The Superficial Reality of Spotlight's Success

By Kelli Jones

After its success at the Oscars, Spotlight has once again drawn attention to the systematic cover up of child abuse within the Catholic Church, particularly highlighting the courage and persistence of journalists at the Boston Globe. However, less than a week after the awards ceremony, a new legal decision regarding child sex abuse in Philadelphia has failed to file criminal charges for the covering of abuse of hundreds of child victims. The two Bishops on trial for purposely concealing evidence of abuse face no criminal consequences as either the statute of limitations has expired, or the accused abusers are deceased. While members of the Spotlight team should be highly commended in their actions, which drew attention to the shocking systematic procedures of the Catholic Church, the case in Philadelphia once again highlights that legal reform is ultimately needed.

The now public Grand Jury report states that two Bishops in Philadelphia covered up the sexual abuse of hundreds of children, by over fifty members of the church, across four decades. The FBI’s Behavioral Analysis Unit assessed the actions of the Bishops at the Diocese of Altoona-Johnstown, and their “conclusions were blunt but exact. James Hogan and Joseph Adamec enabled the priests of the Diocese to sexually abuse children.” In a process that resembles the account of the Boston diocese shown in Spotlight, Priests who were reported to the church for sexual abuses including rape were often removed for ‘treatment’ and subsequently relocated to a different parish. Instead of reporting the accusations to legal authorities, the Bishops kept the information within the church, using its own system to reportedly attempt rehabilitation and reintegration into service. The report even found that Bishops asked the accused Priests if they felt they needed this help, effectively allowing them to judge their own case. The public image of the Catholic Church was the main priority for the Bishops, rather than the protection of children within its care.

A more shocking revelation of the report is that at times when members of the community came forward to the police, they took no action further than a referral of the matter back to the church to deal with internally. One church official told the jury that church officials held such power within the community that “the police and civil authorities would often defer to the diocese.” This is a process unheard of in any other area of the justice system, and one that undoubtedly neglects to achieve justice or ensure protection for the child victims involved. The report found that the “men took actions that further endangered children as they placed their desire to avoid public scandal over the wellbeing of innocent children. Priests were returned to ministry with full knowledge they were child predators.” Common Pleas Judge Patrick Kiniry, for example, had a meeting with Bishop Hogan after allegations were made against a priest in his jurisdiction. When asked about Hogan’s decision to move the Priest to another location, Judge Kiniry replied “You have to understand, this is an extremely Catholic county…Back then the Diocese moved the problem, that’s just how it was.” Yet the evidence presented, and the lack of conviction for a Bishop who orchestrated the cover up, suggests that this is how it remains.

The main obstacle to securing a prosecution is the statute of limitations, which ensures that prosecutors can only charge a criminal within a given time frame after the crime. In general, this aims to ensure that evidence does not devalue over time and to motivate victims to come forward earlier to prevent further abuse. Former federal prosecutor Richard E Myers also argues “If you allow a case to get really old, it skews heavily in the prosecution’s favor...The defense is more likely to lose witnesses than the prosecution." Yet within the Philadelphia case alone, evidence and testimonies regarding hundreds of individual victims were presented, a quantity difficult to dispute. The idea that justice can be achieved decades later for a criminal charge such as murder is also widely accepted, as no state places a statute of limitations on such a prosecution.

In the case of child victims therefore, the statutory period appears arbitrary and neglectful. As children, many of the victims understandably don't feel able to come forward and can be too young to identify that a crime or fault is present. The Grand Jury report states “the victims of sexual abuse often engage in delayed reporting if they report at all. The reasons for delayed reporting are numerous and understandable…Victims find themselves alive and walking but feeling dead or dying.” In the Philadelphia case, the victims were required to come forward up to twelve years after coming of age however the report “detailed an account of a 70-year old victim who came forward to report the devastating trauma of their youth.” The difficulty victims face in speaking out, especially involving an institution such as the Catholic Church, which has a strong voice within the community, cannot be underestimated. Removing, or considerably extending, the statute of limitations is an essential step to ensure that those who do find the courage to speak out receive full justice, and prevent future child abuse.

Ultimately, the statute of limitations must be reconsidered, not merely in Philadelphia but nationwide, as it places an arbitrary time frame on the suffering that victims face. This requires legislative and legal action, which will undoubtedly take time that unfortunately not all victims have. A Bill recently passed in Oregon for example, eliminates the statute of limitations for sexual assault crimes. It is expected to be signed into law by Governor Brown shortly, and would set a hugely significant precedent. Some have also suggested a temporary lifting, particularly in light of cases regarding the Catholic Church, in order for prosecutions to occur that can break the cycle of the systematic concealment of abuse. Philadelphia Attorney General Kathleen Kane commented, “Victims need to be heard. Abolishing this statute would allow these predators to be held accountable until the last day of their lives, because these victims live with it until the last day of their lives.” In the more immediate future, the report emphasizes the need for members of the church and law enforcement to pursue, and investigate all accusations accordingly. The Grand Jury acknowledged that the “report details incidents of law enforcement officials falling short of their oaths,” and urged officials to continue the investigative work that was able to bring the Bishops to trial, even if no prosecution was possible. The continuing action of law enforcement and the actions of legislators is vital to protect the most vulnerable in society who have, for too long, been grossly violated and unprotected by the laws that should serve them. Until these changes occur, the justice system is tragically failing precisely those who need it most.  

