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Friday, July 11th, 2008 at 1:45 am

A reality for Fantasy Sports - Fantasy Football (In) Fidelity

SUPREME COURT TRIAL OF FANTASY

Cameron Pettigrew, et al. v. Fidelity Investments, Inc.

A petition for writ of certiorari fromthe Fantasy Sports Industry

Decided December 26, 2009

Cite as an FJ 10 (2009)

Facts

Cameron Pettigrew, a relationship manager in the Client Group Private Investment in Fidelity ("Fidelity") Westlake, Texas office, was a self-proclaimed "Man Fidelity" and had been employed with the company since 2007. The accumulated an impressive resume, which contained multiple honors from the company, besides being the only person elected to an exclusive program of 10 members (Westlake's future leaders) that was not already in a management position. In September 2009, he was offered a position at the prestigious Wall Street branch of Fidelity, But Pettigrew said he chose to reject the offer due to the high cost of living in the city of New York. While working at Fidelity, Pettigrew was the curator and organizer of the least one fantasy football league office made up of other Fidelity employees, including managers and team leaders, in which each participant pays $ 20 to join the league. game and play fantasy football in company time. Moreover, fidelity to block access to Internet for all and all websites that have something to do with fantasy sports and play - not to mention the blocking of sites like theonion.com, nintendo.com and thousands of other non-work related websites. According to an anonymous Fidelity employee, who is also a commissioner of a league office fantasy, fidelity "does not grant access to nfl.com, espn.com, yahoo.com, etc, but if then try clicking on one of their links to the fantasy, you will receive a message on the giant screen that lets you know that access to the fantasy section that website has been blocked. "

On October 20, 2009, Fidelity Management discovered the abovementioned fantasy leagues after intercepting e mails and instant messages addressed to Pettigrew, who admitted he was aware of Fidelity policy, but said he was "poorly communicated and ignored for leadership. "He also argued that the leaders of several other Fidelity managers and other office participated in fantasy leagues despite the policy of the company.

Pettigrew said he never played fantasy football before coming to fidelity.

"Last season I was approached by a director I asked to be in their league. I knew a lot about the politics of the moment, but if a manager thought it was complicated that the rule was probably something of an outdated law, like what is illegal in Michigan for a woman a haircut without asking her first husband. "

Despite their efforts, instant conversations Pettigrew messages with colleagues over poor results prompted Trent Edwards loyalty management for ninety minutes of questioning about their involvement in fantasy sports as if it was "a kind of international game boss." After the interview concluded, Pettigrew was sent home for the day.

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

"We have clear policies relating to gambling. Participation in any form of gambling through the use of time or equipment fidelity or any other resources the company is prohibited. Besides being illegal in many places, but also can be harmful. We want our employees are focused on our customers and clients. "

Procedural History

Pettigrew and three other Fidelity employees ended on October 21, 2009 for violating company policy prohibiting gambling and fantasy football game during working hours. Despite its appeal to the loyalty, the explanation for termination of a U5 (Uniform Termination Notice for the Regulation of Industry Securities) says: "VIOLATION OF COMPANY POLICY TO PLAY fantasy football."

Pettigrew, colleagues, and the sports industry fantasy as a whole seek clarification of whether fantasy sports are considered games of chance in the law and in the workplace. Pettigrew and his colleagues also request an advisory opinion on whether they have an actionable claim for wrongful termination against fidelity.

The Supreme Court of fantasy the trial has accepted certiorari and offers the following opinion, which has ruled unanimously by the bank.

Matters arising

(1) Are fantasy sports as a form of gambling?

(2) Are there any legal recourse Pettigrew and other employees can take over fidelity against unfair dismissal?

Decision

I. Fantasy sports IS considered a form of gambling?

According to Paul Charchian, president of the Fantasy Sports Trade Association ("FSTA"), no fantasy sports company has been prosecuted for the game, and no single person has been prosecuted for gambling-related fantasy While concerns are meritorious Charchian and justified, the Court will not allow the misconception about fantasy sports is considered a form of gambling for forward. What employers allow their employees do during working hours they have left, but not be allowed to associated companies, correlate and define the participation in fantasy sports as a form of gambling.

