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A reality for Fantasy Sports – Fantasy Football (in) fidelity

JUDGEMENT OF THE SUPREME COURT OF FANTASY

Cameron Pettigrew et al. C. The Fidelity Investments, Inc.

The application for a writ of certiorari fromthe sports industry FANTASY

Decided in December 26 2009

Cited as an FJ 10 (2009)

Facts

Cameron Pettigrew, director of relations in Private Client Group at Fidelity Investments ("Fidelity"), Westlake, Texas office, was a self-proclaimed "Fidelity of man" and was employed in the company since 2007. Accumulated an impressive resume that includes honors several companies, in addition to being the only person elected an exclusive Leaders of 10 members of the program (future Westlake) who was not in a management position. In September 2009, he was offered a position at the branch prestigious Wall Street Fidelity But Pettigrew said he chose to reject the offer because of the high cost of living in New York. While working at Fidelity, Pettigrew was the curator and organizer of at least one office of the fantasy football league comprised of other Fidelity employees, including managers and team leaders, where each participant pays $ 20 to join the league.

On October 20, 2009, Fidelity has in place policies and even the company that were distributed by e-mail address that prohibits gambling and fantasy football play in society. In addition, access Fidelity Internet blocks everyone and all websites that have something to do with fantasy sports and games of chance – not to mention the blocking of sites like theonion.com, nintendo.com and thousands of other Web sites unrelated to work. According to an anonymous employee loyalty which is also a commissioner of the league office Fantasy, Fidelity provides access to nfl.com, espn.com, yahoo.com, etc., but try clicking on any of their novelty ties, you will receive a message on the screen giant that lets you know that access to the fantasy section of this website has been blocked. "

On October 20, 2009, Fidelity Management discovered the abovementioned fantasy leagues after the interception of emails and instant messages addressed to Pettigrew, who admitted he was at current policy of fidelity, but said it was "poorly communicated and ignored by management." He also argues that many leaders and managers of other Fidelity participated in another office fantasy leagues despite the company policy.

Pettigrew said never played fantasy football before coming to fidelity.

"Last season I was approached by a manager who asked me in his league. I knew vaguely about the policy over time, but I thought that if a manager is that the state was probably something of an outdated, and that is illegal in Michigan for a woman to cut her hair without asking her first husband. "

Despite their efforts, Pettigrew instant message conversations with colleagues about the poor performance Trent Edwards moved to loyalty management to interrogation for half past one on their participation in fantasy sports as if it was "a sort of patron international game." After questioning, it was concluded, Pettigrew was sent home for the day.

October 21, 2009, Pettigrew, with three of his colleagues fellow commissioners and fantasy football were informed by telephone that ended Fidelity. Said Fidelity spokesman Vin Loporchio:

"We have clear policies on gambling. Participation in any form of gambling through the use of fair weather or other equipment with another company or resources is prohibited. In addition to being illegal in many places, can also be harmful. We are our employees to focus on customers and customers. "

Procedural

Pettigrew and three other employees Fidelity ended October 21, 2009 for violated company policy banning the game and play fantasy football during work hours. Despite his call for fidelity, the explanation termination U5 (Uniform Termination Notice for Securities Industry Regulation) said: "The policy VIOLATION Thurs company in which Fantasy Football. "

Pettigrew, colleagues, and industry of fantasy sports as if asking for clarification on all Fantasy sports are considered gambling under the law and in the workplace. Pettigrew and his colleagues also request an advisory opinion on that they have a right to with unfair dismissal action against the fidelity.

The decision of the Supreme Court accepted certiorari and fantasy offers the following opinion, which was governed by unanimously by the bank.

The issues presented

(1) fantasy sports are considered a form of gambling?

(2) Are there any legal recourse Pettigrew and the others can take care of employees against dismissal abusive fidelity?  

Decision

I. Sports Fantasy is considered a form of gambling?

According to Paul Charchian, president of the Fantasy Sports Trade Association (FSTA), fantasy sports has any company been prosecuted for the game, and any individual has been prosecuted for involvement in gambling-related fantasy sports Charchian also stated that was "concerned by this case marks the initiation of a reaction of employers against the field more and more sports games online. "Charchian Although the concerns are real and justified, the Court can not misconception regarding fantasy sports is considered a form of gambling continue further. What employers allow their employees to do the work hours are left, but it will not be associated or correlated define the participation of fantasy sports as a form of gambling.