Apple's Fierce Protection of its Designs Against Competitors and the Government

By Emily Wilk

As the battle between the federal government and Apple heats up over the company’s encryption of iPhones after the San Bernardino shooting, observers should not forget the tremendous effort that goes into developing smartphone technology. Top tech competitors Apple and Samsung have fought on the market and in the courtroom to promote and protect their unique products. It is no surprise Apple CEO Tim Cook strongly objected when ordered to help the FBI break into the iPhone belonging to one of the San Bernardino shooters. Calling it the “software equivalent of cancer,” Cook plans to “take this issue all the way” to the Supreme Court. Apple is certainly prepared to do so given the lengths they have been willing to go to in the past to protect the originality and integrity of their products.

In the past few years, the demand for smartphones has risen dramatically. Parents give them to children to keep track of them. The elderly trade in their corded home phones to be able to communicate with their grandchildren who live halfway across the world through FaceTime or Skype. None of this could be possible without the unprecedented innovation that improves the accessibility of these technologies.  The intense competition in this growing market has led many smartphone hardware and software companies to get caught up in expensive and drawn out infringement cases in their efforts to lead the industry.

iPhones dominate much of the smartphone market. However, Samsung has put up a fight. The company’s continual efforts to put out new products and software interfaces in an attempt to compete with Apple has put them at risk of overstepping the patented boundaries put in place by the very company they are trying to challenge.

The United States Trade and Patent Office, USTPO, defines a patent as a grant of property rights to an inventor for an idea, utility, design or plant.  Patents give an inventor “the right to exclude others from making, using, offering for sale, or selling” their idea.  Anyone can apply for a patent, but the process is expensive, lengthy and not always fruitful. This basic idea comes straight from the Constitution, which empowers Congress “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

The Apple-Samsung saga over the basic protection of property rights is is long and complex. In 2012, Apple sued Samsung over the uncanny similarities between the Galaxy and iPhone/iPad patented software. The similarities included Apple’s slide-to-unlock, autocorrect and quicklink features. Apple sought $2.5 billion for their loss in profits due to Samsung’s newest release of the Galaxy S III, one of the largest requests for damages in the history of patent cases (Silicon Valley). After Apple had filed, Samsung alleged that Apple had infringed upon their patents as well, which created a storm of infringement cases later discussed in the San Jose Federal Court.

Just last year, the U.S. Court of Appeals for the Federal Circuit ruled in a split 2-1 decision that “Samsung’s infringement harmed Apple by causing lost market share and lost downstream sales and by forcing Apple to compete against its own patented invention” (The Wall Street Journal). However, far from the $2.5 billion initially requested, Apple won $119.6 million, which is pocket change. Moreover, the ruling did not force Samsung to remove the disputed features from their phones.

“The right to exclude competitors from using one’s property rights is important,” the Federal Circuit ruled in the Apple-Samsung case. “And the right to maintain exclusivity -- a hallmark and crucial guarantee of patent rights deriving from the Constitution itself -— is likewise important.” When it comes to the specific details of a software that turns a company profit, the patent protection rights of these ideas are vital in keeping not only the integrity of company, but the loyalty of its consumers. The importance of these details can lead a company to be strongly protective of its software against competing companies and, as we are currently seeing, the government.

The PLSA's Recent Law School Admissions Seminar

By Martin M. McSherry

Last week, the GW PLSA hosted a free law school admissions seminar featuring a representative from Blueprint LSAT prep. The event is just one example of the ways the PLSA can help students at all points in their college careers determine if they want to go to law school and how to navigate the long, complex application process.

Blueprint’s Natalie Knight laid down some hard facts about applying to law school, the most important of which is that one’s GPA and LSAT score are the major determining factors in admissions. However, a bad freshman year and one or two Cs isn’t the end of the line for an aspiring law student. Using real-life examples, Knight showed that one applicant with a 3.9 GPA and a mediocre LSAT score went to a law school ranked 75th by US News and World Report. Another student with a 3.4 GPA and a 179 on the LSAT ended up at Harvard Law School, which people tell me is a reasonably good institution. Moreover, someone with numbers slightly below his or her dream school’s median statistics shouldn’t give up all hope. Knight offered key strategies for writing a persuasive personal statement, getting the best letters of recommendation and explaining mitigating circumstances in an addendum.

In addition to practical information about law school applications, all students in attendance received a substantial discount on LSAT prep courses from Blueprint. This is just one of many examples of how the PLSA works to help people of all walks of life pursue their goals. Whether your parents are lawyers and can give you all the advice you need about following in their footsteps or you’re a first generation college student, the PLSA offers guidance and community from your freshman orientation to your first acceptance letter.

Remembering Justice Antonin Scalia

By Martin M. McSherry

On Saturday, news broke of the passing of Supreme Court Justice Antonin Scalia. Scalia, appointed by President Ronald Reagan in 1986, was the Court’s longest-serving member. An incredibly influential legal figure, his tremendous intellect and vivid writing style contributed to what some call a conservative legal renaissance.

