The No-Fantasy League: Why The National Football League Should Ban Its Players From Managing Personal Fantasy Football Teams

DePaul Journal of Sports Law DePaul Journal of Sports Law

Volume 11

Issue 1

Spring 2015

Article 4

The No-Fantasy League: Why The National Football League The No-Fantasy League: Why The National Football League

Should Ban Its Players From Managing Personal Fantasy Football Should Ban Its Players From Managing Personal Fantasy Football

Teams Teams

Michael B. Engle

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The No-Fantasy League: Why The National Football League Should Ban Its Players From

Managing Personal Fantasy Football Teams

, 11 DePaul J. Sports L. & Contemp. Probs. (2016)

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THE NO-FANTASY LEAGUE: WHY THE NATIONAL

FOOTBALL LEAGUE SHOULD BAN ITS PLAYERS

FROM MANAGING PERSONAL FANTASY

FOOTBALL TEAMS

Michael B. Engle*

NTRODUCTION

On Thursday, September 25, 2014, the visiting New York Giants of

the National Football League (hereinafter “NFL”) defeated the Wash-

ington Redskins by a score of 45-14.

The Week 4 victory was the

second of the season for the Giants, and also represented a “coming-

out party” for the then-obscure Giants tight end Larry Donnell.

Donnell was credited with seven catches and seventy-seven receiving

yards, while catching three touchdowns passes from quarterback Eli

Manning.

This marked the first time any Giants tight end had scored

three touchdowns in a game since Joe Walton in 1962.

Meanwhile, at some interval before Thursday the 25th, Larry Don-

nell was required to finalize his fantasy football roster for the upcom-

ing week.

Donnell had himself on his 2014 fantasy roster, and had

started himself the prior week, when the Giants played against the

Houston Texans.

In Week 4, however, he elected to bench himself,

instead choosing to start Vernon Davis of the San Francisco 49ers as

* Michael B. Engle is a JD/MBA candidate at the Maurice A. Deane School of Law and the

Frank G. Zarb School of Business at Hofstra University, where he anticipates graduating in

December 2015. Mr. Engle serves as the Technology Editor of the Hofstra Labor & Employment

Law Journal, where his Note on Nepalese slave labor in Qatar for construction on the 2022

FIFA Men’s World Cup will be published in Volume 32. Mr. Engle wishes to thank Professor

Johan S. Powell for his guidance and enthusiastic support on this article, as well as his family for

their unconditional love and understanding throughout the writing process.

1. Boxscore – Giants v Redskins – NFL,

NJ.

COM

, http://stats.nj.com/fb/boxscore.asp?game

code=20140925028&home=28&vis=19&final=true (last visited Nov. 26, 2014).

2. Jordan Raanan, Giants’ Larry Donnell lost fantasy football match because he benched him-

self,

NJ.

COM

(Oct. 1, 2014, 6:21 PM), http://www.nj.com/giants/index.ssf/2014/10/fantasy_football

_giants_te_larry_donnell_lost_because_he_benched_himself.html.

3. Id.

4. Dane Brugler, The unlikely NFL journey of Giants tight end Larry Donnell,

CBS S

PORTS

(Sept. 26, 2014, 5:07 PM), http://www.cbssports.com/nfl/draft/nfl-draft-scout/24725619/the-unlike

ly-nfl-journey-of-giants-tight-end-larry-donnell.

5. Raanan (Oct. 1, 2014), supra note 2.

6. Id.

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60 DEPAUL J. SPORTS L. & CONTEMP. PROBS. [Vol. 11:59

his tight end.

Davis had a mere two catches for eight yards.

In hind-

sight, Donnell would have won the week in his fantasy league if he

had started himself instead of Davis.

The following week, Donnell

started himself again and “laid a goose egg” against the Atlanta Fal-

cons (having failed to record a catch).

Donnell subsequently de-

cided to bench himself for the rest of the season.

Donnell’s decision—namely, never to start himself on his fantasy

team for the rest of the season—appears to be partially superstitious

and partially to make a “win-win” situation, in which he reasoned,

“I’ll bench myself in my fantasy [sic] and then everybody else will

win. . . . I’ll win on Sunday and everybody else will also win on Sun-

day.”

Even though Donnell may have minimized the risk of “dis-

tractions” to his locker room by shutting down his personal fantasy

storyline, it is this author’s opinion that Donnell’s experiences opened

a “can of worms” for the NFL. At the very least, this episode shone a

spotlight on a Pandora’s box that has been open for a considerable

amount of time. Donnell claims that he is a newcomer to fantasy foot-

ball, and that he is only playing “for fun and bragging rights.”

How-

ever, he quickly became aware of the other—more high-stakes—side

of fantasy football, involving extensive research and big money.

Fantasy football has burgeoned from humble beginnings in individ-

uals’ basements in disparate geographic areas into a $40 billion mar-

ket,

thanks in part to the Internet’s role in facilitating fantasy

football league management. By its very nature, fantasy football has

the potential to yield esoteric short-term changes in rooting interests

that are subject to change on a week-by-week basis. A fantasy foot-

ball player might be a fan of the Atlanta Falcons, but for one week, he

might need New Orleans Saints quarterback Drew Brees to have a

“big game” with gaudy passing statistics, if (a) said Falcons fan had

7. Id.

8. Id.

9. Id.

10. Charles Curtis, Giants’ Larry Donnell started himself in fantasy football this week (but said

‘LOL’ about zero points),

NJ.

COM

(Oct. 5, 2014, 6:00 PM), http://www.nj.com/giants/index.ssf/

2014/10/giants_larry_donnell_started_himself_in_fantasy_football_this_week_but_said_lol_ab

out_zero_points.html.

11. Jordan Raanan, Giants TE Larry Donnell benches himself in fantasy football for remainder

of the season,

NJ.

COM

(Oct. 9, 2014, 8:34 AM), http://www.nj.com/giants/index.ssf/2014/10/giants_

te_larry_donnell_benches_himself_in_fantasy_football_for_remainder_of_the_season.html.

12. Id.

13. Id.

14. Id. (“People are that in-depth? That serious? . . . Man, I’m just having fun with it.”)

15. Brian Goff, The $70 Billion Fantasy Football Market,

ORBES

(Aug. 20, 2013, 10:01 AM),

http://www.forbes.com/sites/briangoff/2013/08/20/the-70-billion-fantasy-football-market/.

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2015] THE NO-FANTASY LEAGUE 61

Drew Brees on his fantasy team, or if (b) the Saints were going against

the Carolina Panthers in a NFL game, while the Falcons fan’s fantasy

opponent of the week has chosen to start the Panthers defense.

To some people who decline participation in fantasy leagues, the

mere thought of having to root for players on other teams out of per-

sonal self-interest is an anathema. On the other hand, proponents of

fantasy football claim that it is minimally different from rooting for an

archrival to beat a team that one’s own team is trying to overcome in

the standings, in order to qualify for the playoffs. While NFL execu-

tives might be eager to champion fantasy football as a way for football

fans to further engage with the NFL (why only follow one team from

afar, when you can have control over your team and an excuse to

watch and follow all thirty-two NFL franchises?), they should be

aware of a devilish connection to gambling. After all, if Larry Don-

nell can operate a fantasy team, so can anybody in the NFL: perhaps a

defensive lineman for the San Diego Chargers might miss a tackle on

Kansas City Chiefs tailback Jamaal Charles, so that he might pick up a

few extra yards before a teammate tackles him instead; or a special

teams player on the Tennessee Titans might not want to block field

goal kicks by Indianapolis Colts kicker Adam Vinatieri; or a retired

player, employed by his former NFL team with a sinecure, might stock

his team with old personal friends and young players from his col-

legiate alma mater, his high school alma mater, or his home region.

There has been considerable debate as to whether fantasy football

is a game of chance or of skill, but regardless, people employed by the

NFL or a member team should be enjoined from operating fantasy

football teams. In Part [A], I will chart the history of fantasy football.

In Part [B] et seq., I will recount instances where active participants in

professional sports leagues were found to have gambled on results in

their direct control, with all the respective negative aftermaths, includ-

ing the Black Sox Scandal, the Pete Rose scandal, point shaving scan-

dals in NCAA basketball, and a results manipulation scandal by NBA

referee Tim Donaghy. In addition to these clear-cut examples of gam-

bling, I will also compare this potential fantasy football fiasco to what

is probably its closest comparable, as a “socially more acceptable”

form of gambling: March Madness pools (pertaining to contestants’

accuracy in predicting outcomes in an elimination bracket involving

more than sixty-three games, culminating in the National Collegiate

Athletic Association (hereinafter “NCAA”) men’s basketball champi-

onship), and one such scandal implicating Rick Neuheisel, who was

then employed by the University of Washington, as the head coach of

its football team.

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62 DEPAUL J. SPORTS L. & CONTEMP. PROBS. [Vol. 11:59

In Part [C], I will highlight arguments on both sides as how to clas-

sify fantasy football, i.e.: in support of fantasy football as a game of

chance, or as a game of skill, and discuss and critique subsequent judi-

cial rulings, congressional lawmaking, and effects on public policy. Fi-

nally, Part [D] will conclude this note with an analysis of relevant

statutory language from the NFL’s collective bargaining agreement.

At this point, I will ascertain whether or not NFL Commissioner

Roger Goodell (a) has the authority under the CBA to immediately

bar employees from having fantasy teams, or (b) must wait until the

expiration of the current CBA to promulgate and enforce such a rule,

and then (c) whether such a ban on fantasy football would be benefi-

cial to the NFL, (d) whether such a ban is likely, and (e) discuss result-

ing residual consequences and possible compromise solutions.

[A]. H

ISTORY OF

ANTASY

OOTBALL

Fantasy football is, surprisingly, almost as old as modern football.

Wilfred “Bill the Gill” Winkenbach, an Oakland, CA-area business-

man and a limited partner in the Oakland Raiders (then of the Ameri-

can Football League, before the advent of the Super Bowl and the

AFL-NFL merger), spearheaded the oldest known fantasy league.

In 1962, while in a New York hotel room, in the midst of an east coast,

cross-country Raiders road trip, Winkenbach, Raiders’ public rela-

tions director Bill Tunnel, and Oakland Tribune reporter Scotty Stir-

ling drafted rules that would lay the foundation for modern fantasy

football.