From the childhood of the people, the separation of powers has been maintained and strengthen our democracy. However, the Court refers strictly to Congress the question of whether fantasy sports as part of the game. It is clear that Congress Definition excluded fantasy sports as well as the Unlawful Internet Gambling Enforcement Act Thurs 2006 (HR 4411) aimed to "prevent the use of certain instruments payment, credit cards and fund transfers for unlawful Internet gambling, and for other purposes. "Under § 5362 of the bill, the term" bet "or" bet "does not include …

(Viii) any participation in a sports simulation game, an educational game or contest as-

(I) does not depend solely on the outcome of any sporting event or non-participating singular individual performance in an event unique sport;

(II) has an outcome that reflects the knowledge of the participants or their ability to react or physical manipulation physical (but no luck) and in the case of a sports simulation game, a result which is determined primarily by the accumulation of results Statistics sporting events, and

(III) offers a prize or a prize to a participant who is set before the game or contest and is not determined by the number of participants or the amount of fees paid by participants. "

In addition, the law prohibiting gambling on the Internet in 2006 (HR 4777) also specifically excludes Fantasy Sports on your definition of gambling. The bill defines a "bet" or "bet" to include events in Paris sports, lotteries and paris. A bet "or" bet "does not include the trading of securities and commodities, compensation, insurance contracts Sports and Fantasy leagues.

Courts across the country, however, have long recognized that it would be "absurd" to hold "The combination a registration fee and the price is equal to a game, "because if that were the case, a number of participants in all competitions day would illegal gambling, including "golf tournaments, bridge tournaments, rodeos and state or local fair competitions, literary competitions … or a test. . . exhibitions of livestock, poultry and products, track meets, spelling bees, beauty contests and the like, and participants in the contest and all the sponsors may be subject to criminal liability.

The courts have drawn a distinction between good fide rights of entry and paris or wagers, holding that the rates of entry is not a gambling or betting when an unconditional grant for the privilege to participate in a contest and the prize is for a certain amount that is guaranteed to be won by a candidate (but not the entity that provides price). The courts that have considered this issue have reasoned that when the fees and prices are guaranteed unconditionally and element risk necessary to constitute a bet or wager is not found.

"A price or premium differs from a bet that in the previous is the person offering the same without the ability to get the thing offered again, but if you stick to your offer, you must lose, and the second All those involved have a chance to win and who will bear the risk of loss. . . The fact that each participant is required to pay an entrance fee at the rate of entry does not refer specifically to offset the bag or not to convert first contested contest on a bet.

Besides the fact that the leagues are not fantastic gaming and providers of statistics (eg, ESPN, Yahoo, CBS Sports) won anything, the participants did not undergo a "Loss" to participate in fantasy leagues. Fantasy Sports participants pay a registration fee of one-time non-refundable participate in leagues, and receive in return for the tax benefit of major supplier of administrative data, statistical and analytical services in the respective sport season. Only the end of the sports season are the price, in fixed amounts for contracts that govern participation in the leagues. Accordingly, the payment of the right to participate leagues, participants simply did not "lose" something, and certainly not suffer admissible "game" loss. Whether or not a participant is a successful manager in the league, your registration fee is not involved in any way in connection with their participation in the league. Indeed, Once participants have chosen their team and start their season, the rate can not be recovered. There is no "loss" of these facts, and exchange of consideration is an ordinary "contract" in which "ultimately, both sides can win by signing the agreement."

Based on the unambiguous language of the Congress in two sectors, the draft law on illegal gambling on the Internet, it is clear to the Court that fantasy sports are not considered a form of play Any other suggestion, inference or correlation between sport and the game would be irresponsible fantasy, incorrect and potentially defamatory.

II. Are there any legal recourse Pettigrew and other employees may be taken against the fidelity terminated for wrongful dismissal?

There is no mystery why companies and Fidelity policies must prohibit participation Sports fantasy work hours and resources. After all, the fact that the same political loyalty exists (albeit in the form of e-mail) Therefore Pettigrew and his colleagues were dismissed. Fidelity spokesman Vin Loporchio said: "We are clear policies on gambling. Participation in any form of gambling through the use of time Fidelity or equipment or other resources is prohibited. In addition to being illegal in many places, can also be harmful. We want our employees to focus on customers and clients. "

Undeniably, fantasy sports industry has an important role in today's society and economy. Chris Russo, president and CEO of Fantasy Sports Ventures it was as president of the NFL vice of new media and publishing 2000-2006. It is estimated that in 2000, the years sure Commissioner NFL, Paul Tagliabue, to launch the first official competition of fantasy football league, there were about 2 million people play fantasy football United States. However, according to FSTA, an organization representing 110 member companies that was founded in late 1990 to provide a forum for interaction between hundreds and other emerging companies in the fantasy sports industry booming, there are approximately 27 million Americans who participate in fantasy sports generate more than $ 1 billion each year for the industry.

