This past Sunday, I was privileged to speak with Justin Fielkow (@JFielkow), an Illinois-based attorney with the Franklin Law Group. Justin received his undergraduate degree from the University of Wisconsin-Madison and received his law degree from Tulane University. Additionally, he co-founded The Sports Esquires (@SportsEsqBlog). As per usual, please find Justin’s responses below.

Motivation Behind His Law School Enrollment at Tulane University, Landing First Law Firm Job, Sports Writing Experience

“I’ve always been interested in working in sports, and law school seemed like a great route by which to accomplish that goal. Tulane offered one of the premiere sports law programs in the country, so it was an easy call, especially since I attended high school in New Orleans and still had family living there at the time.”

“When I got to (Tulane), what I quickly learned is that the sports industry is not really an easy one to break into. But, the program kind of opened my eyes to the possibilities available to someone who wanted to pursue a career in sports. You’re not simply limited to being an agent or working as legal counsel for a (professional) team necessarily. There are a number of ways in which you can still practice sports law, something which is often mis-conceptualized, as it really is just a variety of issues that impact organizations dealing in the sports industry.”

“So what I decided to do was to join a law firm. And this is where I got lucky — Having gone to the University of Wisconsin, I knew I wanted to move back north to Chicago; I had an old family friend (in Chicago), who became disenchanted with working at a larger law firm, and [he] decided to open up his own practice at about the same time I was graduating from Tulane.”

“I was a clerk there, and then I joined the practice after actual passage of the Bar. We’re now up to six attorneys, and the great thing about working at a small firm is you’re not only expected to immediately take on significant responsibility, which helps augment my experience a lot quicker than, maybe, other students (in larger firms) who had just graduated, but you also have the opportunity to shape the practice. So I capitalized on that opportunity to tailor the business to my interest in Sports and Entertainment law.”

“For example, one of my big interests, since I was young, has been fantasy sports. I vividly remember the days of dial-up (internet) and playing Sandlot fantasy baseball when I was about 10 years old. When I was in college, I was lucky enough to start writing for one of the most well-respected fantasy sports media companies, called RotoWire, [which is] located in Madison, Wisconsin. When I moved down to New Orleans, they asked if I wanted to continue contributing for them as a writer, so I covered the New Orleans Saints as a beat writer. Shortly after that, I began drafting a column (for RotoWire), analyzing legal issues that arose in sports and their impact on fantasy sports players and personnel.

“I’m still contributing to them today, but after joining the law firm, in large part based on my experience in the industry, I’ve lately had the chance to represent a number of different entities operating in or serving the fantasy sports industry.”

Starting Own Sports Law Blog 

“There was a group of us at Tulane who are very close — about eight of us or so. We actually have our own fantasy football league amongst our law school classmates, so we have the opportunity to banter back and forth. To stay in touch, one of the ideas that we all came across, since most of us were part of the sports law practice, was to publish our ideas, publish our thoughts on recent occurrences and happenings in sports, and … essentially where the law and sports come to a crossroads.”

“I was actually one of the more skeptical co-founders, but (the Blog) has grown in popularity pretty rapidly since our inception just about … 2 years ago. I think that two of our biggest topics that we’ve done a pretty good job of staying on top of, and [that] people have a strong interest in learning more about, were the Tom Brady situation and the issues surrounding daily fantasy sports.”

Future of the Media Landscape

“Publications, like ours, are … directed at a certain niche of readers, and I think you’re seeing a lot of that (content-specific media coverage). For example, there are blogs for each individual sports team. They provide specialized content for people who are interested in reading about that particular topic. I don’t think sports laws is any different. There is certainly a niche of readers who are absolutely looking to learn more about certain issues where, like I said, the law and sports meet at a crossroads.”

“I don’t know if people are doing to stop reading the newspaper-style content necessarily, but I think the current state that we’re in is that consumption of news is becoming more specialized.”

Daily Fantasy Sports 

“There is a federal law called, the Uniform Internet Gambling and Enforcement Act (UIGEA). Essentially what that statute does is that it provides a carve-out for fantasy sports. Essentially it exempts fantasy sports from certain federal prohibitions against Internet gambling … What the statute does state specifically is that it does not alter or in any way modify or supersede state law concerning prohibitions against gambling or lotteries. Each state essentially has the opportunity to make a determination whether fantasy sports or daily fantasy sports in general, when played for money, constitute a prohibited form of gambling or lottery within their jurisdiction.”