For students at GW, the most politically active campus in the country, it’s easy to get swept up in the hugely consequential politics of Scalia’s passing. That isn’t necessarily a bad thing; it might even be a dereliction of our civic duty not to participate in the debate surrounding a lifetime appointment to the highest court in the land. It would, however, be a shame if that didn’t occur alongside a proper reflection on Justice Scalia’s life, relationships and contributions to the legal field.

Almost a year ago to the day, Scalia appeared in GW’s own Lisner Auditorium alongside his colleague, Justice Ruth Bader Ginsburg. Ideological opposites, the pair highlighted the importance of cultivating friendships with people who hold different views. "Call us the odd couple," Scalia said at the event. "She likes opera, and she's a very nice person. What's not to like? Except her views on the law."

That he said this at GW is significant. In such a politically-charged atmosphere, especially during a presidential election year, their friendship is a model we should all seek to emulate. The importance of having friends with different perspectives and opinions cannot be understated. Forming these relationships early on not only strengthens and develops one’s own views, it builds essential skills to succeed in the future. Scalia’s friendship with Ginsburg in the face of major disagreements that affected millions of lives demonstrates how one can be professional, kind and effective in a polarized environment with high stakes. Learning how to do this properly is perhaps one of the best skills one can learn at college, especially at GW.

After that event, Scalia posed for a photo with GW students Thomas Falcigno, Tony Hart and Sydney Rachael Levin-Epstein. “I'll never forget when he turned his head to us, realizing that he would probably make our day by taking a picture with us, and walked over,” Falcigno said of the encounter. “He took the time to ask us questions about our lives, what goals we're working towards, and how we plan on accomplishing our dreams,” Levin-Epstein reflected. “Justice Scalia leaves a legacy that we must refuse to ignore… [He] taught me how to work with others that I disagree with for the better of all,” she added.

GW students Thomas Falcigno, Tony Hart and Sydney Rachael Levin-Epstein pose for a picture with the late Justice Antonin Scalia last year after an on-campus event.

Scalia was the first Italian-American Supreme Court Justice in our nation’s history. He was confirmed by the Senate unanimously. Scalia forever transformed the Supreme Court’s oral arguments by becoming an active participant with his often rigorous lines of questioning for lawyers. He might be best known for writing the majority opinion in the Court’s landmark ruling in District of Columbia v. Heller, which held that the Second Amendment protects the right to posses a firearm for self-defense within the home. More recently, he wrote a stinging dissent in Obergefell v. Hodges, which granted the right to marry for same-sex couples, calling it a "threat to American democracy."

However, in spite of all of this, liberal firebrand Ruth Bader Ginsburg yesterday called Scalia her “best buddy” and a “treasured friend.”

The End of Daily Fantasy Sports in America?

By Ryan Niksa

To say that discussing the legality of daily fantasy sports (DFS) affects me on a deeply personal level would be hyperbolic, but it is a topic that I certainly can relate to. While I do not play daily fantasy sports, an accelerated version of traditionally season-long fantasy sports that is instead conducted over a week or single day of competition, I have participated in fantasy sports since my freshman year of high school and have not stopped since. I recently won my fantasy football league, am currently locked in a tight playoff race in fantasy basketball, and in a few months I will be looking to draft Mike Trout, Giancarlo Stanton, or Bryce Harper in fantasy baseball. My hobby, however, has become the focal point of a legal firestorm encompassing media conglomerates, professional sports organizations, state attorneys general and federal law, sparking a debate on what actually constitutes illegal gambling in the United States.

Understanding the workings of daily fantasy is relatively simple given its close resemblance to traditional fantasy sports. In DFS, a participant selects players with fixed prices attached to them and builds a team that qualifies under the “salary cap” set by the contest. Like traditional fantasy, the selected players, and collectively, the fantasy team, score points based on the performance of those players. Whoever picks the best team and consequently gains the most points wins the cash prize amount for that specific contest. There are also consolation prizes for second, third place, etc. Companies like DraftKings and FanDuel acquire revenue from the entry fees that contestants must pay to assemble a team; these can range depending on the sponsored competitions from twenty-five cents to thousands of dollars. The operators take a predetermined fee percentage which usually hovers around ten percent, while allocating out the remainder of the entry fee to fund cash prizes.