Although it seems that the sports industry is fantastic immune to the current economic downturn, many other companies are struggling to survive and can not have enough staff. Given these factors, some companies may be more sensitive than normal to employees who lose valuable time society. According to John Challenger, CEO of employment consulting firm Challenger, Gray & Christmas, fantasy football is expensive for business productivity. In 2008, his consulting firm estimated to cost fantasy leagues around corporate America 10 billion dollars per year. He reached that figure on the basis of 13.6 million people play fantasy football (depending on FSTA) a average annual income of $ 100,000 and spent more than an hour a week managing fantasy sports teams. Challenger said that the average fantasy sports participants The company's costs around $ 45 a week in lost productivity.

Although this Court has already clarified the distinction between play and sport fantasy (see above), we give the benefit of the doubt that his political allegiance to the society, including participation in sports fantasy settings its guidelines. Indeed, after the story became public Dec. 11, 2009 Article written by Drew Davison of the Fort Worth Star Telegram, Fidelity received huge reaction and condemnation of the community of fantasy sports for fantasy sports association with the game Fidelity backtracked and acknowledged through Sports Fantasy Loporchio who were not legally considered gambling.

"We're not judgmental about fantasy leagues. If permitted by law, people can do on your own time. Our company policy on the professional conduct of our employees. We not want our business teams and resources to be used for these purposes. "Loporchio added that the activities can be detrimental to the company's business and loyalty want your employees to focus on customers.

Challenger has been key to Fidelity's corporate policy of the prohibition of play / fantasy football at work. This makes it easy to dismiss an employee is taken. However, although the fidelity has no policy prohibiting such activity, simply could reprimand, suspend or dismiss an employee if you believe that your productivity is limited because he / she spends more time in the fantastic sport that issues related to business. Then Challenger Fidelity describes the action that the death penalty apparent "a crime", warned that employees should be attentive to attract attention to their differences in personal productivity in an environment where there are many people who are fighting for their work.

Challenger Warns given for a reason. Because most workers in the United States are considered "at will" employees. Since second half of the 1800s, employment in each state considered "at will", or terminated by the employer or employee for some reason. Employment in the doctrine recognizes that when a worker has no written contract of employment and length of employment is for an indefinite period, the employer can dismiss an employee for good cause, bad reason or no reason. The law generally presumes that you are employed at will unless you can prove otherwise. There are three exceptions to the doctrine of employment at will that can give rise to claims for wrongful dismissal of actions: 1) public policy exception, 2) implied contract exception, and 3) the covenant of good faith exception. The Court will consider the three exceptions to employment at will and if Pettigrew and his colleagues have a right of appeal.

Under the exception public policy at will employment, an employee mistakenly settlement of the termination is against an explicit, well-established public for example the state (and from an individual for filing a claim after being injured at work, or for refusing to violate the law, at the request of the employer). Under Texas law, the public policy exception applies only strictly based on public policy from the state constitution and statutes. Since there are no provisions or amendments in the constitution State of Texas, are there laws that establish clear public policies, Pettigrew and his colleagues can not invoke the first exception to the doctrine of employment at will.

The second important exception to employment at will doctrine applies when an implied contract is formed between an employer and employee, but not expressed, written instrument regarding the employment relationship exists. Unfortunately to Pettigrew and colleagues, Texas, refused to recognize the implied contract exception. The Texas Supreme Court has ruled that a letter of offer employment, classification of an employee as "permanent" rather than "temporary", and the identification of company documents from a planned retirement date has spent about 22 years later began to work are insufficient in quantity to create a contract implicit employment for a specified period. If Texas has recognized this exception, perhaps Pettigrew and his colleagues had an argument deserves. By Pettigrew was aware of the political loyalty, which prohibits gambling and football great hours, but did not know that the violation of this policy was a fireable offense. If loyalty does not code for its policies, procedures and sanctions in an employee handbook or a valid e-mail, and Pettigrew could be argued that loyalty has breached his employment contract. In cases where a company issues an employee handbook describing the procedures specific, including reprimands and opportunities to correct their behavior if an employee is accused of violating company policy, and other courts have analyzed these provisions in conformity with the traditional requirements of creating a contract: offer, acceptance and consideration. Since Texas law does not recognize this exception to the doctrine of employment at will, Pettigrew and his colleagues can not count on second exception is.

