David Boies, counsel to DraftKings and Chairman at Boies, Schiller & Flexner LLP, released a statement through DraftKings Monday, along with a copy of a brief in support of its motion for a stay, also filed Monday with theAppellate Division of the Supreme Court of the State of New York.
The brief notes that DraftKings has operated in New York for about a decade with no interference from attorneys general and requests to maintain the status quo through a short extension of the interim stay that is already in place; otherwise the company would be forced out of business in the state before the case could be heard and decided on its merits.
In the release Boies says, “Our arguments remain strong and we are confident in our appeal for four simple reasons:
1. The Attorney General has still offered no evidence that supports a preliminary injunction.
2. Daily fantasy sports contests are not gambling – their outcome is controlled by the knowledge and skill of DFS players – that’s how you win or lose.
3. The only difference between a daily and a season-long fantasy contest is how long it lasts and the Attorney General has said that season-long fantasy sports contests are lawful.
4. It is legal for skills-based contests to charge entry fees and award prizes to participating contestants. A DFS player exercises “control and influence” over whether they win a prize by their choice of a roster which is without a doubt a skills-based exercise.”
New York Attorney General Eric Schneiderman has painted DFS as an illegal gambling activity. In December a lower court judge sided with the lawman and barred the companies from operating in the state. An appellate judge stayed that order until a full panel of appellate judges can weigh in on the issue. The panel could convene within as soon as two weeks, placing the decision right in the middle of the NFL playoffs.
Schneiderman is staying on the offense and recently demanded that DraftKings and FanDuel return entry fees to NY State residents, which could amount to as many as 600,000 refunds worth as much as $200 million for 2015.