Daily fantasy sports have been argued by some to be a more aggressive version of traditional fantasy sports. Their rapid rise to prominence certainly supports that viewpoint, resembling more of an explosion in growth than a steady ascendance. The two companies that together own 95% of the North American DFS market today, New York-based FanDuel and Boston-based DraftKings, were founded in 2009 and 2012 respectively, shortly after the inception of daily fantasy sports in 2007.  Through the absence of state or federal regulations, FanDuel and Draftkings gained mainstream popularity, not only with fans and fantasy aficionados, but media organizations, venture capitalists, and professional sports organizations. The rival startups took control of the market share over this last NFL offseason when DraftKings and FanDuel raised $426 million and $363 million in their respective investment rounds- both companies are now both valued at over $1 billion.  The DFS industry today possesses 57 million players (and growing) in North America alone, and is valued conservatively at $2.6 billion. Some of the media conglomerates and professional sports associations that currently have equity stakes in FanDuel or Draftkings: the National Basketball Association, Major League Baseball, National Hockey League, Time Warner Cable, 21st Century Fox, Comcast, and Major League Soccer. On top of those investment partnerships, ESPN is currently locked in a three year, $250 million advertising deal with DraftKings, and out of 32 NFL teams, 28 currently have sponsorship deals with FanDuel or DraftKings. [1]

The multibillion dollar industry that is now DFS emerged from a loophole in the Unlawful Internet Gambling Enforcement Act of 2006 (UIGEA), a piece of legislation sponsored by former House Banking Committee member and Iowa Congressman Jim Leach in 2005. The law seemed long overdue for the federal government, representing the first major legislation against suspected illegal betting practices since the Federal Wire Act of 1961. With the hopes of outlawing illegal gambling online, the UIGEA “modifies existing prohibitions against interstate gambling to prohibit the use of a communication facility to transmit: (1) bets or wagers; (2) information assisting in the placing of bets or wagers…” and “prohibits any individual from accepting, in connection with the placing of bets or wagers to or from the United States: (1) credit, or the proceeds of credit; (2) electronic funds transfers; (3) checks, drafts, or similar instruments, etc.” [2] To conclude, the UIGEA is ambiguous on identifying illegal internet gambling, besides explicitly mentioning online sports betting in later sections, and leaves states to interpret what constitutes illegal gambling with their own gaming laws.

The UIGEA was enacted to directly place the burden on financial institutions to develop policies and procedures restricting transactions and funding related to illegal online gambling. The 2006 law would force online poker to close shop in North America, but it also exempted multiple gaming activities from federal regulation, including horse racing, state lotteries, and fantasy sports. The law deemed these were games of skill instead of chance, actually benefitted states and businesses, and served more as entertainment products than gambling activities that needed regulation. Daily fantasy sports, as games of skill and exempted from both the UIGEA and Federal Wire Act, were illegal in only five states before this year’s NFL season began. Considering the uncertain legal future of DFS now, however, it can be said that its aggressive ascendance in popularity and exorbitant growth in capital over the summer of 2015 led to greater suspicion. Meeting the new capital demands pressured FanDuel and Draftkings to recruit new customers with aggressive marketing campaigns totaling $33 million during the first two weeks of the season. [3] In response, many state  officials and federal agencies wondered how the industry grew so rapidly and could remain unregulated for so long.

In late September, allegations of insider trading and fraud rocked the DFS industry. Ethan Haskell, a content manager at DraftKings, inadvertently released data pertaining to fantasy football lineups labeled “proprietary information” that could not be viewed by the public. Both DraftKings and FanDuel were forced to answer for their corporate integrity, however, when it was revealed that Haskell participated in and finished second out of 229,885 entrants on a FanDuel competition later that day, winning $350,000. [4] While an internal review vindicated Haskell of what many sports and gambling lawyers called “insider trading,” Haskell and other employees from FanDuel and DraftKings confirmed that they participated in contests at each others’ websites numerous times before. News organizations, most notably The New York Times, became more interested in how far DFS was pushing its legal exemptions, and soon the Federal Bureau of Investigation (FBI) launched an inquiry examining if DraftKings and FanDuel encouraged and accepted deposits and bets from states where the contests were prohibited (a violation of the UIGEA and interstate gambling laws), and whether their employees may have used inside information not available to the public to win lucrative cash payouts. [5] Amidst the FBI’s investigation, Nevada, in mid-October, brought DFS under closer scrutiny after ruling that it constituted illegal gambling under state law, reasoning that it involved “wagering on the collective performance of individuals participating in sporting events,” and forcing DFS companies to receive a license to operate in the state or cease operations in the state immediately. A month later, New York Attorney General Eric Schneiderman declared DFS to be considered illegal sports betting in the state, citing the New York penal law’s set definition of gambling where "a person engages in gambling when he stakes or risks something of value upon the outcome of a contest of chance or a future contingent event not under his control or influence.” By early November, Schneiderman filed dual cease and desist orders against FanDuel and DraftKings, asking for an injunction to stop them from operating in New York. Since Nevada and New York decided that DFS should be categorized as illegal gambling under state law, other states have followed suit: Illinois, Vermont, Texas, Mississippi, and most recently, Hawaii have all declared that DFS should be considered illegal gambling when taken to court, while California, Pennsylvania, Florida, and Massachusetts have renewed debate on enacting new laws to regulate the DFS industry. [6]

