By Dr. Robert J. Romano, JD, LLM, St. John’s University, Senior Writer
As most sports fans are aware, the Monday Night Football game on January 2, 2023, between the Buffalo Bills and Cincinnati Bengals was suspended after Bills’ defensive back Damar Hamlin collapsed and went into cardiac arrest with 5:58 minutes remaining in the first quarter following a tackle of Cincinnati’s wide receiver Tee Higgins. The NFL subsequently announced that the game would not resume but would be cancelled altogether.[1]
A week later, on January 9, 2022, Simpson G. Turley filed a civil action against DraftKings, Inc., an online sportsbook that hosts a variety of fantasy sport competitions, in the United States District Court, District of Massachusetts. Mr. Turley claims he suffered damages, because DraftKings, rather than follow its own rules and regulations in situations where the NFL suspends or otherwise cancels a game, “arbitrarily” offered payouts to customers who led in certain contests, while at the same time canceling and refunding entry fees for other online gambling competitions.[2] Per his four-count complaint, Mr. Turley, a resident of the City of Buffalo, New York, claims the following causes of action: Breach of Contract, Violation of the New York General Business Law Section 349 (N.Y. Gen. Bus. Law Section 349), Violation of the New York False Advertising Law (N.Y. G.B.L. Section 350 et seq.) and Unjust Enrichment.[3]
The gravamen of the lawsuit centers around his allegations that at the time of the Monday Night game’s suspension, Mr. Turley, who had drafted multiple players to his fantasy football team from both the Buffalo Bills and Cincinnati Bengals player rosters, was ranked first in the DraftKings’ online gambling contest titled “NFL Showdown $20K Two Point Conversion”, which had a payout of $5,000.00 for the winner, while at the same time also being ranked second in the “NFL Showdown $15K Four-Point Stance” contest that comes with a payout $3,000. However, according to Turley, after the NFL suspended the game, DraftKings cancelled the two contests as they pertained to the Bills-Bengals game, and although all of the affected contestants’ entry fees were refunded, it never paid out the advertised winnings of $5,000.00 or $3,000.00 respectively to the first-place winners.[4] Turley, as clamed in his complaint, believes that he is entitled to those amounts based upon the following contest language:
Suspended or Shortened Games:
DraftKings uses official NFL statistics and only includes statistics from games NFL deems to be official. If the NFL declares a game ‘suspended’ then the statistics generated before the game is suspended will count in Game Sets containing said game. Any statistics generated on a later date when the game resumes will not be included.[5]
However, on January 6, 2023, the NFL, because the Bills-Bengals regular season game’s outcome would have no impact on which teams would actually make the playoffs, and that scheduling a day to complete it could possibly delay the start of the playoffs, decided to officially cancel the game altogether.[6] And, according to DraftKings’ Terms of Use, when any regular season game is cancelled by the NFL, its online gambling contests are subject to the following terms and conditions:
Cancelled, Postponed, and Rescheduled Games:
In the event that a game cancelled or postponed and rescheduled to a time outside of the original scoring period, DraftKings will cancel and refund all contests. If the game is rescheduled within the Scoring Period and this change is made less than twenty-four hours before the Game Sets lock, the game will be included in the Game Set and players listed to play in that game will be eligible to accrue points.[7]
Based upon DraftKings’ Terms of Use, although there may be some ambiguity within its language, odds are the Mr. Turley’s lawsuit will have a difficult time surviving a motion to dismiss or other defense presented by DraftKings. But even if the lawsuit does move forward and Mr. Turley gets his so called ‘day in court’, a jury or other trier of fact will be hard-pressed to award any monetary damages because of the circumstance surrounding his claim – an NFL game was suspended and then canceled because an athlete by the name of Damar Hamlin suffered a cardiac arrest and almost died on the playing field. Mr. Turley may have an ‘argument’ that DraftKings owes him $8,000.00, but I wouldn’t bet on him every being awarded such amount. In all reality, his federal lawsuit may be cancelled before it even begins.
[1] https://www.nytimes.com/2023/01/05/sports/football/bills-bengals-game-canceled.html
[2] Turley v. DraftKings, Inc. et al, Docket No. 1:23-cv-10054 (D. Mass. Jan 09, 2023). The matter was brought in the state of Massachusetts because as per DraftKings Terms of Use it is the exclusive jurisdiction and venue for proceedings involving any and all disputes, claims or controversies.
[3] Id.
[4] Id. at p. 16.
[5] Id. at p. 17.
[6] https://www.nytimes.com/2023/01/05/sports/football/bills-bengals-game-canceled.html
[7] Complaint at p. 17 and https://myaccount.draftkings.com/documents/us-terms-of-use