From the very infancy of this country, separation of powers has helped to maintain and strengthen our democracy. That said, this Court refers strictly to the Congress of the determination of whether fantasy sports within the scope of gambling. It is very clear, Congress has excluded fantasy sports from the definition of gambling. Unlawful Internet Gambling Act Implementation of 2006 (HR 4411) was intended to "avoid the use of certain payment instruments, credit cards and fund transfers for unlawful gambling on the Internet, and for other purposes. "Under § 5362 the bill, the term "bet" or "bet" does not include ...

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

(I) is not just the result of any single sporting event or singular individual performance not participating in any sporting event;

(II) has a result that reflects the relative knowledge of participants, or their skill in physical reaction or physical manipulation (but not chance), and in the case of a sports simulation game, has a result that is mainly determined by the accumulated results statistics of sporting events, and

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

In addition, the law banning Internet gambling in 2006 (HR 4777) also specifically excludes fantasy sports on your definition of gambling. The bill defines a "bet" or "bet" to include wagering on sporting events, lotteries and gambling. A "bet" or "bet" does not include dealing in securities and commodities compensation and insurance contracts, and fantasy sports leagues.

Courts across the country, however, have long recognized it would be "absurd" to argue that "the combination of a fee and a prize equal to gambling," because if that were the case, a number of competitions every day dedicated to the game would be illegal, including golf tournaments, "bridge tournaments, parties, state or local contests fair. . . literary competitions or test. . . cattle, poultry and produce shows, track meets, spelling bees, beauty contests and the like " and the contestants and sponsors may be subject to criminal liability.

The courts have distinguished between bona fide rights Registration and betting or gambling, arguing that the entry fees, are not betting or wagering on paid unconditionally privileged to participate in a contest and the prize is for a certain amount that is guaranteed to be won by one of the contestants (but not the entity offering the prize). Courts that have examined this issue have reasoned that when the entry fee and prizes are unconditional and ensures the risk element necessary to constitute a bet or is not gambling.

"An award or premium differs from a bet that the first, the person offering it has no chance of winning again offering it, but if it complies his offer to be missed, while in the second, each stakeholder in it has a chance to win and has a risk of loss. . . The fact that each participant is required to pay an entrance fee at the entrance fee does not specifically compensate for the bag or not to convert raw challenged the contest on a bet. "

Besides the fact that the fantasy leagues are not gambling and providers of statistical services (ie, ESPN, Yahoo, CBS Sports) nothing is gained, participants did not suffer "losses" in participating in fantasy leagues. Fantasy athletes pay a one-time nonrefundable registration fee to participate in the leagues, and receive in return for the fees benefit from the administration wide provider of statistics, statistical and analytical services through for the sports season. Only at the end of season sports are the prizes awarded in amounts fixed by the contracts governing the participation in the league. Consequently, payment for the right to participate in leagues, participants simply did not "lose" something, and certainly not suffer cognizable "game" Once participants have selected their team and start the season, the fee can not be recovered. There is no "loss" of these facts, and this change in account is a common "contract" in which "ultimately, both parties can gain from signing the agreement."

Based on the language Congress's clear in two separate bills on illegal gambling on the Internet, it is clear to this Court that fantasy sports are not considered a form game. Any suggestion more inference or correlation between fantasy sports and gambling would be irresponsible, inaccurate and potentially defamatory.