The influx of litigation has sent the DFS market reeling, leaving its two leading companies particularly damaged. DraftKings and FanDuel have already decided to leave certain states in fears of being heavily regulated or outlawed entirely, and have been forced to lay off employees, lower prize pool amounts, and drop sponsorship deals. A decline in new users and sponsors and subsequent spending on expensive legal representation are not DFS’s worst problems, as DraftKings and FanDuel both risk losing large percentages of their current user base with states like Texas, New York, and Illinois recently considering DFS to be illegal gambling. According to sports research firm Eilers and Krejcik, with Texas, Illinois, and New York accounting for more than 5 percent, 6.7 percent, and 12.8 percent of the two companies’ customer bases respectively, both companies stand to lose a combined $50-60 million annually. [7] A possibly crippling blow came last Friday, when the payment processing company that handles a significant number of transactions for FanDuel and DraftKings, Vantiv Entertainment Solutions, notified the operators that it would “suspend all processing for payment transactions” related to daily fantasy sports in the United States and its territories by the end of February, citing the recent legal siege placed against the DFS industry as its reason. [8] Viewing the legal battle against DFS, two questions now instantly come to mind: should DFS be classified as illegal gambling under federal and state law, and perhaps more important, is banning DFS the best solution, or should there be a path towards regulation instead?

Debating on whether DFS is a game of chance or a game of skill is difficult because a game could feasibly have chance, skill, or both and still be considered a gambling or non-gambling activity - state laws are left to determine if the activity is considered illegal gambling. There are facts to support both sides of the argument - supporting the twelve state attorney generals who have now deemed DFS to be illegal gambling, a player is technically paying to participate in the game and betting on the performances of players and the outcome of an athletic event that is beyond the player’s control, which legally constitutes sports betting. Skeptics of the skill argument have also pointed to the short-term aspect of DFS that has now dominated fantasy sports, which further diminishes the influence of skill with more immediacy and variance in results and less opportunities to display a competitive advantage. They also cite how online poker and DFS are intertwined now more than ever: operators of online gambling sites have begun investing in fantasy sports, and some of DraftKings’ senior managers come from online gambling companies or are former professional poker players. Even certain poker terms, including “sharks” (expert players), “minnows” or “small fish” (inept players who lose small), and “whales” or “big fish” (bad players who lose big), have infiltrated fantasy sports, especially the DFS industry. While there is merit to all of these points supporting DFS’s categorization with online poker as illegal gambling, as a person who plays fantasy sports, I can also contest that DFS is more skill-based than most realize. While skeptics point to how DFS’s sharks do not gain a competitive advantage through skill and practice but through barraging the same contest with hundreds or even thousands of entries, increasing their winning probability and their return on investment (ROI), there is a noticeable correlation between participant’s proficiency in economics or mathematics and their success in DFS. The elite cadre of DFS players have developed complex statistical models and designed software programs that automatically analyze thousands of players at once, which you will not find in poker or the lottery. Michael Mauboussin concluded that a key method to discern if an activity could be determined predominantly by skill over chance and vise-versa is finding if one could lose the said game completely on purpose. While every card in poker or blackjack could lead to the winning hand and every number in the lottery could lead to the winning ticket, with both activities so dominated by chance, there are certain athletes in professional sports who are statistically proven to perform better and worse than others - not all players can plausibly contribute to the winning DFS roster, and for me, users could intentionally “tank” their fantasy sports lineups. [9]

The infiltration of these aforementioned “whales” and “sharks” in daily fantasy sports, for me, is the more serious problem, and relates to the second question regarding the regulation of DFS. The transfer of unchecked power to sharks in online poker contributed to its demise in 2011, and we now see the same problem in the DFS industry today. The infiltration of whales and sharks into the DFS industry again relates back to the market’s aggressive ascendancy and the intense pressure for FanDuel and DraftKings to meet their new investment valuations. For both companies, creating contests with million dollar prizes is the optimal way to recruit new players and new entries, which results in the two companies competing with each other for customers, through aggressive marketing campaigns and progressively increasing the cash prize amounts of their contests. As we know, DFS companies like FanDuel take a “rake” or percentage of the entry fee, and use the rest of the fee for the cash prize, so the only way for these DFS companies to increase the cash winnings, with such high acquisition costs, is to obtain a steady flow of new entries every day. The two companies soon discovered, however, that instead of trying to recruit new players, they could allow the players they already have to enter as many as thousands of entries for the same contest. Sharks were thus born in the DFS market and the need for supply to meet demand, as FanDuel and DraftKings found high-rollers to be the answer to their worries: if they could persuade their high rollers to enter several hundred or even several thousand entries apiece, then the demand for new users decreases dramatically in funding these multi-million dollar contests. The underlying issue: this leverages an unstable amount of power towards the high rollers, whose success has now afforded more entries to further sway the odds in their favor at the hands of minnows and whales.

