several years, making it seem as though the language relating to fantasy sports just kind of lingered there to be quietly included in the final version of the bill that was passed into law.

“There was no evidence in the Congressional Record that the final version of the UIGEA was openly debated in the lead-up to the Sept. 29, 2006 vote,” reports ESPN (a vote that technically didn’t finish until after midnight that night, thus 9/30/06). A lot of us well remember that part of the story. After it passed some legislators complained about the carve outs (including for fantasy sports), and of course there followed the ultimately unsuccessful efforts of Barney Frank and others to pass new legislation regarding online gambling. But the UIGEA remains the law of the land as far as federal legislation focused on online gambling goes, despite its abundant ambiguities.

The article concludes with some forward-looking thoughts about how things might proceed from here when it comes to this reconsideration of DFS’s legal standing. Included are quotes from current major sports leagues commissioners on the subject.

It’s obvious that DFS is almost entirely different from what “fantasy sports” was intended to signify in the UIGEA, which I suppose will be a central part of the debate among legislators going forward. In any event, today I’m lamenting we didn’t think to start calling online poker a “simulation sports game” at some point prior to October 2006.

All In All the Time

There are some in the poker world who seem to get bothered by the use of poker vocabulary in non-poker contexts, and especially the misuse of poker terms.

Regarding the former, some will roll their eyes at yet another reference to someone “upping the ante” or having an “ace in the hole,” mainly because such poker allusions often sound trite or unimaginative, an obviously clichéd use of language. Meanwhile the latter will earn even more vitriol -- just watch the next time you see someone make reference to holding a big poker hand and then deciding to double down (crudely mixing poker and blackjack).

For me, I tend to appreciate any instance of poker-related language popping up in non-poker contexts, primarily because it often reinforces the prominence of America’s favorite card game in the larger culture -- which (in turn) supports a main argument of the “Poker in American Film and Culture” class I’ve taught many times over the last several years. Even when the terms are being used imprecisely or incorrectly, I still find it interesting how the language of poker bleeds over into all sorts of areas that have nothing to do with card playing.

The poker term “all in” has become one of the most popular in non-poker contexts over recent years. On a sports talk show I listen to regularly, they probably use the phrase at least once every two shows or so, usually when the hosts are arguing some point and are challenging one another to commit to a certain position.

“Are you all in with that?” one will ask the other, and sometimes the answer will be in the form of valuing the point according to hand rankings. “This is pretty good... these are two queens I’m holding here,” will come the response.

Those guys understand what the term means and are more or less using it correctly. Meanwhile, as discussed in a new article in The New Yorker appearing today, it’s frequent use in politics is often not used correctly.

The piece by Ian Crouch, titled “Going All In on ‘All In,’” was prompted by Jeb Bush’s “All in For Jeb” campaign slogan. Crouch points out how the phrase is used a lot in politics, and almost never does it actually mean a candidate is fully committed behind whatever it is he or she is said to be “all in” about.

He concludes as well that Jeb Bush in particular seems less committed than most at this early point of the presidential campaign, and not so inspiring to others seeking a candidate on whom to bet their vote and go “all in” themselves.

The article is worth a read, both for the political insight and for a quick-and-easy history of the term and how now, suddenly, everyone seems to be going “all in” all the time.