These rules were the genesis of the Greater Oakland Pro-

fessional Pigskin Prognosticators League (hereinafter “GOPPPL”).

The GOPPPL’s first draft took place in August 1963, in the rec room

of Winkenbach’s home, among eight charter league members.

In or-

der to simplify scoring, which was done manually by consulting the

local sports section of the newspaper, only touchdowns were counted

in scoring.

This league is still active and, as per tradition, it is still

“touchdowns only,” despite the extended opportunities available to-

day to award points for other milestones and the ease of computerized

calculations.

16. Patrick Hruby, The Founding Fathers of Fantasy,

PORTS ON

ARTH

(Dec. 2, 2013), http://

www.sportsonearth.com/article/64244480/.

17. Id.

18. Id.

19. Id.

20. Id.

21. Id.

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2015] THE NO-FANTASY LEAGUE 63

Fantasy football was slow to spread, but Andy Mousalimas facili-

tated the first spinoffs in 1969.

Mousalimas, who was an original

creator of the GOPPPL and participant in the inaugural draft, brought

fantasy football to King’s X, his sports bar.

Mousalimas oversaw ad-

ditional leagues that would meet at the bar; as trivia teams congre-

gated at the bar for the trivia circuit, the concept of fantasy football

became more familiar outside Oakland, even though due to the time-

consuming need to hand-score from newspaper results, it was slow to

gain popularity.

However, in 1981, a new—and now long-stand-

ing—league became established in Spokane, WA.

As a tribute to its

place of birth, a now-defunct pizza parlor known as Maria’s, the

league is known as “The League Formerly Known as Maria’s.”

the GOPPPL, it was “touchdowns only” to facilitate manual scoring;

now, Maria’s League allows for a limited number of “bonus points”

for milestones yardages, e.g.: for every 100 yards a quarterback

throws, for every 100 yards a running back rushes, or for every 50

yards a wide receiver collects in catches, but it remains “mostly touch-

downs” as a tribute to its heritage.

In 1985, Jim Boullion and Lee Fanshaw, of Madison, WI, estab-

lished one of the most ambitious fantasy football leagues of its time,

with four distinct categories for scoring.

Boullion, Fanshaw, and

eight original owners (of which six still participate) used the Madison

Capitol as the league’s meeting place, as most of the league members

were employees of the Wisconsin State Legislature.

The Capital

Football League is one of the earliest, and most long-standing, exam-

ples of a rotisserie league.

In rotisserie leagues, instead of keeping

the points earned as a score, players are assigned scores for relative

placement.

In other words, there is no difference between finishing

one point ahead of the runner-up or 100 points ahead—the winner

earns a set number of points for winning.

22. Id.

23. See Chip Johnson, The sad passing of King’s X,

SFG

ATE

(Sept. 16, 2005, 4:00 AM), http://

www.sfgate.com/bayarea/johnson/article/The-sad-passing-of-King-s-X-2608454.php.

24. Hruby, supra note 16.

25. All About Fantasy Football,

UYS

ALKING

ANTASY

OOTBALL

, http://www.guystalking

fantasyfootball.com/GTFF/AAFF.html (last visited Jan. 17, 2015).

26. Id.

27. Id.

28. Fantasy football: Information from Answers.com,

NSWERS

COM

, http://www.answers.com/

topic/fantasy-football-american (last visited Jan. 26, 2015).

29. Id.

30. Id.

31. Mike Harmon, Fantasy Baseball 101: How to Play ROTO,

PORTS

(June 6, 2014)

http://www.foxsports.com/fantasy/baseball/story/Harmon-fantasy-baseball-rotisserie-tips-012110.

32.

NSWERS

COM

, supra note 28.

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64 DEPAUL J. SPORTS L. & CONTEMP. PROBS. [Vol. 11:59

In addition to drafting players and having a head-to-head round

robin schedule among members (awarding six points to a head-to-

head winner, and awarding three points to each player in the case of a

tie), the league awarded points based on team statistics, such as pass-

ing yards, rushing yards, receiving yards, receptions, total yards from

scrimmage, and total scoring.

For the team categories, the Capital

Football League awarded points in descending rank order, from

twenty-five for the leader to zero for the last-place finisher.

The

Capital Football League also recognized individual categories: for in-

dividual passing yards, passing touchdowns, rushing yards, receiving

yards, receptions, and kicking points.

The fantasy team owner who

had the NFL category leader on his team earned five rotisserie points,

the one who had the category runner-up garnered three, and the one

who had the category second runner-up received one.

Finally, the

Capital Football League created a “playoff” section at the end of the

regular season, with an extra bonus to the winner of the playoffs.

this league, the “winner” is the one who has the most points after all

four categories are tabulated.

Modern fantasy football was facilitated by improvements in tech-

nology, starting in 1989.

Promoters Robert Barbiere and Brad

Wendkos facilitated “Pigskin Playoff,” a de facto-national fantasy

league that was picked up by several major newspapers and allowed

more than 100,000 players to compete against each other, employing

touchtone phone service to make trades and otherwise interact.

Fi-

nally, in 1997, CBS launched the beta version of the first free and

publicly available fantasy football website.

All other major sports

media websites followed suit within three years, and in 2010, the NFL

itself launched its own site, “NFL.com Fantasy Football.”

To this day, fantasy football is the NFL’s most important marketing

tool, with an estimated nineteen million online participants between

33. Id.

34. Id.

35. Id.

36. Id.

37. Id.

38. Id.

39. All About Fantasy Football,

UYS

ALKING

ANTASY

OOTBALL

, http://www.guystalking

fantasyfootball.com/GTFF/AAFF.html (last visited Jan. 17, 2015).

40. Id.

41. Id.

42. Id.

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2015] THE NO-FANTASY LEAGUE 65

public and private leagues.

As Mr. Goff notes in his Forbes article,

fantasy football could have been incalculably more lucrative for the

NFL, as well as the members of its Players’ Association (hereinafter,

“NFLPA”), i.e.: the players, if they were able to claim the rights to the

statistics.

As it stands, the NFL cannot have a trademark claim to,

for example, Marshawn Lynch’s 160-yard game with two touchdowns

for the Seattle Seahawks, because this is considered to be a news

event.

On the other hand, the ability to capitalize on fantasy foot-

ball at all was hardly a foregone conclusion until recently. However,

the more appropriate query is to ascertain whether or not the mem-

bers of the NFLPA should be allowed to participate in fantasy

football.

[B]. G

AMBLING ON

PORT AND IN

PORT

[B-1]. The “Black Sox Scandal:” Eight Major Leaguers, Five

Losses, and One New “Mountain” of a Commissioner

It is widely considered a straightforward tenet in modern sports that

players should not be allowed to place bets on games in their league.

Gambling schemes can impugn the very integrity of the games, as fans

want to know that the athletes are performing at their peaks in order

to win and to earn their results fairly. Indeed, a “scripted” game

where players aim to achieve a predetermined result would be unsatis-

factory, and fans could easily lose interest when conclusions may be

foregone. One of the first, and most famous, instances of match fixing

allegedly involved—but irreversibly implicated—eight members of

the 1919 pennant-winning Chicago White Sox, in the infamous Black

Sox Scandal (later to be immortalized in the book and motion picture,

Eight Men Out).

This era of baseball was governed by the longstanding and infamous

(though now severely limited) “reserve clause.”

During that era,

owners of Major League Baseball (hereinafter “MLB”) teams owned

43. Jenna Hanington, 5 Things Fantasy Football Can Teach Us about B2B Marketing,

ARDOT

(August 26, 2013), http://www.pardot.com/ideas/5-things-fantasy-football-can-teach-us-about-

b2b-marketing/.

44. Goff, supra note 15.

45. Id.; CBS Interactive v. Nat’l Football League Players Ass’n, 259 F.R.D. 398, 419 (D. Minn.

2009), citing C.B.C. Distribution and Mktg., Inc. v. Major League Baseball Advanced Media,

L.P., 505 F.3d 818 (8th Cir. 2007).

46. Douglas Linder, An Account of the 1919 Chicago Black Sox Scandal and 1921 Trial,

NI-

VERSITY OF

ISSOURI

-K

ANSAS

ITY

CHOOL OF

, http://law2.umkc.edu/faculty/projects/ftri

als/blacksox/blacksoxaccount.html (last updated 2010).

47. Id.

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66 DEPAUL J. SPORTS L. & CONTEMP. PROBS. [Vol. 11:59

their players’ rights in perpetuity.

This virtually eliminated the play-

ers’ ability to negotiate their contracts, and absolutely eliminated any

rationale for an owner to negotiate a contract lasting longer than the

upcoming baseball season.

If a player were to desire to switch

teams, he could request a trade or threaten to retire unless the owner

should make a trade or grant a release to the player.

In the

meantime, the owners were never obligated to grant these accommo-

dations, and they had ultimate leverage against the players: if a player

refused the team’s contract, that player would be enjoined from play-

ing professional baseball with any other team.

Accordingly, Chicago White Sox owner Charles Comiskey paid his

left fielder, “Shoeless Joe” Jackson, and his third baseman, Buck

Weaver—two of the premier ballplayers in all of MLB at that time—a

paltry $6,000 per season

(equivalent to about $82,500 USD in

2014).

Comiskey acquired a reputation as an impecunious tyrant,

even though his team had the highest payroll in 1919.

Starting in

1917, White Sox pitcher Eddie Cicotte had an incentive in his con-

tract, whereby he would earn a $10,000 bonus for winning thirty

games in a season.

Cicotte came close twice, having won twenty-

eight in 1917 and twenty-nine in 1919;

however, Comiskey allegedly

ordered that Cicotte be benched “in order to rest for the playoffs,”

and so Comiskey could avoid having to pay Cicotte the bonus.

Co-

miskey is also said to have routinely slashed the laundry budget, mak-

ing the players wait longer periods of time in between the laundering

of their uniforms.

(This is the origin of the sobriquet “Black Sox,”

seeing that the White Sox garb would rarely look pristine.)

Further-

more, in the motion picture, as the White Sox return to their locker

room after having clinched the American League pennant, the players

48. Id.

49. Id.

50. Id.

51. Id.

52. Id.

53.

CPI I

NFLATION

ALCULATOR

, http://data.bls.gov/cgi-bin/cpicalc.pl?cost1=6000&year1=19

19&year2=2014 (last visited Nov. 26, 2014).

