Oh the games we humans play! Since the earliest times of human existence, we have sought competitive advantages in contests of strength, skill and luck. The caveman who could throw a rock the farthest was probably the Peyton Manning of his community. A method of determining which advantages fall within the rules of the applicable game, versus which edges offend our notions of fair play, however, continues to elude us. Does the use of an under-inflated football make any difference whatsoever?
On Wednesday, the Chicago Cubs played in their first post-season game in eight years. The Cubs, with the third-best record in baseball this season, played the Pittsburgh Pirates, the team with the second-best record, in a one-game wild-card playoff. Baseball fans have complained that a one-game playoff is unfair. Joe Maddon, the Cubs’ manager, prefers a best-of-three playoff. Channeling the recently-departed Yogi Berra, he said: “The only time you want a one-and-done is when you win that first game.” Of course, if Major League Baseball had not added a second wild card in 2012, the Cubs would not even have made the playoffs this year. What’s more “fair,” a one-game playoff or a three-game playoff? Five games?
On Monday, The New York Times and other media sources reported that a major scandal is erupting in the multi-billion- dollar fantasy sports industry. Two of the industry-leading fantasy companies released statements defending their business practices and integrity in response to allegations of what amounts to insider trading. Employees of the fantasy companies purportedly were placing bets using information not generally available to the public and supplied by other players. According to The New York Times, quoting a sports and gambling lawyer, “the single greatest threat to the daily fantasy sports industry is the misuse of insider information.” One industry participant said that this scandal may be a watershed moment for a sector that has resisted regulation.
So, the issue is whether information obtained by industry insiders gives them an unfair advantage in “virtual games” that are based on data from actual games.
What does any of this have to do with the financial services sector? Coincidentally, on Monday the United States Supreme Court declined to revisit a 2014 court ruling which made securities insider trading cases much more difficult to prosecute. The US Court of Appeals for the Second Circuit in New York had ruled that prosecutors needed to prove the tippee knew that the confidential information came from an insider and that the insider disclosed the information to obtain a personal benefit. It is not sufficient to simply show that a recipient of an inside tip traded on material nonpublic information about a company. Will the fantasy gaming industry, which historically has elected not to be regulated, choose to follow the ever-evolving rulebooks that the securities and financial services industries use?
Imagine if this same standard is applied in the fantasy gaming context. Presumably, if my cyber-nerd friend suggests that I “play” Aaron Rodgers in this week’s fantasy football game contest, I have no issue, unless I happen to know that my friend works at a fantasy sports gaming company and derives a personal benefit from disclosing such information. Wow. It’s not so easy determining how to assure fair and level playing fields in the games that we play.