Power now rests on a powerful oligarchy of players who control a competitive advantage in the most lucrative DFS contests. With no regulations, these sharks are also free to practice “bumhunting,” a poker term describing high rollers targeting novice players and exploiting them for their money. While poker deters such behavior, DFS companies do not, as the inexperienced players instantly aspire to play the million dollar challenges, unaware that the sharks have a competitive advantage. The competitive imbalance that heavily favors the sharks inevitably creates a massive disparity in cash winnings and losses between sharks, minnows, and whales. According to data obtained by the New York Attorney General’s office, between 2013 and 2014, 89.3 percent of players had a negative return on investment in DraftKings. A recent McKinsey study showed that in the first half of the 2015 Major League Baseball (MLB) season, 91 percent of the prize money was won by just 1.3 percent of the players. [10] Delving into the disparity related to the 2015 MLB first-half season statistics, the top 11 players paid on average $2 million in entry fees and profited $135,000 each, accounting for 17 percent of all entry fees. The rest of the top 1.3 percent of players paid on average $9,100 in entry fees and profited $2,400 each, for an extremely impressive 27% ROI, accounting for 23 percent of all entry fees and 77 percent of all profits. The top 1.3 percent of player’s winnings magnify how important the fish are to the DFS economy and how much the whales and minnows actually lose. The meager 5% of players who comprised the whales lost $1,100 on entry fees of $3,600 on average (-31% ROI), while the minnows, who comprised 80% of the bettors, lost $25 on average entry fees of $49. The big fish sustain the DFS economy, as each loses on average between $3000 and $4000 per year and usually represents 60-75% of the losses. The losses provided by the fish are divided between the winners and providers, so the fish help provide the remaining profit for DFS companies with high rollers providing the majority of entries but winning with such great returns on investment, allowing DFS companies to continue creating million dollar contests for high rollers and more unaware big fish to squander their money. [11]

Overall, Daily Fantasy Sports is certainly a game of skill - a game of too much skill, where almost a decade of no federal and little state regulation has allowed power to be transferred to an elite group of players. Another troubling aspect of the infiltration of sharks and fishes has been the rise in what one could identify as gambling addictions, particularly for high rollers, who now consider their fluctuating winnings to be a primary source of income and playing DFS to be a full-time career. To enter hundreds or thousands of lineups a day and perform well, these high rollers need to invest in DFS as a full-time job, with the most successful players investing 10-15 hours a day keeping track of their contests and forging new rosters. I believe that like the lottery, however, the DFS industry is less ruinous to society than online poker, and could become a valuable source of state and federal tax revenue like the lottery today - I am against outlawing DFS and instead a proponent for keeping DFS legal but heavily regulating it. Massachusetts might have the necessary blueprint to effectively regulate the DFS industry because its plan discusses the creation of much needed safeguards. Massachusetts attorney general Maura Healey has discussed regulations like only accepting players who are 18 and older, limiting abusive practices by gamblers, setting deposit limits and not marketing to those who identify themselves as having gambling problems, and prohibiting DFS companies from advertising or promoting themselves at high schools and universities. [12]

To decrease the viability of sharks in the DFS industry, however, there needs to be drastic reform in setting regulations followed by everyone, from the DFS company employees to the high rollers. Some possible solutions include limiting the number of entries a high roller could enter each day, and protecting DFS novices by preventing high rollers from participating in smaller cash prizes. To prevent future allegations of DFS “insider trading,” employees must be prohibited from playing any contests, and must be stricter in enforcing against tools like computer scripts and optimization software that high rollers utilize to add last minute entries that adjust to sudden player injury news, to eliminate unfair competitive advantages. All these solutions assume that the DFS industry can weather and recover from the growing legal and legislative assault. If they can, they will need to make serious alterations that place power back to the companies, and that starts with stricter state and federal regulation, including a reworking of the UIGEA. We have witnessed the DFS industry after eight years of minuscule government regulation and the unbridled ambition and poor business practices that have resulted: if DFS is not careful, it will travel down the same path as online poker and reach the same destination: an alienated industry on North American soil with little sympathy or protection.

References:

1. Alba, Davey. “DraftKings and FanDuel Scandal Is a Cautionary Startup Tale.” Wired. Conde Nast, 09 Oct. 2015. Web. 01 Feb. 2016.

2. Federal Deposit Insurance Corporation. “Unlawful Internet Gambling Enforcement Act of 2006.” FDIC. Financial News, 2010. Web. 01 Feb. 2016.

3. Montgomery, Mike. “The FanDuel DraftKings Scandal Shows the Risk Of Building Businesses In Legal Gray Zones.” Entrepreneurial Section. Forbes Magazine, 18 Oct. 2015. Web. 01 Feb. 2016.

4. Drape, Joe and Williams, Jacqueline. “Scandal Erupts in Unregulated World of Fantasy Sports.” Sports Section. The New York Times, 05 Oct. 2015. Web. 01 Feb. 2016.

5. Drape, Joe and Williams, Jacqueline. “Fantasy Sports Said to Attract F.B.I. Scrutiny.” Sports Section. The New York Times, 14 Oct. 2015. Web. 01 Feb. 2016.

6. Grove, Chris. “DFS StateWatch: Monitoring Daily Fantasy Sports Action In State Government.” Legal Sports Report, 28 Jan. 2016. Web. 02 Feb. 2016.

7. Drape, Joe. “Payment Processor to Stop Working With Daily Fantasy Sports Clients.” Sports Section. The New York Times, 29 Jan. 2016. Web. 02 Feb. 2016.

8. Drape, Joe. “Payment Processor to Stop Working With Daily Fantasy Sports Clients.” Sports Section. The New York Times, 29 Jan. 2016. Web. 02 Feb. 2016.