“Under most states’ anti-gambling or anti-lottery laws, the question of whether a game is one of skill, which is typically not defined as gambling and therefore permissible, or chance, which therefore would be defined as gambling and typically prohibited, is important when you’re discussing fantasy sports. In states that have no specific legislation regarding fantasy sports (played) for money, then the legality (of pay-to-play fantasy sports games) often depends on the interpretation of a degree of chance versus the relative knowledge or skill involved in the contest at issue. The gambling tests that are applied to fantasy sports can vary state-to-state, and we are currently seeing many states weigh in on the issue.”

“When we’re discussing places like Maryland, for example, or New York or Illinois, where we’ve seen discussions and opinions given by the attorney generals there, [that is] based on the current law. The opinions can vary, depending on the laws on the books. In New York and Illinois, those are states that have statutes that are somewhat in the minority … They take a stricter view on what constitutes gambling than in any many other jurisdictions.”

“But in Maryland, what you saw … was a state that basically punted the issue to the legislature. It said, ‘This is a gray area, it can vary based on the contents that are being offered, so we can’t really state whether or not, affirmatively, (whether) these are games of chance or games of skills, such that they either do or do not fall under the current statutes prohibiting gambling or the lottery.”

“Now, what we’re also seeing is piecemeal regulation proposed. In most states right now, in my opinion, daily fantasy sports in their current form are legal under most state anti-gambling and anti-lottery laws … But, while they may still be legal under the current existing laws, it’s still somewhat of a gray area in many states and in many circumstances. So there is a push for legislation. This legislation is taking a number of different forms. The most common form is that it clarifies the legal status of daily fantasy sports, expressly declaring it legal and exempting it from anti-lottery and anti-gambling statutes, and also addressing a number of concerns that we’ve seen in the recent months about making sure that they are appropriate protections in place for consumers.”

“So (the Maryland Attorney General’s opinion) should be something that is viewed as, at least in my opinion, a positive sign for the industry, in the sense that the status quo is favorable to a ban because what you’re seeing is a wave of legislation being proposed that, again, clarifies the legal status of these games for making them expressly permissible in those jurisdictions … That is something that is, really, a positive occurrence for operators because they want to see their games expressly legalized as opposed to operating in a gray area. And (daily fantasy sports companies) want to be able to operate in the meantime while the legislature works to pass those laws that clarify that status and implement those consumers protections that the majority of operators favor.”

“To sum, there are a lot of nuances in the (legal) situation (regarding daily fantasy sports), and it can very much differ on a state-by-state basis. When you’re talking about these gambling and lottery statutes in states, oftentimes they are very old and very complex. They don’t typically take into account things like the advent of internet gaming. That’s why there’s this current push for legislation expressly legalizing these fantasy sports games, because at the heart of it, while it’s important to ensure the offerings are above board since there is money involved, they’re still just fun games.”

Future of “Baseball Rule”

“First and foremost, you’re seeing teams and leagues take a step toward common-sense protections. Major League Baseball (MLB) recently passed a recommendation to expand the netting in stadiums, which, to a certain degree, makes some sense given the potential for injuries in certain situations. But with that being said, these teams have to be careful. One of the great things about attending a live sporting event in person is the interaction you have with the game actually on the field. It can take the form of catching a foul ball or, heck, even a bat in some circumstances, or giveaways — t-shirt toss, hot dog (cannons) … It’s that type of interaction that really enhances the experience for those at the game.”

“Teams don’t want to become liable, per se, in every instance that someone gets hurt because what you’d be doing essentially is creating a chilling effect on those experience-enhancing activities that are often found at most games. That’s why the Baseball Rule exists. It requires a delicate balance, and I think you’re seeing some steps to protect fans from some of the more dangerous situations, like a foul ball down the third-base line or things of that nature, which can obviously cause some damage. But, you can’t go overboard because at some point, you start to lose what makes attending a live game so great.”

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The Marquette University Law School Sports Law Society Blog greatly appreciated the opportunity to talk with Justin on a variety of topics as he analyzed such topics in a very detailed manner for readers to easily understand. We wish Justin the best of luck with his future endeavors.

All Rights Reserved. No part of this publication may be reproduced or transmitted in any form without the express written consent of the MULS Sports Law Society Blog (the “SLS Blog”). The opinions expressed by guests of the SLS Blog are their own, not ones expressed by the SLS Blog. 

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