Have DraftKings, FanDuel Gone Too Far With Super Bowl, Pro Bowl Contests?

Correction: The story originally indicated that only DraftKings offered these contests; FanDuel also offered similar events.

With a single meaningful game left to be played, the Super Bowl, the NFL season is still not over in daily fantasy sports. FanDuel and DraftKings found a way to prolong the NFL fantasy season by another week.

The two operators have managed to add an extra week of NFL DFS by pairing the meaningful Super Bowl with the completely irrelevant Pro Bowl.

There are two reasons this is somewhat controversial:

Reason #1: What happened to ‘game of skill’?

First, it’s hard to square the DFS industry’s assertions about DFS being a game of skill when an all-star game constitutes 50% of the NFL games customers can choose from. And in the hierarchy of all-star games that professional athletes take seriously, the Pro Bowl is dead last.

The DFS industry has been arguing all along that their contests are not gambling, but rather games of skill, where DFS players rely on hard work and advanced analytics to succeed. Full disclosure, I fall into the intermediate camp that DFS is skill-based-gambling.

But, is choosing a roster based in large part on  an all-star game really skillful?

How does one go about researching the potential playing time of the participants (particularly since there isn’t an official injury report as there is for each week of the NFL season), or which players will take it semi-serious and which won’t?

As one industry follower put it, “How do you analyze the game, since Pro Bowl participants will likely play no more 20 plays each?”

Reason #2: Pushing the boundaries of the fantasy exemption

The second reason the decision to offer a Pro Bowl/Super Bowl combo is raising some eyebrows is that historically, daily fantasy sports websites follow the protocols laid out in the fantasy sports exemption found in the Unlawful Internet Gambling Enforcement Act. One of the provisions mentioned deals with the number of teams rosters are assembled from [bold mine]:

[The UIGEA does not include] participation in any fantasy or simulation sports game or educational 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 amateur or professional sports organization (as those terms are defined in section 3701 of title 28) and that meets the following conditions:

(I) All prizes and awards offered to winning participants are established 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 accumulated statistical results of the performance of individuals (athletes in the case of sports events) in multiple real-world sporting or other events.

(III) No winning outcome is based

(aa) on the score, pointspread, or any performance or performances of any single real world team or any combination of such teams; or

(bb) solely on any single performance of an individual athlete in any single real-world sporting or other event.

Based on the UIGEA guidelines, it feels like the sites are making a risky tradeoff that includes pushing the envelope of what falls under the designation of fantasy sports (according to UIGEA) in order to squeeze in one more week of DFS NFL action.

Because Pro Bowl participants are unlikely to put up gaudy statistics because of a lack of playing time, it is feasible that DFS rosters maxed out on the two Super Bowl teams will constitute the overwhelming majority of winners. This raises questions of whether or not the DFS contest is in fact based on multiple games, as per (III.aa) “ any performance or performances of any single real world team or any combination of such teams.”

Final thoughts

The pairing of the Super Bowl and the Pro Bowl will likely fly completely under the radar — after all, sites had no problem offering a two-game NFL slate last week for the conference championship games.

However, this willingness to continually push the envelope is also a good example of why some type of regulation is needed.

This could become even more concerning if a new company enters the fray and decides to go beyond the already questionable boundaries the industry has staked out.