II. Are there any legal recourse and other employees Pettigrew MAY TERMINATE against Fidel for unfair dismissal?

It is no mystery why companies like Fidelity have policies prohibiting the fantasy sports participation during work hours and resources. After all, the fact that such a policy even exists in fidelity (albeit in the form of email) is why Pettigrew and his colleagues were fired. Said the spokesman Fidelity Vin Loporchio: "We have clear policies relating to gambling. Participation in any form of gambling through the use of time Fidelity or equipment or other resources of the company is prohibited. Besides being illegal in many places, but can also be harmful. We want our employees to be focused on our customers and clients. "

It is undeniable that the fantasy sports industry has an important role in today's society and economy. Chris Russo, president and CEO of Fantasy Sports Ventures, he served as senior vice president of the NFL's new media and publishing 2000-2006. It is estimated that in 2000, the years persuaded NFL commissioner Paul Tagliabue's to launch the first official league fantasy football competition, there were approximately 2 million people playing fantasy football in the In the United States. Now, according to the FSTA, an organization representing 110 member companies that was founded in late Americans who participate in fantasy sports that generate more than $ 1 billion each year for the industry.

Although it seems that the sports industry fantasy is immune to the current economic downturn, many companies are struggling to survive and not have enough staff. Given these factors, some companies may be more sensitive than normal to workers who are losing valuable company time. According to John Challenger, CEO of employment consultancy firm Challenger, Gray & Christmas, fantasy football is expensive for business productivity. In 2008, his consulting firm estimated that the cost of fantasy leagues Corporate America about $ 10 billion annually. He reached this figure based on 13.6 million people playing fantasy football (according to the FSTA) earning an average annual income of $ 100,000 and spend more than an hour a week managing fantasy sports teams. Challenger said that fantasy average cost of sports participants of his / her company about $ 45 per week in lost productivity.

Although this Court previously clarified the distinction between gambling and fantasy sports (see above), is given the benefit of the doubt that their political loyalty to the company including fantasy sports participation within the parameters of their guidelines. In fact, after the story was published in an article in December 11, 2009 written by Drew Davison of the Fort Worth Star Telegram, fidelity and conviction received tremendous response from the community of fantasy sports for the sports association of fantasy play. He went back through the loyalty and Loporchio recognized that fantasy sports are not considered gambling legally.

"We're not making any judgments about the fantasy leagues. If it is legally allowed, people can do this for your time. Our policy is derived solely the professional conduct of our employees. We do not want the team of our company and the resources used for these purposes. "He added that the activities can Loporchio be detrimental to the company's business and loyalty you want your employees to focus on customers.

Challenger said the key was Fidelity's corporate policy that prohibits gambling / fantasy football at work. This made it easier to fire an employee who is caught. However, although the fidelity has no policy prohibiting such activity, that just might reprimand, suspend or dismiss an employee if you believe that your productivity is limited because he He / she is spending more time in the fantasy sports business related topics. While the Challenger describes the actions of Fidelity as an apparent "The death penalty for a misdemeanor," warns that employees should be careful calling attention to their differences in personal productivity in an environment where there are a lot of people competing for your job.

Challenger warning is given a good reason. This is because most employees in the United States are considered "at will" employees. Since the latter half of the 1800s, employment in the state of each and every one has been considered "a will, "or terminated by the employer or employee for any reason. Employment in the doctrine that acknowledges that when an employee does not have a written contract, the period of employment is indefinite period, the employer may terminate an employee for good cause, bad cause or no cause. The law generally assumes that you are employed at will unless you can prove otherwise. There are three exceptions to employment at will doctrine, which can bring rise to actionable claims for unfair dismissal: 1) public policy exception, 2) the exception of implied contract, and 3) the covenant of good faith and fair dealing exception. This Court will examine the three exceptions in employment and whether Pettigrew and his colleague have a claim actionable.

Under the public policy exception to employment at will, an employee is discharged accidentally when the termination is explicitly against well-established public policy of the state (for example, firing an individual for filing a claim for compensation after have been injured at work, or for refusing to violate the law, the employer's request). Under Texas law, the public policy exception only applies strictly based on public policy derived from the state constitution and statutes. Since there are no provisions or amendments in the constitution of the state of Texas, nor are there laws that clearly state the relevant public policies, Pettigrew and his colleagues can not invoke the first exception to the doctrine of employment at will.