54. Linder, supra note 44.

55. Id.

56. Eddie Cicotte Statistics and History,

ASEBALL

EFERENCE

, http://www.baseball-reference

.com/players/c/cicoted01.shtml?redir (last visited Nov. 27, 2014).

57. Linder, supra note 44.

58. Id.

59. Id.

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2015] THE NO-FANTASY LEAGUE 67

discover bottles of champagne, as gifts to the players.

The bottles

turn out to be flat, and the players learn that this not-so-bubbly cham-

pagne represents their bonuses for advancing to the World Series.

With a palpable incentive to make easy money, and with some play-

ers in dire financial straits (Cicotte had recently purchased a Michigan

farm that was saddled with high mortgage payments), a faction of the

White Sox set the wheels of their scheme in motion.

The first base-

man, Chick Gandil, is widely credited as having a large role in “the

fix,” if not that of the players’ ringleader in the conspiracy.

Gandil

made contact with an acquaintance, professional gambler “Sport” Sul-

livan, and initially suggested that for $80,000, Gandil could incorpo-

rate some of his teammates into “the fix,” helping to throw the World

Series in favor of the Cincinnati Reds—the winners of the 1919 Na-

tional League pennant.

Outfielder Oscar “Happy” Felsch and

Weaver came on board relatively quickly.

Cicotte was more reluc-

tant to “sell out,” but he eventually agreed to do it “for $10,000—

before the Series begins,” in order to support his family and pay the

mortgage.

Shortstop “Swede” Risberg, utility infielder Fred McMullin, fellow

starting pitcher Claude “Lefty” Williams, and Jackson (the best hitter

on the team) rounded out the “Eight Men Out.”

Details as to the

exact payment arrangement are murky, but it is believed that instead

of having any upfront payment, the players were to be collectively

paid $20,000 per World Series loss (five losses in a best-of-nine World

Series would ensure a Cincinnati championship and full payment, now

of $100,000, to the Eight Men Out), while the starting pitchers (Ci-

cotte and Williams) each resolved to throw their first games.

(Histo-

rian Eliot Asinof, in his book Eight Men Out, claimed that because the

gamblers could not place odds more favorable than “even money,”

they could not make any advance payments to the White Sox play-

ers.)

Finally, on October 1, 1919, the World Series began in Chicago,

60.

IGHT

(Orion Pictures 1988); Movieclips, Eight Men Out (2/12) Movie CLIP —

The Players’ Bonus (1988) HD,

UBE

(July 16, 2013), https://www.youtube.com/watch?v=

UH5b4os7ycY.

61. Id.

62. Linder, supra note 44.

63. Id.

64. Id.

65. Id.

66. Id.

67. Id.

68. Id.

69. Id.

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68 DEPAUL J. SPORTS L. & CONTEMP. PROBS. [Vol. 11:59

and with a hit batsman to start the game, the gamblers were assured

that the fix was on.

The transactions between the gamblers and Gandil were hardly

smooth.

Cicotte threw Game 1 by a score of 9-1, and Williams lost

his Game 2 by a score of 4-2.

In both games, the respective pitchers

unraveled in the fourth inning.

In Game 1, Cicotte was unable to

turn an otherwise-routine double play, extending the inning for the

bottom of the order to blow the game open, culminating in Cincinnati

pitcher Dutch Reuther hitting a two-run triple to left field.

In Game

2, Williams (who was famous for immaculate control) managed to

walk three batters, who would all round the bases to score for Cincin-

nati.

After Game 2, Gandil realized that the gamblers had not been

paying all the money as promised, so the White Sox double-crossed

the gamblers in Game 3, and Gandil demanded a $20,000 payment

before Game 4, or else the players would withdraw the fix.

The

players were placated for Game 4, but were once again stiffed after a

Game 5 loss.

The White Sox managed to win Games 6 and 7: at this

point, Cincinnati was leading by a count of four games to three, and

the gamblers had no desire to see the Series go the distance.

Game 8, the White Sox wheels finally came off: Lefty Williams threw

merely fifteen pitches, which yielded four hits and three runs for Cin-

cinnati, en route to a Game 8 win by a score of 10-5, and thus clinch-

ing the 1919 World Series.

On December 15, 1919, Chicago sportswriter Hugh Fullerton pub-

lished a story in the New York World, entitled “Is Big League Base-

ball Being Run for Gamblers, with Ballplayers in the Deal?”

In his

piece, he demanded that MLB rid itself of its gambling problem, and

suggested that federal judge Kenesaw Mountain Landis oversee such

an investigation.

This inquiry reached its conclusion at the end of

the 1920 baseball season: it revealed testimony that New York Giants

pitcher Rube Benton saw a damning telegram from “Sleepy” Burns

(one of the gamblers in the orchestration of the 1919 World Series) to

70. Id.

71. Id.

72. Id.

73. Id.

74. Id.

75. Id.

76. Id.

77. Id.

78. Id.

79. Id.

80. Id.

81. Id.

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2015] THE NO-FANTASY LEAGUE 69

a Giants teammate, stating that the White Sox were going to lose the

Series, and it also produced a story in the Philadelphia North Ameri-

can, in which gambler Billy Maharg divulged some juicy details.

Ac-

cordingly, Comiskey suspended the Eight Men Out indefinitely.

The players and gamblers were all indicted on October 22, 1920,

during a transition period in which Cook County Attorney Maclay

Horne was to be replaced by the newly elected Robert Crowe.

this transition, Horne’s secretary, George Kenney, mysteriously

walked out with confessions and waivers of immunity for Cicotte,

Jackson, and Williams.

This proved to handcuff the prosecution, as

all evidence from the confessions (announced to have been missing in

March 1921) would be suppressed.

Despite these obstacles, the trial,

State of Illinois v. Eddie Cicotte et al. commenced on June 27, 1921,

with Judge Hugo Friend presiding.

The players faced charges of (1) conspiring to defraud the public,

(2) conspiring to defraud Sox pitcher Ray Schalk, (3) conspiring to

commit a confidence game, (4) conspiring to injure the business of the

American League, and (5) conspiring to injure the business of Charles

Comiskey.

Jury selection comprised of screening 600 prospective ju-

rors who were quizzed on their White Sox fandom, their betting hab-

its, and their views on baseball.

One prospective juror, William

Kiefer, was struck specifically for being a Cubs fan.

On July 18, the

prosecution delivered its opening statement; the defense closed on the

29th.

Judge Friend then charged the jury, instructing them that to

return a guilty verdict, they must find the players conspired “to de-

fraud the public and others, and not merely throw ballgames.”

After

less than three hours of deliberation, the jury acquitted all of the

defendants.

Despite the eight players’ legal innocence, Landis—now installed

by the owners as the first Commissioner of MLB—refused to lift their

bans, stating that

82. Id.

83. Id.

84. Id.

85. Id.

86. Id.

87. Id.

88. Id.

89. Id.

90. Id.

91. Id.

92. Id.

93. Id.

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70 DEPAUL J. SPORTS L. & CONTEMP. PROBS. [Vol. 11:59

[r]egardless of the verdict of juries, no player who throws a ball-

game, no player that undertakes or promises to throw a ballgame,

no player that sits in conference with a bunch of crooked players

and gamblers where the ways and means of throwing a game are

discussed and does not promptly tell his club about it, will ever play

professional baseball.

This precedent is not legally unsound, for MLB was (and is) a private

actor that is not necessarily bound by the government’s failure to con-

vict, or any other provision under the United States Constitution.

However, because Landis was the first ever commissioner of a profes-

sional sports league, his precedent has enabled future commissioners

to wield immense power within their sports.

[B-2]. Post-“Black Sox” Gambling Episodes, and Respective

Aftermaths

[B-2-a]. Pete Rose

After Landis’s decisive actions against the “Eight Men Out” for

their roles in the Black Sox Scandal, sports leagues have consistently

taken decisive actions against gambling, as even mere allegations of

impropriety are damaging towards the legitimacy of the games that

the leagues sanction. Landis also established a now-traditional au-

thority for commissioners to punish athletes beyond traditional juris-

prudence, in that he was able to ban eight players on behavior for

which they were all deemed “not guilty” by a competent court of law

that had valid jurisdiction over the case. One of the highest-profile

cases of sports gambling centered on longtime Major League Baseball

player Pete Rose.

Rose had a long and successful playing career from 1963 to 1986,

during which he mostly, and most memorably, played for the Cincin-

nati Reds.

(From 1979 to 1983, Rose was a member of the Philadel-

phia Phillies, and he played for the Montreal Expos in 1984 before he

was traded back to the Reds on August 16 of that year.)

Rose’s ca-

reer accolades as a player are numerous, including the 1963 National

League Rookie of the Year Award,

three National League “batting

titles” for the highest batting average,

the 1973 National League

94. Id.

95. Pete Rose Statistics and History,

ASEBALL

-R

EFERENCE

COM

, http://www.baseball-refer

ence.com/players/r/rosepe01.shtml (last visited Jan. 16, 2015).

96. Id.

97. Id. (see “Standard Batting” table, “1963” row, “Awards” column).

98. Id. (see “Standard Batting” table, “BA” row, and note that values for 1968, 1969, and 1973

are all bolded to denote the year’s league-high value).

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2015] THE NO-FANTASY LEAGUE 71

Most Valuable Player (“MVP”) award,

the 1975 World Series MVP

award,

100

two Gold Glove awards for fielding excellence,

101

seventeen

selections to play in the annual All-Star Game,

102

three World Series

championships,

103

and the record for the most base hits in a MLB ca-

reer, with 4,256 hits.

104

In his second stint with the Reds, Rose actu-

ally served as a player-manager until his official retirement as a

player,

105

after which he remained manager of the Reds until his ban-

ishment from MLB.

106

Rose had long been known to be an avid gambler, and was often

seen at racetracks to bet on horse races.

107

If that were to have been

the extent of Rose’s gambling activity, then it is debatable as to

whether or not Rose—a hometown hero of Cincinnati, a legendary

figure in MLB, and an otherwise-surefire Hall of Famer—would have

been disciplined by Commissioner A. Bartlett Giamatti. However, in

1989, Giamatti’s hand was forced, as a result of mountains of evidence

linking Rose to gambling on MLB.

