PrizePicks lawyer takes swipe at FanDuel in front of Colorado regulators

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Stakeholders on both sides of the fantasy sports debate voiced their thoughts on new proposed regulations to the Colorado Division of Gaming on Monday. The latest draft of rules seem to expressly prohibit fantasy vs. the house, drawing the criticism of operators like PrizePicks and OwnersBox.

FanDuel’s Director of Regulatory Affairs Andrew Winchell opened the rulemaking meeting by thanking the regulators for the more explicit language involving fantasy vs the house but also expressed concern the language left the door open about what is and is not allowed.

“Is this interpreted to mean that all single-player fantasy contests against the operator are prohibited? Or only a specific subdivision of contests or specific types of contests that are played against the fantasy contest provider are being prohibited?”

Josh Kirschner, a lawyer appearing on behalf of PrizePicks, agreed with Winchell about the lack of clarity but not before getting in a swipe at the operator and the recent revelation that the company pressured Wyoming regulators to take action against PrizePicks and Underdog Fantasy.

“As we’ve recently learned in an LSR article on Wyoming, FanDuel might not necessarily concern itself with what the rules are, since they seem to get their way no matter what,” he quipped.

Kirschner went on to express concern with how these rules were being promulgated and questioned the legality of the approach, as the regulators in his estimation are defining fantasy against sports betting law as opposed to the 2016 Colorado fantasy laws that defined the games as follows:

The act defines a ‘fantasy contest’ as a game or contest in which:

  • The value of all prizes offered to winning participants is made known to the participants in advance of the contest; and
  • Winning outcomes:
  • Reflect the relative knowledge and skill of the participants;
  • Are determined predominantly by accumulated statistical results of the performance of athletes in fully completed sporting events; and
  • Are not based on randomized or historical events or on the score, point spread, or any performance of any single actual sports team or combination of such teams or solely on any single performance of an individual athlete in any single actual sporting event.

“It appears to look as if the rulemaking process looked at [the sports betting law] for sports wagering and tried to draw a fence around that instead of applying proper administrative procedure and making rules pursuant to the statute in [The Fantasy Contests Act],” he argued.

He also questioned the proposed regulations that player performance must be accumulated together as opposed to evaluated separately, as “inappropriate” and a potential violation of state law given that regulators are now imposing new definitions of fantasy beyond the scope of the law.

Kirschner also asked what might happen to operators who find their businesses affected by these new regulations.

“The question becomes for a current licensee offering games that were previously in line and licensed by the division, but might not fit into these new rules, what procedural due process will be afforded to those folks? What will they be allowed to offer contests until their current license expired? Will there be some sort of hearing and review period? Will there be some sort of cooperative process?”

Despite dozens of registered commenters attending the meeting, only a handful spoke. However, the Colorado Division of Gaming will continue to receive written feedback for the next week. The gaming commission is set to meet next on Nov. 16.