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Second Circuit Tells DraftKings Participants Cheating is Part of Sports – Get Over it

You read that right. The exact quote from the Second Circuit’s March 21, 2022 decision in Olsen v. Major League Baseball, Docket No. 20-1831, reads as follows:

"[A]ny reasonable spectator or consumer of sports competitions—including participants in fantasy sports contests based upon such sporting events—is undoubtedly aware that cheating is, unfortunately, part of sports and is one of many unknown variables that can affect player performance and statistics on any given day, and over time."

The lawsuit was brought by DraftKings participants who allege that they were wrongfully led to believe they were engaging in “games of skill” based upon a fair gauge of players’ statistics, but in fact were duped because the defendants – MLB, the Red Sox and the Astros – fraudulently concealed that the players’ statistics were unreliable because of their knowledge of the electronic sign-stealing scandal during the 2017-2019 baseball seasons. Whatever happened to America’s Pastime!

Take Me Out To the Ball Game

In 2017, the New York Yankees filed a complaint with the MLB alleging that the hated Boston Red Sox were using electronic equipment to steal the signs given by the catcher to the pitcher. (It’s a well-known fact, that I can vouch for given my vast experience at Wiffle Ball games, that knowing what pitch will be thrown increases a batter’s ability to get a hit.) Upon investigation, of course the BoSox were stealing signs. (It is also a well-known fact that Boston teams have always had to beg, borrow and steal in order to beat New York teams.)

Take Me Out With the Crowd

Being the Red Sox, they countered that the Yankees’ YES Network broadcasters improperly tried to steal Boston’s signs. After investigation, MLB found insufficient evidence to support these allegations. Did you really think John Sterling and Michael Kay had the brains to run this kind of operation?

Buy Me Some Peanuts and Cracker Jack

Based on these findings, the DraftKings participants thought that their hard-earned knowledge through months of poring through The Sporting News and arcane statistics websites was being wasted, and they were not getting all of the prizes promised for their exhibition of their statistical prowess. I can just see them scratching their heads: How could Boston catcher Christian Vasquez go from a .227 batting average in 2016 to a .290 hitter in 2017 (and back to a .207 BA without some extra-legal help?)

I Don’t Care If I Never Get Back.

Actually, the DraftKings players did care about getting their money back; hence, the resort to a lawsuit.

Let Me Root, Root, Root for the Home Team.

Teams, sheams. It’s all about the stats these days.

If They Don’t Win It’s a Shame

And that’s basically what the Second Circuit thinks:

'[T]he existence of numerous variables in real-life baseball, including rules violations (whether intentional or unintentional), does not mean that MLB DFS contests do not involve the skill of the fantasy baseball participants."

If the dorks (too harsh?) routing for statistics really care about statistics, they’d know that their prized statistics are actually affected by cheating and that they should have taken cheating into account when placing their bets. Per the Second Circuit: “one could even argue that factoring in potential cheating or rules violations that could occur during the game itself could implicate a degree of additional skill by MLB DFS contest participants.”

For it’s One, Two, Three Strikes, You’re Out

Out, they were. The Second Circuit concluded:

Thus, any statements that can fairly be attributed to defendants about the fantasy baseball contests being “games of skill” or “contests of skill” are not rendered plausibly false due to the existence of rules violations, including electronic sign-stealing.

At the Old Ball Game.

What has the Second Circuit taught us about fantasy sports? Baseball is itself a game of skill – played by well-trained and well-conditioned athletes, but whether sitting on your couch, eating pretzels and picking outcomes based on another’s performance is a “game of skill” is just a matter of opinion. And don’t go crying to the courts if you have gripes about how the real game is played.

I must give a shout out to my fellow Yankees fan and partner, Frank Silvestri, for passing this decision my way.

Please contact Robert Laplaca to answer any questions or provide additional information about this post.

Contact Verrill at (855) 307 0700