108

MLB found countless instances

of telephone calls placed from Rose to known bookies, as well as bet-

ting slips seized by the IRS (with Rose’s handwriting on them) re-

vealing that Rose bet up to $16,000 per day on games as early as

1987.

109

This evidence, along with depositions, documents, reports,

and transcripts, was included in a 225-page report (“the Dowd re-

port”) compiled by investigator John Dowd to Giamatti, which con-

cluded that Rose gambled on MLB while under contract with MLB

via the Reds.

110

With this report in hand, Giamatti exercised his authority, as Com-

missioner, to banish Rose for life. According to Giamatti, “[t]here

had not been such grave allegations since the time of Landis.”

111

99. Id. (see “Standard Batting” table, “1973” row, “Awards” column).

100. Id. (see “Postseason Batting” table, second “1975” row (with opponent Boston Red Sox

[BOS]), and note the “MVP” inscription).

101. Id. (see “Standard Batting” table, “1969-70” rows, “Awards” column).

102. Id. (see “Appearances on Leader Boards, Awards, and Honors” table, “All-Star Games”

cell).

103. Id. (see “Postseason Batting” table, and note the rings next to the years 1975, 1976, and

1980).

104. Id.

105. Id. (see “Salaries” table, and note “Player-manager” notation for years 1985 and 1986).

106. Pete Rose Managerial Record,

ASEBALL

-R

EFERENCE

COM

, http://www.baseball-refer

ence.com/managers/rosepe01.shtml (last visited Jan. 16, 2015).

107. Rick Weinberg, ESPN 25 - 5: Pete Rose banned from baseball,

ESPN.

COM

, http://sports

.espn.go.com/espn/espn25/story?page=moments/5 (last visited Nov. 27, 2014).

108. Id.

109. Id.

110. Id.

111. Id.

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72 DEPAUL J. SPORTS L. & CONTEMP. PROBS. [Vol. 11:59

the evening of August 23, 1989 (before a news conference the follow-

ing morning), Rose signed a document agreeing to a lifetime ban

while maintaining the opportunity to apply for reinstatement in the

future, despite neither confirming nor denying the gambling allega-

tions against him.

112

Contrary to Giamatti’s address at that press con-

ference, that day was not “the sad end of a sorry episode.”

113

Initially,

Rose vocally denied the allegations that he gambled on baseball, in-

stead insisting that this punishment reflected mistakes that he made

by virtue of “betting on other things.”

114

Meanwhile, Giamatti stood

by his ruling and the Dowd report, by declaring that “[i]n absence of

evidence to the contrary . . . yes, I have concluded that he bet on

baseball,” including on Rose’s Reds.

115

Since his banishment, in 1991, the Baseball Writers Association of

America (“BBWAA”) codified a before-then-unwritten rule that

players on the “permanently ineligible” list shall not be eligible for

Hall of Fame consideration.

116

Beginning in 1992, Rose periodically

applied for reinstatement to Fay Vincent and Allan H. (Bud) Selig,

the two commissioners of MLB proceeding Giamatti, but to no avail

as of this writing.

117

In 2004, Rose published a memoir, My Prison

Without Bars,

118

in which he finally admitted to having bet on base-

ball. Today, Rose is still banned from baseball, even though this ban

has been occasionally lifted to accommodate his participation in a se-

lect handful of MLB events.

[B-2-b]. Basketball

[B-2-b-i]. NCAA Men’s Basketball

Whereas baseball can be easily manipulated through individual out-

comes, e.g.: “grooved” pitches and misplayed fielding situations, and

whereas football has a wide variety of prop bets on offense, defense,

and the overall game, basketball has been a focal point of gambling

scandals due to its high-scoring nature and a relatively easy ability to

112. Id.

113. fnd237, Pete Rose Banned from Major League Baseball – CNN Coverage,

UBE

(Oct. 27, 2011), https://www.youtube.com/watch?v=bm_baoPBC-c.

114. Weinberg, supra note 95.

115. Id.

116. Hall of Fame Election Requirements,

ASEBALL

RITERS

’ A

SSOCIATION OF

MERICA

http://bbwaa.com/hof-elec-req/ (last visited Jan. 16, 2015); see also Greg Noble, Will Pete Rose

ever get into the Hall of Fame?, WCPO (Aug. 26, 2014, 3:47 AM), http://www.wcpo.com/sports/

baseball/reds/will-pete-rose-ever-get-into-the-hall-of-fame.

117. Katherine LaGrave, 6 Things to Know About the Pete Rose Ban,

PORTS

HEAT

HEET

(Jan. 19, 2015), http://wallstcheatsheet.com/sports/6-things-to-know-about-the-pete-rose-ban

.html/?a=viewall.

118.

ETE

OSE WITH

ICK

ILL

, M

RISON

ITHOUT

ARS

(2004).

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2015] THE NO-FANTASY LEAGUE 73

manipulate the spread.

119

Numerous such scandals have implicated

National Collegiate Athletic Association (hereinafter “NCAA”)

men’s basketball teams. Of note, the 1950-51 CCNY scandal impli-

cated thirty-three players involved in point shaving among seven

schools: the City University of New York, City College (the 1950

champions of both the NCAA Tournament and the National Invita-

tional Tournament); New York University; Long Island University;

Manhattan College (all four of these within the New York City area);

Bradley University in Peoria, IL; the University of Toledo in Toledo,

OH; and the University of Kentucky in Lexington, KY.

120

The after-

math of the CCNY scandal was profound. The 1951 NCAA Tourna-

ment’s Most Outstanding Player, Bill Spivey, would never again play

for the University of Kentucky,

121

and he would later find himself

blackballed by the National Basketball Association (hereinafter

“NBA”), under President Maurice Podoloff.

122

A subsequent scandal

in 1961 was the “last straw” for Madison Square Garden, as the

NCAA Tournament would not return to New York City until 2014.

123

Later, members of the 1978-79 Boston College basketball team faced

RICO convictions for ensuring pre-planned outcomes (either allowing

the other team to cover the spread, or, as an alternate strategy to re-

duce suspicion, to affirmatively beat the spread) in exchange for cash

119. “The spread” (sometimes called “the line”) refers to an automatic handicap that bookies

place on each game, in order to provide more equitable odds between the teams by offsetting the

superior team’s inherent advantage. For example, if the Green Bay Packers (-13.5) were to play

against the Minnesota Vikings, the spread would be 13.5 points. In this example, bets in favor of

the favorite (the Packers), would have to “give” 13.5 points to the Vikings, and bets in favor of

the Vikings would “‘take’ the points.” In other words, even if the Packers were to win the actual

game, bettors would need the Packers to “cover the spread” by beating the Vikings by more than

13.5 points, in order to return winning bets. Fractional spreads are often used in order to elimi-

nate the possibility of “pushes,” which are ties according to sports books. When pushes occur,

bookies must refund all bets, yielding no winners or losers, and they also must bear the costs of

overhead. Accordingly, “point shaving,” or “manipulating the spread,” refers to deliberate ef-

forts to guarantee outcomes against the spread, with the reward of a financial benefit from the

enriched bookie.

120. Joe Goldstein, Explosion: 1951 scandals threaten college hoops,

ESPN C

LASSIC

(Nov. 19,

2003), http://espn.go.com/classic/s/basketball_scandals_explosion.html.

121. Bill Spivey Barred By Kentucky Board,

ITTSBURGH

OST

-G

AZETTE

, Mar. 3, 1952, at 23.

122. Podoloff Won’t Approve Contract For Bill Spivey,

LORENCE

IMES

, Sept. 1, 1960,

at 3; see also Frank Litsky, Bill Spivey, 66, Kentucky Star Implicated In Scandal of 1950’s,

ORK

IMES

(May 10, 1995), http://www.nytimes.com/1995/05/10/obituaries/bill-spivey-66-

kentucky-star-implicated-in-scandal-of-1950-s.html.

123. Seth Berkman, Remembering a Tournament ‘Final’ at the Garden,

ORK

IMES

(March 28, 2014), http://www.nytimes.com/2014/03/29/sports/ncaabasketball/billy-packer-

relives-last-madison-square-garden-tournament-game.html?_r=0.

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74 DEPAUL J. SPORTS L. & CONTEMP. PROBS. [Vol. 11:59

payments.

124

In addition, in 1994, Arizona State Sun Devil Isaac Bur-

ton, Jr. agreed to miss some free throws to manipulate the spread as a

favor to college teammate Stevin Smith, who had gambling debts of

his own.

125

They agreed to plead guilty to fixing four NCAA games,

pursuant to a 1997 plea deal.

126

NCAA basketball games have previously implicated not only

NCAA players, but other NCAA members as well. In another high-

profile episode, then-University of Washington head football coach

Rick Neuheisel was accused of wrongdoing through participation in a

“March Madness pool” with his co-workers.

127

March Madness pools

are not uncommon in workplaces in the United States: as a general

rule, they require “buy-ins” from workers to participate, and award

points for each correctly predicted winning team (with increasing

point values as the tournament progresses), ultimately awarding the

pot to the worker with the best bracket. In fact, bracket pools are so

ubiquitous in popular culture today, that investment mogul and Berk-

shire Hathaway chairman Warren Buffett hosted his own billion-dol-

lar bracket challenge in 2014.

128

Buffett would have paid one billion

dollars to a perfect prognosticator, but that did not happen; accord-

ingly, he claims that he wants to make a bracket challenge with easier

payouts in 2015.

129

The University of Washington football staff’s March Madness pools

required buy-ins ranging from $3 to $5 from 1999 to 2002 (Neuheisel’s

tenure as head coach at Washington), and Neuheisel relied on memo-

randa from compliance officer Dana Richardson that the pools were

permissible.

130

Despite these safeguards, Washington decided to fire

Neuheisel, citing allegations of ordering staff members to deny the

existence of other pools, and for denying his own participation when

he actually won more than $11,000 through pools—money he donated

124. Bob Hohler, When ‘Goodfellas’ collided with BC basketball,

OSTON

LOBE

(March

16, 2014), http://www.bostonglobe.com/sports/2014/03/15/and-goodfellas-sports-scandal-and-its-

lingering-toll/nvlXKiXCYsGpUqBUtg9BRN/story.html.

125. Associated Press, Point-Shaving Scandal Hits Arizona State,

NGELES

IMES

(Dec.

6, 1997), http://articles.latimes.com/1997/dec/06/sports/sp-61336.

