Survival as much as maximized profits was the driving force behind the merger proposal of daily fantasy sports sites DraftKings and FanDuel Inc. With the deal now quashed in the wake of the Federal Trade Commission’s antitrust concerns, the two companies are left facing an uncertain future.
The main motivation for the two giants in the industry could now be to reduce the uncertainty that clouds their prospects for growth and stability.
That uncertainty — from the games’ legality and the cost of lobbying in multiple states and fighting courtroom battles to achieve clarity on that front — remains the single biggest obstacle the two sites face.
The merger’s demise could also spur a quicker settlement to a potential class action suit in Boston.
Prior to Thursday’s decision by the two firms to walk away from their merger, industry data tracker Eilers & Krejcik Gaming offered what was then an optimistic outlook, but now reads as a bleak forecast in its annual data analysis.
“We also believe regulators will come to recognize that blocking the merger will likely result in one (if not both) companies failing, an outcome that realizes the worst of both worlds,” the report concluded.
They won’t be going away anytime soon. The number of North Americans regularly playing fantasy sports in 2017 is at nearly 60 million and growing, according to the Fantasy Sports Trade Association. Neither of the main competitors are operating in the black yet, but both could be making money by 2018. Both are well-financed and count major media and sports entities among their backers. It’s a symbiotic relationship which saw ESPN and Fox invest in DraftKings, which then bought millions of dollars of advertising time from them. Ditto FanDuel and NBC, Comcast and Time Warner.
The National Basketball Association and National Hockey League have invested in both sites, which of course promote their games. Five teams from the National Football League — the most popular fantasy-gaming sport by far — have cut deals with the sites, and Dallas Cowboys owner Jerry Jones and New England Patriots owner Robert Kraft both have invested in FanDuel.
But revenue growth for daily fantasy sports has slowed. Projected to hit $4 billion in 2016, it came in at $3.2 billion. The projection for 2020 has been adjusted down from $8 billion to $4.8 billion by Eilers & Krejcik.
The most immediate and potentially damaging challenge facing both companies is the class action suit currently being heard in federal court in Boston. If the class is certified it could include more than 100 cases with thousands of players, which means the potential payout in the case could go as high as nine figures.
DraftKings has hired heavyweight litigator David Boies of the New York law firm Boies Schiller Flexner to lead its defense, an indicator of how much is riding on the case, according to Daniel Wallach, an attorney and sport gaming expert with Becker & Poliakoff in Fort Lauderdale, Florida.
He thinks the timing and circumstances could be right for a settlement.”The exposure for the sites if this goes to trial and they lose could be crushing,” said Wallach. “And on the other side the lawyers don’t want to jeopardize their contingency fee should they roll the dice and lose. So there may be an opportunity to settle,” he said.
After that it’s back to many of the same problems they had before last November, when the merger was proposed.
Separately, they are tough competition for each other, evidenced by the more than $100 million each of the firms spent on marketing in 2015. They cut that back significantly in 2016, focusing jointly instead on state-by-state lobbying efforts to solidify the legal status to daily fantasy sports, and scored major wins in New York and Kansas.
Thirteen states, including New York, have legislation that allows and regulates DFS; nine, including Texas and Florida, have legislation that would make it illegal pending; 19 others have legislation pending, and are a mixed bag of pro and con; five states ban it and four are currently sitting out the debate.
FanDuel and DraftKings are both active in 40 states, and don’t accept customers in nine states, and only FanDuel operates in Texas, where the attorney general has signaled his belief that DFS is illegal.
In the run-up to the merger, FTC officials projected that if the two joined they would control roughly 90 percent of the DFS market. That was an eye-catching number and certainly didn’t help their chances with regulators. The two sides pointed out that if DFS was viewed as a sector of the overall fantasy sports industry, which includes the monthlong and annual game run by ESPN, CBS Sports and Yahoo, it would be a far smaller segment of the industry. The merger would have created a company smaller than the sum of their two parts, because the overlap of players on the sites hovered around 50 percent. That, along with combining financing, legal and legislative resources was a major reason the two wanted to merge, and will be difficult to remedy.
One strategy is expansion, like FanDuel’s May deal to bring the Women’s National Basketball Association into the fold, and another is to tweak the games and payouts. Look for the payouts to become smaller and more accessible and friendly to casual and smaller players who currently operate at a distinct disadvantage to quasi-professionals who provide most of the revenue and claims the bulk of the winnings.
The bottom line? A win or reasonable settlement in the potentially massive class action now being heard and favorable outcomes in a majority of states with legislation regarding their legality pending will give the sites a chance to get off the roller coaster ride they’ve been on, build more gradually and successfully stabilize.
But setbacks on either of those fronts could mean game over for either DraftKings, FanDuel or both.
Contact Todd Cunningham at email@example.com. On Twitter: @toddcnnnghm.