9. Chemi, Eric and Wells, Nicholas. “So is daily fantasy gambling or not?” CNBC, 10 Nov. 2015. Web. 02 Feb. 2016.

10. Brustein, Joshua and Boudway, Ira. “You Aren't Good Enough to Win Money Playing Daily Fantasy Football.” Businessweek. Bloomberg Magazine, 10 Sept. 2015. Web. 02 Feb. 2016.

11. Miller, Ed and Singer, Daniel. “For daily fantasy sports operators, the curse of too much skill.” Sports Journal. Sports Business Daily, 27 July 2015. Web. 03 Feb. 2016.

12. Henning, Peter. “Daily Fantasy Sports Sites Face Challenges, and Options.” DealBook. The New York Times, 23 Nov. 2015. Web. 03 Feb. 2016.

Review of Friedrichs v. California Teachers Association - Union Case Before Supreme Court

By Brett Mittler

Friedrichs v. California Teachers Association

Is it fair to have to shell out any form of dues to a union whose views you do not agree with? Is it fair that they should collectively bargain on your behalf without your consent? The Supreme Court is set to rule on these very questions this term in Friedricks v. California Teacher’s Association, a case that could have tremendous consequences for the ongoing debate over union practices.

The Petitioners, a small group of public school employees, argued that the law set by Abood v. Detroit Board. of Education, 431 U.S. 209 in 1977 unfairly allowed for unions to become the exclusive bargaining representative for the school district. This led way establishing an “agency shop” agreement, which means that a school district may require an employee to join the union or pay the equivalent of dues to the in the form of a “fair service fee.”

We eagerly await the results of Friedrichs v. California Teachers Association that was heard before the Supreme Court in early January.

The question presented to the Court was: (1) Whether Abood v. Detroit Board. of Education should be overruled and public-sector “agency shop” arrangements are invalid under the First Amendment; and (2) whether it violates the First Amendment to require that public employees affirmatively opt-out of subsidizing nonchargeable speech rather than to affirmatively consent?

CASE BACKGROUND

For nearly forty years, it has been settled that, although public employees who do not join a union cannot be required to pay for union related activities, they can be charged an “agency” or “fair share” fee. This is to cover the costs that the union incurs for that industry, for example collective bargaining. It may be likely after hearing the arguments that even the more conservative Justices appeared ready to overrule the 1977 decision and strike down these fees.

The First Amendment prohibits unions from compelling non-members to support activities that are not exclusively devoted to negotiations or contract administration. Unions must send notices to all non-members laying out the breakdown of chargeable and non-chargeable portions of the fee. As it currently stands, to avoid the non-chargeable fee the burden falls on the non-member to affirmatively opt out each year. Most individuals simply do not remember to do so and it should not fall on the average citizen to opt out; it should fall on the unions to not take advantage of ordinary citizens.

This case had been argued at the district court, which affirmed the precedent set in Abood v. Detroit Board. of Education. It has also been affirmed by the U.S. Court of Appeals for the Ninth Circuit.

ARGUMENT

The Justices seem to spend almost no time on the main issue before the court, that is whether requiring non-union members to pay a fee violates the FIrst Amendment. Instead, they seemed concerned that if the petitioners had a strong legal argument, the Court should still rule against them because of a doctrine known as “stare decisis.” This doctrine counsels the Court not to overturn a prior ruling unless there is a compelling reason to do so. The liberal Justices seem to understand the merits of Friedreichs’ case.

Overturning the previous opinion would have far-reaching consequences. Michael Carvin, who argued on behalf of Friedrichs, was told that the unions have entered into thousands of contracts that govern millions of employees, and overturning Abood would disrupt those contracts.

The respondents argued that there has been a long history of labor unrest in California since the 1960s and government involvement is crucial to fulfilling the state’s need for workplaces to run smoothly. They argued that the fees were necessary for them to to prosper and survive. The unions are trying to avoid the problems of a “free-rider,” but by charging the fees they are forcing those people to become a “compelled rider.”

This question was put to rest when the petitioners said that there are currently twenty-five state that outlaw these fees and they operate just fine. Furthermore, they pointed out that unions representing federal employees do not charge such fees.

We will know more in a few months when the Justices hand down their ruling. Until then, we eagerly await their decision.

Is there Criminal Hypocrisy in Western Foreign Policy?

By Kelli Jones

In the midst of Middle East conflict, liberal democracies have been quick to condemn violence and human rights violations perpetrated against increasingly horrific numbers of civilians. In Yemen, the humanitarian crisis continues to escalate as Saudi Arabia insists its air strikes are legal and consistent with international law. On this premise, the UK has continued to provide the dictatorship with military arms, accompanied by U.S. endorsement of Saudi action in Yemen. However, on January 17th, a Yemeni hospital whose coordinates were provided to the Saudi Arabian government was directly hit during airstrikes, calling into question the legality of international policy towards Yemen amid cries of international war crimes.