126. Id.

127. Ted Miller, UW slaps 12 in betting scandal,

EATTLE

OST

-I

NTELLIGENCER

(Nov. 18,

2003, 10:00 PM), http://www.seattlepi.com/sports/article/UW-slaps-12-in-betting-scandal-1130110

.php.

128. Tim Keeney, Warren Buffett Says Next Year’s Billion-Dollar Bracket Will Be Easier to

Win,

LEACHER

EPORT

(Mar. 24, 2014), http://bleacherreport.com/articles/2004668-warren-

buffett-says-next-years-billion-dollar-bracket-will-be-easier-to-win.

129. Id.

130. Keeney, supra note 114.

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2015] THE NO-FANTASY LEAGUE 75

to area schools.

131

Later, the NCAA cleared Neuheisel of wrongdo-

ing, because the evidence could not support a finding that he inten-

tionally violated prohibitions against gambling; however, the league

placed the school on probation for a failure to sufficiently monitor the

football staff’s activities.

132

[B-2-b-ii]. Tim Donaghy and the NBA

More recently, the NBA was affected by an infamous event of its

own. This NBA scandal has so far been restricted to one man’s ac-

tions: former NBA referee Tim Donaghy. As a thirteen-year veteran

of the NBA, Donaghy served as a referee from 1994 to 2007, officiat-

ing 772 regular season games and 20 post-season games.

133

On July

20, 2007, New York Post columnist Murray Weiss published a story

that confirmed the existence of an FBI investigation on Donaghy.

134

The investigation concluded that Donaghy had personal gambling lia-

bility, and worked to pay off his debts by placing tens of thousands of

dollars on his assigned NBA games from 2005 to 2007.

135

The Dona-

ghy scandal sent shockwaves through the NBA: despite the NBA’s

own systems of monitoring its referees, the league insisted it had no

knowledge of Donaghy’s illicit acts before the FBI identified Donaghy

as a participant in a larger organized crime investigation.

136

In studying the Donaghy scandal, sports gambling expert R.J. Bell,

who serves as the president of betting website pregame.com, studied

the last four years of Donaghy’s career.

137

Bell analyzed Donaghy’s

worked games from 2003 to 2005 as a two-year control for 2005 to

2007, which were the years in which Donaghy was accused of manipu-

lating the spread.

138

Bell found that in the control years, the teams

combined to score more points than Las Vegas expected in 44% of

games.

139

In the latter two years, this percentage rose to 57%.

140

Ac-

131. Associated Press, Former coach cleared; UW’s probation extended,

ESPN.

COM

(Oct. 21,

2004, 4:48 PM), http://sports.espn.go.com/ncf/news/story?id=1905642.

132. Id.

133. Donaghy under investigation for betting on NBA games,

ESPN.

COM

(July 20, 2007, 11:05

PM), http://sports.espn.go.com/nba/news/story?id=2943095.

134. Murray Weiss, NBA in a ‘Fix’,

ORK

OST

(July 20, 2007, 9:00 AM), http://nypost

.com/2007/07/20/nba-in-a-fix/.

135. Id.

136. Bomani Jones, Corruption on the court is bad news for NBA,

ESPN.

COM

(July 20, 2007,

7:22 PM), http://sports.espn.go.com/espn/page2/story?page=jones/070720.

137. R.J. Bell, NBA Referee Tim Donaghy — Strong Evidence of Game-Fixing,

REGAME

COM

(May 17, 2008, 11:15 PM), http://pregame.com/pregame_blogs/b/rj-bell/archive/2008/05/17/

nba-referee-tim-donaghy-strong-evidence-of-game-fixing.aspx.

138. Id.

139. Id.

140. Id.

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76 DEPAUL J. SPORTS L. & CONTEMP. PROBS. [Vol. 11:59

cording to Bell, this discrepancy only had a 1-in-1000 chance of hap-

pening without an external influencing factor; in other words, there

was a 99.9% chance that this increased frequency of “beating Vegas”

on points was due to a game-fixing scheme.

141

More alarmingly, Bell

found ten consecutive Donaghy games in which the point spread

moved by at least 1.5 points, which is an indication that “big money”

had been placed on the respective games.

142

Each of these ten times,

the “big money” team represented the winning bid.

143

Despite the

fact that “hindsight is 20/20,” Bell insisted that these manipulations,

while easy for Donaghy to make, would have been imperceptible to

people not involved in the fix, as there was no reason to have been

suspicious of any Vegas irregularity at the time.

144

Another handicap-

per, Brandon Lang, estimated that an official could have a 75%

chance of being able to directly influence an outcome, if he had a fi-

nancial stake in the game.

145

As of now, the NBA has maintained that

Donaghy was a rogue official, and that no other referees have ever

placed bets on its games.

On August 15 (less than one month after the Weiss story), Donaghy

appeared in federal court in Brooklyn, where he pled guilty to con-

spiracy to engage in wire fraud and transmitting wagering information

through interstate commerce.

146

Donaghy specified that he was ini-

tially paid $2,000 per correct pick to his bookies (who were high

school classmates of Donaghy); however, he would eventually be

awarded $5,000 per correct pick due to his consistent accuracy.

147

Donaghy earned $100,000 worth of “dirty money” for inside informa-

tion he provided as a referee, most often pertaining to a player’s in-

jury status and players’ relationships with other referees.

148

In the NBA’s efforts to regain the public’s confidence and to pre-

vent a future similar episode, the NBA made several changes in its

141. Id.

142. Id.

143. Id.

144. Id.

145. Wayne Drehs, Expert explains the many ways a crooked referee could fix bets, ESPN.com

(July 23, 2007, 7:25 PM), http://sports.espn.go.com/nba/news/story?page=expertexplainsNBA

bets.

146. Rachel Shuster, Donaghy sentenced to 15 months in gambling probe,

USA T

ODAY

(July

30, 2008, 7:52 AM), http://usatoday30.usatoday.com/sports/basketball/nba/2008-07-29-donaghy-

sentence_N.htm.

147. Id.; Henry Abbott, Tim Donaghy’s claims on trial,

ESPN.

COM

(Dec. 7, 2009, 8:06 PM),

http://espn.go.com/blog/truehoop/post/_/id/11340/tim-donaghys-claims-on-trial; Donaghy pleads

guilty, could face up to 25 years in prison,

ESPN.

COM

(Aug. 15, 2007, 8:23 PM), http://sports.espn

.go.com/nba/news/story?id=2975532.

148. Abbott, supra note 145.

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2015] THE NO-FANTASY LEAGUE 77

relationship with the referees. Most notably, instead of merely ninety

minutes prior to tip-off, the NBA would publicly disclose which refer-

ees were assigned to which games on the morning of each game.

149

announcing the referee crews earlier, the NBA reduced the “insider”

value of this information.

150

In addition, the league relaxed its for-

merly absolute ban on gambling, by allowing referees to partake in

some gambling activities outside of sports gambling.

151

[C]. C

LASSIFYING

ANTASY

OOTBALL

: G

AMBLING

OR A

AME OF

KILL

[C-1]. Arguments in Favor of Fantasy Football as a Game of Skill

If it should be deemed that fantasy football is gambling, then the

NFL’s active endorsement of fantasy football would clearly be inap-

propriate. However, even if fantasy football is actually determined to

be a game of skill, Commissioner Roger Goodell may be able to ban

fantasy football participation among NFL employees, if such partici-

pation were to be sufficiently inappropriate. This would be due, in

part, to the broad powers granted to each professional sports league’s

commissioner by their bosses: the team owners in each respective

league. Generally, commissioners are tasked with upholding the in-

tegrity of their respective professional leagues; furthermore, as private

actors that agree to be bound by collective bargaining agreements, the

owners and the players’ associations are afforded broad discretion in

stipulating which actions are to be forbidden, as well as stipulating

penalties and disciplinary processes.

The first threat against fantasy football was filed in federal court in

2006.

152

In a complaint against the three main providers of online fan-

tasy leagues (SportsLine, ESPN, and The Sporting News), Charles E.

Humphrey, Jr., claimed that pay-to-play fantasy sports constitute ille-

gal gambling (and thus violating Qui Tam Gambling-Loss Recovery

Laws) in multiple U.S. jurisdictions: New Jersey, Georgia, Illinois,

Kentucky, Massachusetts, Ohio, South Carolina, and the District of

Columbia.

153

New Jersey’s Qui Tam laws provide that if a person who

loses money gambling does not sue to recover the lost money within

six months, a third party may sue and recover on behalf of the money-

149. Chris Sheridan, NBA to revamp ref gambling rules; Jackson, Nunn see roles reduced,

ESPN.

COM

(Oct. 26, 2007, 9:16 PM), http://sports.espn.go.com/nba/news/story?id=3079309.

150. Id.

151. Id.

152. M. Christine Holleman, Recent Development, Fantasy Football: Illegal Gambling or Le-

gal Game of Skill?, 8 N.C. J.L. & Tech. 59 (2006).

153. Id. at 66.

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78 DEPAUL J. SPORTS L. & CONTEMP. PROBS. [Vol. 11:59

losers; if that third party were to prevail, then the proceeds would be

split with the state.

154

In Mr. Humphrey’s complaint, he petitioned

the court to (a) consider fantasy sports as gambling, (b) consider entry

fees as money lost to gambling, and (c) declare Mr. Humphrey a pre-

vailing third party, entitling him to a portion of the proceeds.

155

In support of finding fantasy football as a game of skill, and not as a

form of gambling, M. Christine Holleman identified three policy con-

siderations: (1) the inapplicability of traditional rationales for outlaw-

ing gambling to fantasy sports, (2) recent Congressional legislation to

serve as Congressional support for fantasy sports, and (3) the conse-

quences of damaging an innocuous billion-dollar industry (emphasis

added) that would directly result from declaring fantasy sports as a

form of gambling.

156

Ms. Holleman notes that in New Jersey, recov-

ery of money under this statute may only be of “wagers, bets or stakes

made to depend upon any race or game, or upon any gaming by lot or

chance, or upon any lot, chance, casualty or unknown or contingent

event.”

157

To counter this point, the defendant fantasy football prov-

iders noted that entry fees are fixed and unconditional, the prizes are

guaranteed regardless of the number of participants, and “the party

offering the prize . . . is not also competing for it.”

158

Meanwhile, Mr.

