New York's highest court heard arguments Tuesday on a question: Are daily fantasy sports like those run by DraftKings and FanDuel, which allow people to plunk down money to assemble personalized rosters of real players — then win or lose cash depending on how well they do — gambling? So tortured was the logic of those insisting on the negative, they may as well have been claiming a piece of bologna wedged between two pieces of bread is not in fact a sandwich.
The New York Constitution is crystal clear. It explicitly prohibits “pool-selling, bookmaking, or any other kind of gambling, except lotteries operated by the state” — a ban that, if it meant anything to legislators, would obviously cover daily fantasy. But it didn’t mean anything to them in 2016 when they OK'd it on the comical ground that it’s a game of skill, as though wagering $1,000 on the point spread is random but staking the same sum on how many TDs Daniel Jones will throw or how many yards Saquon Barkley will rush requires intense study and effort.
Now, as they defend the law, appeals lawyers working for New York state make a mockery of the constitution they swore an oath to defend.
And speaking of betting, state officials are soon set to double down in defense of another unconstitutional law, as pure, old-fashioned mobile sportsbook gambling — betting for or against teams — debuts in the new year. It was approved in this year’s state budget, resting on the fiction that it doesn’t violate a 2013 state constitutional amendment permitting casino gambling “at no more than seven facilities” because a bettor tapping his smartphone in Brooklyn or the Bronx is technically calling on computer servers that sit in those seven facilities. So they’re “at” the facilities even though they’re hundreds of miles away.
Memo to those who write our laws: If you don’t like the state constitution, change it. But as long as it exists, try not to treat it like toilet paper.
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