The UK has maintained close relations with Saudi Arabia for decades, and since the 1960s the dictatorship has been a major buyer of UK arms. Saudi Arabia, which has been conducting military operations in Yemen since March 2015, is widely criticized for oppression of women and has held mass beheadings in recent months. Its main focus in Yemen is the reinstatement of President Abdu Rabu Mansour Hadi, in the face of rebel forces. Yet this goal neglects to tackle the deeper political and humanitarian crisis in Yemen, and the human rights and international law violations conducted by Saudi Arabia appear numerous. While maintaining its position as the biggest buyer of UK arms, Saudi Arabia began bombing Yemen with tactics that have been accused of purposely, and illegally, targeting horrifically high numbers of civilians. The UN reported that an estimated 21.2 million people in Yemen, 82% of the population, now require some form of humanitarian protection or assistance. Yet regardless of the moral and political arguments against countries supporting Saudi Arabia, the legal restrictions surrounding UK arms deals have been disobeyed on all domestic, European, and International levels.

Domestically, the Campaign Against Arms Trade (CAAT) has proposed legal action against the UK government with regards to arms sales worth £5.6 billion to Saudi Arabia since David Cameron became Prime Minister. Amnesty International argued the UK ‘fueled this … conflict through reckless arms sales which break its own laws.’ The UK has insisted the legality of its actions, yet its own Committee on Arms Export Controls has not met since before Saudi Arabia began airstrikes last March. The UK has also heavily emphasized that it is aware of no certain evidence of criminality, ignoring the provisions within its laws for the potential of arms sold being used in war crimes, a potential clear within Saudi Arabia. As far back as August 2015 for example, there are reports of the direct bombings of schools that were still in use. The fact that some were directly hit on more than one occasion implies their status as a target.

A house destroyed by Saudi-led airstrikes in the Yemeni capital.

Wider European legal standards also suggest illegality in the UK’s actions. Within Article Two of the EU Common Council’s position on arms sales, the criteria for arms export licenses require ‘respect for human rights in the country of final destination as well as respect by that country of international humanitarian law’, a requirement undoubtedly violated by Saudi Arabia given the domestic situation and consequences for the vast majority of Yemeni citizens. In response to the humanitarian needs in Yemen, the European Union reported recommendations in 2015 for the region including investing in civil institutions and the legal structures in order to re-establish peace and law of order, action far from the supply of missiles being pursued by the UK. The British Foreign Secretary, Phillip Hammond, has insisted there is no evidence of humanitarian law violations within Yemen, while the EU gave €37 million in humanitarian aid to the country in 2015.

Internationally, many have accused Saudi Arabia of committing numerous war crimes, and therefore the US of supporting a regime carrying out such crimes, and the UK of supplying them with the resources to do so. Amnesty International claim to have knowledge of at least four incidents where air strikes in Yemen have been targeted at domestic households that had no evidence or suggestion of being used for military purposes, a clear crime against innocent civilians and against International Humanitarian Laws. The United Nations Secretary General, Ban Ki-moon, has personally called for a cease-fire in the region due to humanitarian catastrophe. Furthermore, the UN has attempted on numerous occasions to help negotiate the end of fighting, but have been hindered by the failure of involved parties to maintain such a ceasefire, while the US Secretary of State John Kerry has declared US support for Saudi Arabia in 2016. The Arms Trade Treaty 2014, signed by the UK and US, states arms should not be sold by a state if they have knowledge that they will be used for crimes against humanity, attacks on civilians or any other form of war crime. The UN states ‘Indiscriminate attacks constitute war crimes, as are attacks on civilians or civilian objects, such as airports...similar considerations apply to air strikes and any other means of combat.’ The targeting of innocent civilians is therefore also a grave breach of the Geneva Convention 1949, and the supply of arms to those who do so is a direct violation of the International Arms Trade Treaty.

Beyond selling arms to Saudi Arabia, the Saudi Foreign Minister and Ministry of Defense have confirmed British military advisors are in control rooms advising and assisting in the bombing raids across Yemen. From a domestic UK perspective, the presence of direct UK assistance in Yemen without internal debate is in itself abhorrent. Moreover, from an international standpoint, any further increase in British military cooperation could directly incriminate the UK in not only resourcing the arms used, but instigating and authorizing tactics that break humanitarian law. The Campaign Against Arms Trade (CAAT) has gone further than accusations around Saudi Arabia, reporting that the UK government has sold arms to 24 of the 27 countries where its own estimates have implied the presence of wider humanitarian concerns. The CAAT suggest just North Korea, Cuba and Iran from the list have not been involved in UK arms trade, three countries with a large media rhetoric and debate with regards to their perceived threat to other’s national security. A threat posed by Saudi Arabia however has not been suggested, and hence the selling of arms to them much less reported, discussed or objected to.

In 2013, UK Prime Minister David Cameron strongly advocated for the Arms Trade Treaty, arguing it would save lives and ease human suffering globally. But, he cannot choose to excuse suffering solely because it provides economic gain.  At a time when threats to innocent civilians derive from a variety of sources, and the question of national security and citizen safety is high on the agenda, Saudi Arabia’s actions in Yemen, and the UK and US’s support of those actions, cannot go unquestioned. Western democracies have been quick to condemn others aiding and creating civilian deaths and humanitarian crises globally, while benefitting illegally from aiding Saudi Arabia to do just that. Western foreign policy, particularly towards regions in humanitarian crisis is legally unacceptable, and has reached unprecedented levels of hypocrisy.