Humphrey asserted that fantasy football is subject to a larger chance

impact than skill, and that staking success to future performance of

players and sections of teams is just like gambling on the sports games

themselves.

159

[C-2]. Arguments in Favor of Fantasy Football as Gambling

Anthony Vecchione, writing for the SMU Law Review, noted that

for more than three decades, the NFL itself opted to keep its relation-

ship with fantasy football at arm’s length, for fear of inherent connota-

tions of gambling.

160

To this day, the Fantasy Sports Trade

Association, an organization founded in 1998 in order to teach fantasy

football to the public and to promote the industry through interested

154. Id. at 66.

155. Complaint at 24, Humphrey v. Viacom, Inc., No. 2:06-CV-02768, 2006 WL 2300429

(D.N.J. Jan. 23, 2006).

156. Holleman, 8 N.C. J.L. & Tech. at 59.

157. Id. at 69.

158. Id.

159. Id. at 71.

160. Anthony Veccione, Comment, Fantasy Sports—Has Recent Anti-Gambling Legislation

‘Dropped the Ball’ by Providing a Statutory Carve-Out for the Fantasy Sports Industry?, 61 SMU

L. Rev. 1689, 1701 (2008).

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2015] THE NO-FANTASY LEAGUE 79

companies,

161

has recognized gambling as a touchy subject.

162

Gam-

bling and fantasy football are intertwined, and arguably too inter-

twined to have ever expected Congress to make a seamless fantasy

football exception. In fact, Daniel Okrent—who is considered to be

the father of fantasy baseball due to his efforts in 1979

163

—could not

help but think of gambling when he established the first rules. He and

his league’s founders settled on a $250 salary cap for player drafting

purposes, “because it seemed a reasonable amount to ante into what

was essentially a summer-long poker game.”

164

If fantasy sports were acknowledged as derivatives of sports gam-

bling, then there, by nature, has to remain some vestiges of gambling

that cannot possibly be explained by skill. No matter how methodical

a fantasy sports participant may be in selecting his players for his

overall roster and for selecting his “starting lineup,” even fantasy play-

ers themselves acknowledge that winning results from a combination

of luck and skill.

165

Anecdotes of players “ruining fantasy teams” are

endless, from stories of in-real-game strategy, e.g.: a 2009 play in

which Jacksonville Jaguars running back Maurice Jones-Drew refused

a “free” touchdown against the New York Jets, and instead took a

knee at the one-yard line, valuing a running clock late in the game and

the chance to end on a winning field goal instead of taking the touch-

down and kicking off to the Jets with time to spare,

166

to stories of

complete and utter personal and inexplicable bad luck, e.g.: an epi-

sode in which John Smoltz injured himself by burning his chest with

an iron, in an attempt to iron a shirt he was wearing at the time.

167

Of more recent vintage, a fantasy football dilemma was created out

of the new dependence on the Internet. Some fantasy football

leagues, including “standard leagues” on ESPN.com, employ a list of

undroppable players.

168

This is done in order to eliminate collusion in

leagues and to maintain competitive balance within the fantasy

league. The rationale behind this policy is that in a league without

161. Id. at 1691.

162. Id. at 1701.

163. Id. at 1693.

164. Id. at 1701.

165. Id. at 1702.

166. Chris Chase, Maurice Jones-Drew takes a knee, apologizes to fantasy owners,

AHOO

PORTS

(Nov. 15, 2009), http://sports.yahoo.com/nfl/blog/shutdown_corner/post/Maurice-Jones-

Drew-takes-a-knee-apologizes-to-f?urn=nfl,202651.

167. Veccione, 61 SMU L. Rev. at 1701, quoting Libby Lewis, Fantasy Sports: Only a Game, or

Is It Gambling?, NPR (June 23, 2006, 4:00 PM), http://www.npr.org/templates/story/story.php?

storyId=5507139.

168. Undroppables – Free Fantasy Football,

ESPN.

COM

, http://games.espn.go.com/ffl/tools/un

droppables (last visited Nov. 27, 2014).

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80 DEPAUL J. SPORTS L. & CONTEMP. PROBS. [Vol. 11:59

such an undroppable list, fantasy managers could drop star players

from their teams, let those star players go to the “waiver wire,” and,

basically, allow other fantasy managers to claim the star players.

169

Minnesota Vikings running back Adrian Peterson was on the no-cut

list for ESPN and Yahoo fantasy football before September 12,

2014.

170

This date was significant to Vikings fans, sports fans, and fan-

tasy football fans alike, as Peterson was indicted, in Texas, on charges

of child abuse, stemming from injuries observed on his child consist

with being “whooped” with a tree branch (better known in Texas par-

lance as a “switch.”)

171

With little advance notice, Peterson was deac-

tivated for the Vikings’ Week 2 game against the New England

Patriots, which resulted in mass hysteria among fantasy managers who

were saddled with dead weight on their fantasy rosters.

172

In this case,

a fundamental move of cutting a player from one’s fantasy team when

that player was known to be ineligible for an upcoming game was im-

possible, overriding any and all skill-based fantasy preparation that

might have taken place otherwise, or without Internet interference.

[C-3]. Resolution, and Public Policy Impacts

Mr. Humphrey’s complaint was dismissed from the outset, due to a

successful 12(b)(6) motion by the defendants.

173

Fortunately for the

NFL and fantasy football organizers and participants throughout the

Internet with vested interests in fantasy football, dismissal of this com-

plaint was proper, because as of October 13, 2006, U.S. Congress ex-

plicitly deemed fantasy football to be legal.

174

In carving out this

special exception from the anti-internet gambling statutes, benefitting

fantasy sports operations and enabling Congress to easily and readily

subject fantasy football winnings to taxation, Congress appears to

have employed deficient logic, or else willfully elected to ignore fan-

169. Why can’t I drop certain players?,

ESPN.

COM

, http://games.espn.go.com/ffl/resources/

help/faq?name=why-cant-i-drop-certain-players (last visited Nov. 27, 2014).

170. See Timothy Burke, Yahoo! Won’t Let You Cut Adrian Peterson From a Fantasy Team

[UPDATE], Deadspin (Sept. 13, 2014, 2:32 PM), http://deadspin.com/yahoo-wont-let-you-cut-

adrian-peterson-from-your-fanta-1634359931 (noting that if fantasy managers were unsuccess-

fully attempting to cut Peterson on the 13th, he would have been on the no-cut list prior to that

date).

171. Tom Pelissero, Adrian Peterson: ‘I won’t ever use a switch again’, USA Today (Nov. 20,

2014), http://www.usatoday.com/story/sports/nfl/vikings/2014/11/20/adrian-peterson-roger-good

ell-child-abuse-switch-minnesota-vikings/70025476/.

172. Burke, supra note 156.

173. Martin Samson, Participants in Sports Fantasy Leagues are not Gamblers,

NTERNET

I-

BRARY OF

AW AND

OURT

ECISIONS

http://www.internetlibrary.com/cases/lib_case500.cfm

(last visited Jan. 15, 2015).; see also Fed.R.Civ.P. 12(b)(6).

174. 31 U.S.C. § 5362(1)(e)(ix) et seq. (2006) (hereinafter, in general, “UIGEA”).

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2015] THE NO-FANTASY LEAGUE 81

tasy sports in order to render other, “more obvious” internet gambling

as illegal.

As the Unlawful Internet Gambling Enforcement Act stipulates,

even though a “bet or wager” is:

The staking or risking by any person of something of value upon the

outcome of a contest of others, a sporting event, or a game subject

to chance, upon an agreement or understanding that the person or

another person will receive something of value in the event of a

certain outcome[,]

175

for the specific purpose of this statute, among activities explicitly ex-

cluded from the definition of “bets and wagers” is the:

participation in any fantasy or simulation sports game or educa-

tional 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 ama-

teur or professional sports organization (as those terms are defined

in section 3701 of title 28 [U.S.C. § 3701]) and that meets the follow-

ing conditions:

(I) All prizes and awards offered to winning participants are es-

tablished and made known to the participants in advance of the

game or contest and their value is not determined by the number of

participants or the amount of any fees paid by those participants.

(II) All winning outcomes reflect the relative knowledge and

skill of the participants and are determined predominantly by accu-

mulated statistical results of the performance of individuals (ath-

letes in the case of sports events) in multiple real-world sporting or

other events.

(III) No winning outcome is based -

(aa) on the score, point-spread, or any performance or per-

formances of any single real-world team or any combination of such

teams; or

(bb) solely on any single performance of an individual ath-

lete in any single real-world sporting or other event.

176

In specifically, and slightly awkwardly, exempting fantasy sports

leagues,

177

Congress has instituted a regime whereby “basic sports

gambling,” such as betting on the score, the point spread, parlays, and

over-under wagers would all be illegal by statute. On the other hand,

fantasy sports, which is essentially “complicated sports gambling”

based, in part, on combinations of real-world team units (most often

team defense performance) and performances of individual athletes

175. Vecchione, 61 SMU L. Rev. 1689, 1703 (2008), quoting 31 U.S.C. § 5362(1)(a) (2006).

176. 61 SMU L. Rev. at 1703, quoting 31 U.S.C. § 5362(1)(e)(ix) et seq. (2006).

177. 61 SMU L. Rev. at 1703.

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82 DEPAUL J. SPORTS L. & CONTEMP. PROBS. [Vol. 11:59

(whereby every ten or fifty yards gained can be analogized to a chain

of over-under wagers for fantasy points) would be permissible.

At the time of Ms. Holleman’s commentary, there was no explicit

ruling on fantasy football, so her closest comparable was from video

poker.

178

Courts have found that even though a video poker machine

might have a large element of chance, this finding alone cannot clas-

sify video poker as gambling per se.

179

Instead, courts tend to ex-

amine each instance on a case-by-case basis.

180

In this case-by-case

basis, Mr. Vecchione’s viewpoint should have been given more weight

than that of Ms. Holleman.

181

In highlighting propositions supporting

fantasy football prognostication as a game of skill, Ms. Holleman

quotes Mr. Glenn Colton, who in turn purports “that there are many

‘ways in which someone can skillfully and intellectually predict how a

player is going to perform,’” including studying offensive coordina-

tors’ techniques, quarterbacks’ performance, and whether teams are

run- or pass-oriented.