The second important exception for employment in the doctrine that applies when an implied contract is formed between an employer and employee, although not expressed, written instrument about the employment relationship exists. Unfortunately for Pettigrew and his colleagues, Texas has refused to recognize the implied contract exception. The Texas Supreme Court has stated a letter offering a job, the classification of an employee as "permanent" rather than "temporary" and the document identification the company of a scheduled retirement date for the employee some 22 years later began employment are insufficient in amount to create an implied contract of employment fixed term. If Texas had recognized this exception, perhaps Pettigrew and his colleagues have a meritorious argument. According to Pettigrew, realized the stakes policies prohibiting the fidelity and fantasy football during work hours, but he had no knowledge that a violation of this policy was a crime fireable. If Fidelity does not encode its policies, procedures and sanctions in an employee handbook or a valid e-mail, Pettigrew could argue that fidelity breached its contract. In cases where a company issues an employee handbook describing the procedures, including reprimands and opportunities to correct behavior one if an employee is accused of violating company policy, then other courts have analyzed these provisions in accordance with the requirements traditional for the creation of a contract: offer, acceptance and consideration. From Texas, the law recognizes this exception to the doctrine of employment at will, Pettigrew and his colleagues can not invoke the exception second goal.

The third exception to the doctrine of employment at will is the exception for a covenant of good faith and fair dealing. This exception represents the most significant departure from traditional employment in the doctrine of the will. Instead of a strict prohibition order completions public or an implied contract, this exception - in its broadest sense - reads a covenant of good faith and fair dealing in every employment relationship. It has been interpreted that staff are employer decisions are subject to a "just cause" standard or terminations made in bad faith or motivated by malice are prohibited. The Most states do not recognize this exception, including Texas, so Pettigrew and his colleagues have no right to appeal under this exception either.

Since no exception to the doctrine of employment that applied in this case, Pettigrew and his colleagues appear to have no actionable claim against fidelity for unfair dismissal. While this Court recognizes the harshness of the penalty compared to the "crime", he claimed, which is beyond the scope and obligation of the legal system to impose their willingness to companies about their ability to fire an employee which is in direct violation of company policy. The only remedy that this Court gives Pettigrew and his colleagues is fidelity to the modification of the explanations for the termination of employees U5 forms by removing any reference all games of chance. It would be inherently damaging to Pettigrew and others to be cited or inappropriate reference to the fantasy game when clearly the participation Football is not included in the definition of gambling. While a future in loyalty is not in the letters of these gentlemen, there is no reason to prevent ORDERED.

Michael A. Stein, Esq.

Owner and Chief Justice

michael.stein @ Fantasyjudgment.com

www.fantasyjudgment.com

References

http://www.star-telegram.com/news/story/1825336.html
http://www.reuters.com/article/idUSTRE5BF5KQ20091216
http://thomas.loc.gov/cgi-bin/query/z?c109:HR4411:
http://thomas/loc.gov/cgi-bin/query/z?c109:HR4777:
State v. am. Holiday Ass'n, Inc., 727 P. 2d 807, 809, 812 (Ariz. 1986) (en banc)
Humphrey v. Viacom, Inc., et al. No. 06-2768 (DNJ, June 20, 2007)
Las Vegas Hacienda, Inc. v. Gibson, 359 P.2d 85, 86-87 (Nevada, 1961).
10. DC Code § 16-1702; Ga Code Ann. § 8.3.13 and 720 Illinois Comp. Stat. 5/28-8, Ky. Rev. Stat. Ann. § 372,020; Massachusetts General Laws ch. 137, § 1; Ohio Rev. Code Ann. § 3763.02, NJ Rev. Stat. § 2A :40-5, SC Code Ann. § 1.20.32.
http://sportingnews.com/contract/cancellation.html
Martin v. Citizens Bank 'Of Marshallville, 171 SE 711, 713 (Georgia 1933).
http://www.fsta.org
Shane and Rosenthal, Employment Law Deskbook, § 16.02, § 16.03 [8] (1999)
Charles J. Muhl, Monthly Labor Review "The Employment Doctrine: three major exceptions "(January 2001)
Webber v. MW Kellogg Company, 720 SW2d 124 (Texas 1986).
Pine Mettilee River State Bank v., 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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