For Monkey Knife Fight, The Value Of Merger With FantasyDraft May Come From Acquiring State Licenses
The primary benefit for DFS company Monkey Knife Fight acquiring FantasyDraft comes in the form on … [+]
Last week, daily fantasy sports newcomer Monkey Knife Fight acquired the longstanding DFS company FantasyDraft in a deal that attracted some media attention. According to Monkey Knife Fight CEO Bill Asher, who has enjoyed past success in the entertainment and commercial real estate industries, this deal was primarily about acquiring market share. Meanwhile, others have tied this deal to the merging of two customer lists.
From a fantasy sports legal perspective, however, this deal seems far more likely than not to have been driven by a third factor: the opportunity for Monkey Knife Fight to immediately obtain fantasy sports licenses in states where these licenses would otherwise be difficult to secure.
Indeed, for Monkey Knife Fight, which burst on the daily fantasy sports scene in early 2019, building a user base or market share in the states in which it was licensed to do business was never too difficult. However, gaining a national footprint had proved far more challenging given the existing legal climate and what this meant for the company’s ability to gain approval to operate in certain regulated sports.
Perhaps most notably, in New York State, which includes approximately 10% of all fantasy sports entrant dollars, the state gaming commission had grandfathered in those DFS companies that operated in the state prior to November 10, 2015, but has never reviewed any new applicants for licenses. This has kept Monkey Knife Fight, along with all other DFS companies that waited for legal clearance before entering the New York market, frozen out of even applying for a fantasy sports license by an unusual form of red tape.
Meanwhile, even in a number of states whose gaming commissions have properly considered new market competitors, Monkey Knife Fight likely faced substantial hurdles in obtaining a license because some of company’s contests are played “ against the house” instead of between contestants. Against-the-house contests more likely than not violate the fantasy sports statutes of certain states and fall outside a federal safe harbor for payment processors created by the Unlawful Internet Gambling Enforcement Act.
With Monkey Knife Fight’s acquisition of FantasyDraft, these concerns about securing necessary state licenses, at least for a moment, seem to dissipate. In New York, Monkey Knife Fight’s acquisition of FantasyDraft arguably gives the new entity access to FantasyDraft’s temporary permit and an argument of continuous operation in the state since at least 2015. At the same time, the FantasyDraft acquisition likely provides Monkey Knife Fight with immediate licenses in a number of other states, including states that would now have to affirmatively rescind-rather than simply not grant-Monkey Knife Fight’s license based on its “against the house” format.
It is interesting to think back to nearly five years ago when the fantasy sports licensing world first emerged and the question of whether a company should be able to secure a license by acquisition was briefly discussed, albeit not fully analyzed.
At least for now, it seems clear that fantasy sports companies such as FantasyDraft will attempt to engage in business deals in which unlicensed companies arguably could gain legal rights to their state licenses. At the same time, well-funded startup companies in the DFS marketplace such as Monkey Knife Fight will likely continue to seek mergers or acquisitions with those companies that have secured licenses either through strict legal compliance (as is needed in many states) or based on date of entry, as currently seems to remain the threshold for permitted entry in New York.
_________________ Marc Edelman (
Marc@MarcEdelman.com) is a Professor of Law at Baruch College’s Zicklin School of Business and the founder of Edelman Law. He is the author of the Indiana Law Journal article “Regulating Fantasy Sports,” which is cited by the Illinois Supreme Court in Dew-Becker v. Wu. He is also co-author of the forthcoming Wisconsin Law Review article “A Short Treatise on Sports Gambling and the Law.”