182

Using this logic, it is difficult to delineate a

significant difference between fantasy football and gambling on horse

racing. In placing bets on horses, gamblers can consider the condition

of the track (recent rain can favor “mudders”), the length of the race,

and how well rested each horse may be.

Ms. Holleman also considers public policy, to the extent that the

average fantasy player is university educated, earns $90,000 per year,

and earmarks $500 per year for fantasy sports.

183

Even though this

$500 is less than one percent of the average fantasy player’s annual

income, this should be indistinguishable from a buy-in at the World

Series of Poker, which, in turn, has sprawled beyond the confines of

the casino, to private living rooms, where gambling websites offer to

cover players’ buy-ins and enable players to play initial rounds re-

motely. $500 was also, at one time, more than enough for the wife of

New Jersey physician and fantasy player Edgar Chou to match a $300

fantasy pot in an effort to get her husband to focus on more impor-

tant, and ultimately more beneficial, investments and savings.

184

Mr. Vecchione accused Ms. Holleman’s assertions that fantasy play-

ers are “typically normal and well-adjusted” of being unsupported.

185

Football fandom is widespread in American culture, spanning all

178. Holleman, 8 N.C. J.L. & Tech. 59, 71-2 (2006).

179. Id. at 72.

180. Id.

181. Id.

182. Id.

183. Id. at 76.

184. 61 SMU L. Rev. at 1705-6.

185. Id. at 1704.

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2015] THE NO-FANTASY LEAGUE 83

states and socioeconomic levels. Similarly, fantasy football fever has

manifested symptoms in a sixty-year-old Fay Shutzer of New York

(spending “fifteen to thirty minutes per day” on “probably an incredi-

ble waste of brain cells and time),

186

a fifty-eight-year-old Kent

Thomas Spellman (who once woke up at 3 AM just to check the West

coast results that would implicate his fantasy team),

187

and a twenty-

five-year-old Josh Jackson (who thinks about “this obsession” all day

and night).

188

Mr. Vecchione’s opinions on public policy give much

more appropriate weight to fantasy football’s potential to create mari-

tal strife. In addition to the Edgar Chou example,

189

Mr. Vecchione

cited Raphael Poplock, vice president of games at ESPN, who disap-

peared to manage his fantasy team on his wedding day, and that he

“had an itch the whole time” while experiencing “withdrawal” during

his honeymoon in Greece.

190

Finally, Mr. Vecchione returned to Mr.

Okrent, who, during his lifetime, amassed a number of written letters

in which wives accused him of ruining their marriages through his in-

vention.

191

Mr. Okrent recalled a specific story about Robert Sklar, a

charter member of his league.

192

Mr. Sklar’s girlfriend gave him an

ultimatum to choose between doing the fantasy draft and their rela-

tionship, telling him “[i]f you participate in this crazy draft, we are

through.”

193

Mr. Okrent recalled that “[Mr.] Sklar didn’t spend

enough money on pitching but otherwise[,] he had a pretty decent

draft.”

194

Football can manifest ugly consequences in anybody, from a high

school student,

195

to a college player,

196

to a drafted professional with

limited “cups of coffee” worth of experience in the NFL,

197

to the Hall

of Fame player and civic icon who, miraculously, had enough sense to

end his post-retirement physical suffering by shooting himself in the

186. Id.

187. Id.

188. Id. at 1705.

189. Id. at 1705-6., supra note 169.

190. Id. at 1706.

191. Id. at 1705.

192. Id.

193. Id.

194. Id.

195. See, e.g.: Michael Walsh, Long Island high school football player dies after collision dur-

ing game,

ORK

AILY

EWS

(Oct. 2, 2014, 8:23 AM), http://www.nydailynews.com/new-

york/high-school-football-player-dies-collision-article-1.1960634.

196. See, e.g.: Kieran Darcy, Rutgers’ Eric LeGrand paralyzed,

ESPN.

COM

(October 18, 2010),

http://sports.espn.go.com/new-york/ncf/news/story?id=5696563.

197. See, e.g.: David Pincus, 9/07/2007 – Kevin Everett suffers paralysis,

SB N

ATION

(Aug. 9,

2012, 2:52 PM), http://www.sbnation.com/2012/8/9/1228326/9-09-2007-kevin-everett-suffers-

paralysis.

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84 DEPAUL J. SPORTS L. & CONTEMP. PROBS. [Vol. 11:59

chest so that his brain could be free of gun debris and studied for signs

of chronic traumatic encephalopathy.

198

Similarly, fantasy football

can become anybody’s addiction and ruin any number of cherished

friendships or relationships, exactly like gambling.

199

In fact, Mr. Vec-

chione theorized that the Internet truly has been a game-changer in

turning fantasy football from a geeky and time-consuming hobby into

an addiction.

200

In his analogy, he compared Internet-based fantasy football to

video slot machines, as analog fantasy football would be to scratch-off

tickets, poker, or other forms of gambling.

201

He, in turn, cited a

study conducted by Rhode Island clinical psychologist Robert Breen,

who discovered that slot machine devotees can be addicted as soon as

within one year, while other forms of gambling tended to take at least

three years to render the participants addicted.

202

Breen’s hunches, as

to why, include that similar to how slot machines do not intimidate

novices, internet fantasy football greatly mitigates the intimidation

factor for new players, enabling them to create teams and instantly see

feedback and “feel the rush” of winning.

203

Given these societal ills,

Congress should not have rushed to Ms. Holleman’s “harmless” judg-

ments, and the NFL is probably acting inappropriately, and definitely

out of character, in its shameless support of fantasy football.

[D]. T

NFL’

OLE IN

ANTASY

OOTBALL

Gambling is illegal for NFL players. As provided in Paragraph 15

of the standard player contract, which is entitled “Integrity of Game,”

players are enjoined from “knowingly associat[ing] with gamblers or

gambling activity,”

204

as well as from “any other form[s] of conduct

reasonably judged by the League Commissioner to be detrimental to

the League or professional football.”

205

Violations of this provision

may result in fines, suspension, or the termination of the player’s con-

198. See Nathaniel Penn, The Violent Life and Sudden Death of Junior Seau, GQ (Sept.

2013), http://www.gq.com/entertainment/sports/201309/junior-seau-nfl-death-concussions-brain-

injury; see also Peter Keating, An unsettling deal on concussions,

ESPN T

AGAZINE

(Nov. 18, 2014), http://espn.go.com/nfl/story/_/id/11899196/nfl-concussion-settlement-bob-stern-

objection.

199. 61 SMU L. Rev at 1708-9.

200. Id. at 1706-9.

201. Id. at 1708-9.

202. Id.

203. Id. at 1709.

204.

NFL/NFLPA C

OLLECTIVE

ARGAINING

GREEMENT

261 (August 4, 2011),available at

http://images.nflplayers.com/mediaResources/files/PDFs/General/2011_Final_CBA_Searchable_

Bookmarked.pdf (follow “CBA, Collective Bargaining Agreement” hyperlink),

205. Id.

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2015] THE NO-FANTASY LEAGUE 85

tract.

206

The same prohibition applies to practice players, as can be

found in Paragraph 14 of their own standard form contract.

207

These

contracts are attached as appendices to the NFL/NFLPA Collective

Bargaining Agreement (hereinafter “NFL CBA” or “CBA”), which,

as a whole, applies to all NFL players under contract, all prospective

players who seek employment as a NFL player, all drafted rookies,

and all undrafted rookies once they commence negotiations with a

NFL member club.

208

Though arguably not as infamous as the Black Sox Scandal,

209

Pete

Rose of the MLB’s Cincinnati Reds,

210

or former NBA referee Tim

Donaghy,

211

the NFL was once plagued with a gambling scandal. On

April 17, 1963, Commissioner Pete Rozelle suspended two of the big-

gest marquee stars of the league, Paul Hornung of the Green Bay

Packers and Alex Karras of the Detroit Lions, for the 1963 season for

gambling on football and associating with “known hoodlums.”

212

addition, Rozelle fined five of Karras’s Detroit teammates: Joe

Schmidt, Wayne Walker, John Gordy, Gary Lowe, and Sam Williams,

$2000 each for their respective $50 bets on the 1962 NFL Champion-

ship Game between the Packers and the Giants.

213

(The players took

the points, but the Packers covered the spread, so the players lost.)

214

Hornung maintained that his bets, similar to Donnell’s participation in

his fantasy league, were with friends, and that he only wagered one or

two hundred dollars per game.

215

On the other hand, Rozelle con-

cluded that Hornung’s bets were as rich as $500, while Karras made at

least six bets, each of $50 or $100.

216

Despite Hornung and Karras’s suspensions, they later returned to

their NFL careers, after respective apologies of varying contrition.

217

Karras would be nominated for one more annual All-Pro selection

before retiring in 1970, while Hornung would eventually be enshrined

in the Pro Football Hall of Fame in 1986.

218

Meanwhile, fantasy foot-

206. CBA at 261-2.

207. Id. at 286.

208. Id. at xiv.

209. See supra Part [B-1].

210. See supra Part [B-2-a].

211. See supra Part [B-2-b-ii].

212. Larry Schwartz, Hornung, Karras suspended for betting on NFL,

ESPN.

COM

(Nov. 19,

2003), http://espn.go.com/classic/s/moment010417hornung-karras-betting.html.

213. Id.

214. Id.

215. Id.

216. Id.

217. Id.

218. Id.

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86 DEPAUL J. SPORTS L. & CONTEMP. PROBS. [Vol. 11:59

ball was in its infancy, barely known beyond the confines of

Winkenbach’s circle of close personal friends.

219

If Hornung would

have known about fantasy football at that time, he might have consid-

ered it a form of gambling, or, in the alternative, an activity that would

have invited further scorn from Commissioner Rozelle. Prior to a

1964 game, Karras, despite being a team captain, refused to partici-

pate in the pre-game coin toss (used to determine which team will

kick to whom to start the game, and which team will defend which end

zone to start the game), citing his prohibition against gambling.

220

Ac-

cordingly, even if fantasy football is not illegal due to the UIGEA,

there is at least some cognitive dissonance, in that the NFL supports

state bans on sports gambling, but actively promotes the fantasy foot-

ball game.

[E]. R

ECOMMENDATIONS

Despite the fact that Congress has exempted fantasy football from

the UIGEA, the NFL is not on solid moral ground in allowing its

active players to associate with fantasy football. As is, fantasy football

is explicitly permissible federally, but there is still some variation

among the states.

