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A Colorado attorney is taking on the world of fantasy sports in a first-of-its kind lawsuit that raises a controversial question: Are these pretend sports just another form of gambling? That’s what Charles E. Humphrey Jr. claims in a lawsuit that alleges that media including the ESPN cable network, CBS and The Sporting News are getting away with illegal gambling by hosting pay-to-play fantasy leagues, complete with big cash prizes and wide-screen TVs. At the heart of his complaint is that fantasy sports-a $1.5 billion industry with more than 15 million players-are games of chance, not skill, and therefore qualify as gambling. Humphrey v. Viacom Inc., No. 2:33-av-00001 (D.N.J.). Humphrey is being represented by the class action firm Gardy & Notis in Englewood Cliffs, N.J. The lawsuit has raised some commotion in the fantasy sports industry, which has invited a team of attorneys to discuss the potential impact of the suit at the 14th Fantasy Sports Trade Conference in Las Vegas on Aug. 30. “People of course are nervous about [the lawsuit] but the general feeling in the industry is that fantasy sports are not gambling,” said Glenn Colton of the New York office of Palo Alto, Calif.’s Wilson Sonsini Goodrich & Rosati, who will speak at the conference. Colton, who also represents the Fantasy Sports Trade Association, doesn’t believe Humphrey’s suit will succeed. “I think that the premise that [a fantasy sport] is more chance than skill is simply wrong,” Colton said. “There are very large number of ways in which someone can skillfully and intellectually predict how a player is going to perform.” For example, Colton said, a fantasy football player can study offensive coordinators’ techniques, evaluate who gets the ball more often-wide receivers or running backs-or study a quarterback’s performance. “That’s skill, not luck,” Colton said, noting that a bill is pending in Congress that would declare fantasy sports a legal business, not gambling. Humphrey disagrees, arguing that fantasy players can often lose because of circumstances beyond their control, like plain bad luck. For example, he said, if a baseball pitcher throws out his arm, or a football player twists an ankle, or a coach pulls out a star player to give him a break-all of those circumstances are beyond the player’s and bettor’s control. “A player can perform well or poorly based on circumstances out of their control and out of the control of the bettor,” Humphrey said. “This falls into a game of chance.” Humphrey filed his suit in federal court in New Jersey under that state’s gambling loss recovery statute, which allows a “private attorney general,” or qui tam plaintiff, to recover half of gambling losses, with the other half going to the state. Six other states, and the District of Columbia, have similar laws allowing a third party to recover gambling losses-Georgia, Kentucky, Illinois, Massachusetts, Ohio and South Carolina. Humphrey’s complaint centers on pay games offered by CBS Sportsline.com, ESPN.com and SportingNews.com. All three companies declined comment. Humphrey said his message to the fantasy sponsors is “real simple-if you want to do it for fun, more power to you. If you want to gamble on it, comply with the gambling laws.” James Notis, one of the attorneys at Gardy & Notis handling the case, did not return calls seeking comment. Not ‘immoral’ Michael McCann, who teaches sports law at Mississippi College School of Law, does not think Humphrey’s suit will prevail. “Fantasy sports just don’t strike people as immoral. Even if his argument is technically correct, it lacks the moral weight that is so crucial in many other litigations,” McCann said. He added that the name of the game itself-fantasy-”suggests that it’s not real, that there’s an innocence to it.” Attorney Rudy Telscher of Harness, Dickey & Pierce in St. Louis recently won a case on behalf of a baseball fantasy league operator suing over the rights to use player statistics. Major League Baseball argued that fantasy leagues needed a license to use the information. But on Aug. 8, a federal judge ruled that fantasy baseball operators do not need licenses to operate such leagues. C.B.C. Distribution and Marketing v. Major League Baseball Advanced Media, No. 4:05-CV-00252 (E.D. Mo.). Telscher said that the ruling was a big win for fantasy operators, which would have had to shut down had the judge ruled otherwise, and for fantasy players, who may have had to start paying fees for player statistics. “I think a loss would have definitely crippled [the fantasy industry],” he said.

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