The third exception to employment at will doctrine is the exception of a commitment in good faith and loyalty. This exception is the most important departure from traditional employment at will doctrine. Instead of strictly prohibit terminations public policy or implied contract, except that – in its broadest sense – reads a covenant of good faith and fair dealing in every employment relationship. It has been interpreted as meaning that the staff are the employer's decisions are subject to a "just cause" standard or interruptions in bad faith or malice are prohibited. Most states do not recognize this exception, including Texas, as Pettigrew and his colleagues did not right of appeal under this exception either.

Since there is an exception to at will employment doctrine applies in this case, Pettigrew and colleagues do not seem to have an application to appeal against unfair dismissal loyalty. While this Court recognizes the severity of punishment to the crime "charged it is beyond the scope and duty of the judicial system to impose their will on the company's ability to terminate an employee's will is a direct violation of company policy. The only interest of this Court grants Pettigrew and his colleagues is that the fidelity of change explanations on the form of termination of workers due to the elimination of all U5 and all references to the game. It is inherently harmful to Pettigrew and others to be quoted or referred inappropriate for the game when clearly the participation of non-fantasy football notes the definition of gambling. While in the future loyalty is not in the letters of these gentlemen, there is no reason to prevent or reduce your chances of alternative employment despite this unfortunate incident and place on their respective resumes.

So ordered.

Michael A. Stein, Esq.

Owner and Chief Justice

michael.stein fantasyjudgment.com @

www.fantasyjudgment.com

REFERENCES

1. http://www.star-telegram.com/news/story/1825336.html
2. http://fantasyfootball.fanhouse.com/2009/12/17/fired-over-fantasy-football-the-unfortunate-case-of-cameron-pet/22
3. http://www.fantasysportsbusiness.com/wordpress/2009/12/21/source-fidelity-tried-to-make-an-example-out-of-us/
4. http://www.reuters.com/article/idUSTRE5BF5KQ20091216
5. http://thomas.loc.gov/cgi-bin/query/z?c109:HR4411:
6. http://thomas/loc.gov/cgi-bin/query/z?c109:HR4777:
7. C. State Assn AM Homes, Inc., 727 P.2d 807, 809, 812 (Arizona 1986) (en banc)
8. Humphrey v. Viacom, Inc., et al. No. 06-2768 (DNJ, June 20, 2007)
9. Las Vegas Hacienda, Inc. v. Gibson, 359 P.2d 85, 86-87 (Nevada 1961).
10. 10. Code DC § 16-1702, Ga. Code Ann. § 08.03.1913, 720 Ill. Comp. Stat. 5/28-8, Kentucky Rev. Stat. Ann. § 372 020, Mass. General Laws ch. 137, § 1 Ohio Rev. Code Ann. § 3763.02, NJ Rev. Stat. § 2A :40-5 SC Code Ann. § 20.01.1932.
11. http://sportingnews.com/contract/cancellation.html
12. Martin v. Citizens Bank of Marshallville, 171 SE 711, 713 (Georgia 1933).
13. http://www.usnews.com/money/business-economy/small-business/articles/2009/09/21/the-reality-of-fantasy-sports.html
14. http://www.fsta.org
15. http://moneywatch.bnet.com/saving-money/blog/devil-details/can-you-be-fired-for-fantasy-football/1230/
16. Shane and Rosenthal, Employment Law Guide, § 16.02, § 16.03 [8] (1999)
17. Charles J. Muhl, Monthly Labor Review " employment at will doctrine: three major exceptions "(January 2001)
18. Webber v. MW Kellogg Company, 720 SW2d 124 (Texas 1986).
19. Pino v. State Bank Mettilee River, 333 NW2d 622 (Minn. 1983).

About the Author

Michael A. Stein, Esq. has participated in fantasy sports since he was 6 years old when he won a junior division of his father’s fantasy football league in 1985. Since then, Michael has continuously participated in and organized fantasy baseball, football and basketball leagues. He is the Commissioner of an 18-team Head-to-Head fantasy baseball league that has been in existence since 1999. He authored a fantasy sports league Constitution for use in his own league, as well as others, and continues to amend and modify it to deal with ongoing issues. He writes articles for Addict Fantasy Sports and World Cup of Fantasy Sports analyzing baseball, football, and fantasy sports in general. Michael is also the Owner, President, and Chief Justice of Fantasy Judgment (www.fantasyjudgment.com), a website dedicated to providing independent, professional resolution of fantasy sports issues through a panel of expert judges.

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