221

For example, through court decisions and stat-

utes, the following states do not distinguish between games of chance

and games of skill in their respective anti-gambling laws: Arizona, Ar-

kansas, Florida, Hawaii, Illinois, Iowa, Louisiana, Maryland, and Ten-

nessee.

222

This impacts fantasy managers throughout the country—

not just managers who live in a state with a NFL team. If we were to

allow the possibility that NFL players could manage their own fantasy

teams, then nine teams’ players should have a special incentive to ab-

stain from playing fantasy football for fear of state law liability: the

Arizona Cardinals, the Jacksonville Jaguars, the Miami Dolphins, the

Tampa Buccaneers, the Chicago Bears, the New Orleans Saints, the

Baltimore Ravens, the Washington Redskins, and the Tennessee Ti-

tans. Furthermore, the NFL’s “unclean hands” problem became even

more complicated, thanks to Richard Sherman’s sponsorship deal with

FanDuel.

223

FanDuel is a fantasy football site that allows players to

219. See supra Part [A].

220. Paul Hornung and Alex Karras,

ETTING

PORTS

, http://www.bettingsports.com/sports-

betting-scandals/paul-hornung-and-alex-karras/ (last visited Nov. 27, 2014).

221. John Boswell, Note, Fantasy Sports: A Game of Skill That Is Implicitly Legal Under State

Law, and Now Explicitly Legal Under Federal Law, 25 Cardozo Arts & Ent. L.J. 1257 (2008).

222. Id. at 1264 n. 48.

223. Marc Edelman, FanDuel Hires Richard Sherman as Endorser Despite Contest’s Illegality

in Washington,

ORBES

(Nov. 9, 2014, 9:01 AM), http://www.forbes.com/sites/marcedelman/2014/

11/09/fanduel-hires-richard-sherman-as-endorser-of-its-paid-games/.

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2015] THE NO-FANTASY LEAGUE 87

play against other players on a week-to-week basis, instead of having

to join a season-long league. Meanwhile, Richard Sherman is a star

cornerback for the Seattle Seahawks, and despite his endorsement,

FanDuel’s own Terms of Service blocks activity in the State of

Washington.

224

To eliminate the most blatant appearance of impropriety, and to

properly assert the maximum amount of authority a private actor will

be able to assert, the NFL should prohibit its players from engaging in

fantasy football. This can be easily accomplished with a reasonable

reading of the NFL CBA, stemming from Hornung and Karras’s ex-

ample. Even if the CBA might already ban fantasy football, the NFL

should clarify such a prohibition. As a private actor that has a signifi-

cant need for specific uniformity due to specialized league knowledge

and the otherwise implication of multiple state laws, the NFL is al-

lowed to establish its own rules on certain delineated acts. For exam-

ple, the NFL has the power to suspend players based on as little as

mere allegations that could be perceived as damaging “the integrity of

the shield,” i.e.: the public’s perception of the NFL.

225

The NFL,

through its CBA, is also cogently able to prohibit its players from us-

ing marijuana, even though it is a medical drug in some members’

jurisdictions and recreationally legal in two.

226

It logically follows

then that the NFL can do the same for fantasy football, without alien-

ating football fans’ rights under the UIGEA or by usurping congres-

sional action, while still acting in a manner consistent with the CBA.

Alternatively, if the NFL insists on flexing its marketing muscle,

perhaps it could establish a special players-only league, while banning

other external, non-NFL-approved fantasy leagues. In this vision of a

players-only league, a title sponsor might give players “entrance fee

money,” players could manage fantasy teams (probably subject to spe-

cial NFL rules to eliminate conflicts of interest from the actual NFL

schedule, and even with some possibility of fans’ influence), and the

winner could then win the fantasy pool money for the charity of his

choice. While a more absolute ban on NFL players’ participation in

fantasy football would be preferable for moral standing and uniform-

ity, this alternative type of league might be a reasonable concession, if

it should be shown that fantasy football were popular among the

224. Id.

225. Roethlisberger suspended by NFL,

ESPN.

COM

(Apr. 22, 2010, 12:48 PM), http://sports

.espn.go.com/nfl/news/story?id=5121614.

226. See, e.g.: Kevin Patra, Josh Gordon’s reduced suspension to benefit Browns,

NFL.

COM

(Sept. 20, 2014, 12:32 AM), http://www.nfl.com/news/story/0ap3000000397223/article/josh-gor

dons-reduced-suspension-to-benefit-browns.

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88 DEPAUL J. SPORTS L. & CONTEMP. PROBS. [Vol. 11:59

NFLPA. However, this concession should not be considered the best

option, because the NFL would still be left with unclean hands, by

virtue of failing in its moral obligations to the players for their well

being.

Recognizing this unclean-hands problem, the NFL should ban fan-

tasy football among its players, to avoid being portrayed as a proxi-

mate cause to alumni’s post-career personal troubles. While the

average NFL career is estimated to be merely three years long, the

NFL is currently fighting numerous battles in the court of public opin-

ion, such as issues relating to head trauma, domestic violence, and sex-

ual assault. Specifically, in the aftermath of Minnesota Vikings

running back Adrian Peterson and his child abuse misdemeanor con-

victions, the NFL moved to expand its anti-violence training program

to all employees to include discussions of child abuse.

227

In addition

to the public relations beatings the league takes on physical issues, the

league has many examples of its players filing for bankruptcy, despite

having earned millions of dollars in lifetime salary.

228

This issue was

especially magnified during the 2011 NFL lockout, as players became

unable to earn money from their contracts.

229

Because the players

were so dependent on their special football skills and regimented

work schedules (most contracts call for payment after games, and

many also include “workout bonuses,” which were all suspended dur-

ing the lockout), the players opted for predatory cash loans.

230

Dur-

ing the NBA’s own lockout in 2011, at the urging of the NBPA, some

players, such as Andr ´e Iguodala of the Philadelphia 76ers, secured in-

ternships to educate themselves about smarter money management.

231

The NFLPA should follow a similar course of action instead of en-

couraging its players to strike out on their own, as these players often

resort to common yet risky business models such as opening restau-

rants, and as a result find themselves in significant financial trouble.

In explaining why he gambled on baseball, Pete Rose explained that

while growing up in Cincinnati, gambling was a way of life, and that he

always thought it was thrilling to have a financial stake in an out-

227. Jane McManus, Tough Stance in Adrian Peterson Case Shows How Far the NFL Has

Come,

ESPNW.

COM

(Nov. 18, 2014), http://espn.go.com/espnw/news-commentary/article/118969

72/tough-stance-adrian-peterson-case-shows-how-far-nfl-come.

228. Adam Molon, Why so many ex-NFL players struggle with money, CNBC (Jan. 31, 2014,

12:29 PM), http://www.cnbc.com/id/101377457.

229. See Chris Corbellini and Jason Schwartz, Locked-out players line up for cash,

PORTS

(June 2, 2014, 1:49 PM), http://www.foxsports.com/nfl/story/nfl-lockout-leads-to-players-

taking-out-cash-loans-with-huge-interest-rates-051511.

230. Id.

231. Marc. J. Spears, Iguodala gets lesson in money game,

AHOO

! S

PORTS

(Sept. 29, 2011),

http://sports.yahoo.com/nba/news?slug=mc-spears_andre_iguodala_092911.

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2015] THE NO-FANTASY LEAGUE 89

come.

232

He had frequented horse racetracks since he was six years

old, and he considered them to be sanctuary,

233

as outlets for his frus-

trations from everyday life. For Rose, gambling was never about the

money, but it was about the “action high,”

234

which he found to be

especially missing after he eclipsed Ty Cobb’s career record for the

most base hits in a MLB career. According to Rose, most athletes like

to gamble.

235

Imagining Rose’s mindset in a NFL player who man-

ages a fantasy football team, this player might be attracted to fantasy

football for “action highs,” and he might risk a lot of money on his

ventures because of his perceived specialized knowledge and because

of his need to risk enough money for him to feel the action high.

In tacitly condoning NFL players’ participation in fantasy football

leagues, the NFL is creating a potent cocktail for financial ruin for

NFL players, as well as risking that its product is perceived as illegiti-

mate. Even if some players might dislike being told how and how not

to spend their earned money, a prohibition on professional athletes

from operating fantasy leagues within their own organization (which

necessarily depend on the successes and failures of fellow union mem-

bers) would not only benefit their own lives, but it would represent a

small, yet necessary, step in ensuring that all results are legitimate.

With respect to players’ best interests, gambling was dubbed “an ad-

diction of the 90’s” when the Arizona State point-shaving scandal was

uncovered.

236

As fantasy football has evolved from analog record

keeping based on newspaper box scores to instant Internet feedback,

and from basements to worldwide participation,

237

it is clear that fan-

tasy football is either an addiction of the 21st century,

238

or a signature

pastime of the 21st century.

239

Regardless as to the overall societal impact of fantasy football, it

should behoove sports leagues to ban its players from participating in

fantasy football leagues, due to fantasy sports’ intertwined legacies

with gambling,

240

the strong whiff of potential impropriety in the af-

termaths of numerous sports betting scandals,

241

and the fact that the

Commissioner can reasonably interpret this action as consistent with

232.

ETE

OSE WITH

ICK

ILL

, M

RISON

ITHOUT

ARS

31 (2004).

233. Id

234. Id. at

225.

235. Id. at

226.

236. Point-Shaving Scandal Hits Arizona State, supra note 111.

237. See generally supra Part [A].

238. Vecchione, 61 SMU L. Rev. 1689 (2008); see generally supra Part [C-2].

239. Holleman, 8 N.C. J.L. & Tech. 59 (2006); see generally supra Part [C-1].

240. 61 SMU L. Rev. at 1701, supra note 149.

241. See generally supra Part [B] et seq.

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90 DEPAUL J. SPORTS L. & CONTEMP. PROBS. [Vol. 11:59

the CBA and in accordance with Judge Kenesaw Mountain Landis’s

and former NFL Commissioner Pete Rozelle’s legacies. After all, if

players like Larry Donnell were unable to participate in fantasy

leagues, to paraphrase Mr. Donnell, “we can bench all fantasy contro-

versies, and we can all win on Sunday.”

242

242. Raanan (Oct. 9, 2014), supra note 11.