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DraftKings enlists high-profile lawyer in fantasy sports legal battle

ALBANY – The legal tussle over the legality of daily fantasy sports contests is a matter for a judge to decide.

But that hasn’t stopped Attorney General Eric T. Schneiderman and his combatants from trying to grab the public relations high bar.

For his part, Schneiderman has taken to interviews, scathing comments about daily fantasy sports companies and an op-ed piece this week.

On Friday, it was the turn of DraftKings, the Boston-based daily fantasy sports company embroiled, along with FanDuel, in a legal battle with Schneiderman that threatens to permanently shut down their operations in New York State.

The company Friday afternoon brought out Manhattan lawyer David Boies, whose clients have included the NFL, the U.S. Justice Department in its antitrust case against Microsoft and Al Gore in his losing 2000 presidential Florida ballot-counting case. In a 60-minute conference call with reporters, Boies played out the case the company will make next week when Schneiderman, DraftKings and FanDuel fight it out before a State Supreme Court judge the day before Thanksgiving.

Boies said his client has been openly operating in New York for eight years, and until 10 days ago no one, including Schneiderman, has “suggested, hinted, asserted that there was anything illegal” about its business.

Schneiderman is attempting to halt daily fantasy sports contests, saying they break New York law because they include a material element of chance. Boies says fantasy sports offer customers a skill-based game. He dismissed whether the contests are gambling, saying “in a colloquial sense … it’s a question of whether (it’s) unlawful gambling” under New York’s legal definition.

Boies said DraftKings pays its customers – who pay “entry fees” – a predetermined, fixed amount of prize money depending on the outcome of professional players’ performance in various sports games. He said that for Schneiderman to be successful, he must prove that daily fantasy sports is a wager based on chance or it was beyond the player’s control or influence. He likened it to a chess tournament with entry fees that also includes an element of chance: the toss of a coin to determine who goes first.

The DraftKings lawyer said Schneiderman has “obviously changed his mind” only recently about the legality of daily fantasy sports. He has that right, Boies said, but, “He’s not entitled to unilaterally change the law.”

FanDuel this week suspended doing business with New York residents, while DraftKings says it will keep offering its contests in the state until otherwise ordered by a judge.