Bill Burr gives DFS Advocates a Wake Up Call

As I stated in my last column: “DFS is a game of skill and uses a sweepstakes format, so it’s not gambling. Daily Fantasy Sports is a game of skill and is therefore not gambling.”

These are the arguments DFS advocates continually cite as they try to stay within the bounds of the Fantasy Sports exemption in UIGEA, and at the same time try to keep state legislatures from prohibiting DFS – at least five states already have laws on the books that seemingly cover DFS.

Comedian Bill Burr certainly thinks these arguments are ridiculous, as he candidly explained on his Monday Morning Podcast after DraftKings sent him a letter asking him to not refer to their website as gambling, something Burr mocked, derided, and laughed off.

Start at the 26 minute mark and stick around until he reads the DraftKings advertisement at 31 minutes.

Burr doesn’t take DraftKings’ explanation lying down, and essentially ridicules this opinion for a good five minutes. But at the same time he offers up a better argument DFS could use to win over the hearts and minds of the general public – yes we’re gambling but we’ve created a new exciting way to gamble.

DraftKings is likely freaking out about this, but to me this type of freakout (and attempts to write the narrative) shows how tenuous the DFS industry’s footing as a “legal” contest is at this point.

The point of Burr’s rant against daily fantasy sports at DraftKings is people know gambling when they see it, and DFS looks, smells, sounds, feels, and tastes like gambling to a majority of people – even 42% of DFS players consider it gambling. I wouldn’t be surprised if 75% of non-DFS players (like Burr) considered it to be gambling.

So even if you’re right (which is a debatable point in and of itself) it’s too nuanced to make. And it’s not just laymen making this point.

Advantage doesn’t take the gamble out of gambling

The big problem with this argument is a game of skill can still be gambling, which is why I’m of the opinion that the issue with the DFS is not gambling argument is it’s false by omission. It’s too nuanced a discussion to be reduced to generalities.

For instance, DFS is legal in the U.S.!………. Except in Arizona, Iowa, Louisiana, Montana, and Washington.

The truth is, DFS doesn’t inhabit some mythical space between gambling and chess (neither does Fantasy Sports, poker, or any other game of skill), DFS contests that charge an entry fee and have payouts are most certainly gambling and in some states it seems to be a legal form of gambling, in others it’s not, and in most states its legality is still unclear.

When you put up something of value for the chance to win something of equal or greater value you’re gambling. This isn’t to say DFS is the same thing as roulette. The skill element simply makes these games advantage gambling.

Yes, DFS is a beatable game, but the idea of the DFS industry using technicalities and semantics in what seems like an effort to confuse lawmakers and others is somewhat troubling.  The ability for a small percentage of players to beat the game doesn’t make DFS something other than gambling, and it shows an amount of hubris rarely seen.

As Burr said on his podcast, just own it.

No matter what, there are only going be 5-10% of players who can win in the long run (a guesstimate on my part), for the other 90% of players, poker and DFS are most certainly gambling. And as players become more skillful the same percentage of players will always win.

It’s an argument poker advocates have been employing for years, and an argument that comes off as condescending. Even if you are technically correct, you lose support making an argument of this nature.

Poker isn’t roulette or a slot machine, but it’s played in a casino and regulated by gaming commissions, so disputing the game’s designation as gambling falls on deaf ears. DFS is now learning this lesson, and continuing to take a hard line stance against calling DFS gambling (such as the letter sent to Bill Burr) will likely have the opposite effect DFS companies are hoping for. The AGA and Nevada regulators are becoming more outspoken regarding DFS, and are using the “we’re not gambling” argument to make their case that DFS is in fact gambling.

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