Law Times

Law Times • sepTember 26, 2016 Page 7 www.lawtimesnews.com COMMENT Fantasy sports perfectly legal BY HOWARD DRABINSKY T he law of gaming in Canada is confusing and outdated. The Internet compounds the problem by offering a range of gaming opportunities unimagined when most Canadian gaming laws were created. Some lawyers believe fantasy sport "bet- ting" web sites are illegal. However, I wouldn't bet on it. This view is, at best, too sweeping. It treats all fantasy sports sites as the same. They are definitely not. Worse, it is simply wrong, oversimpli- fied and demonstrates a lack of under- standing of both fantasy sports and Ca- nadian gaming law. It is easy to be distracted by gambling law in this country, but, essentially, gam- bling is a criminal offence under the fed- eral Criminal Code of Canada. However, Ottawa allows provincial governments to make exceptions, which they have done to set up lotteries, allow parimutuel betting on horse racing and permit certain charity games. The law was created in simpler times. The Internet has disrupted gaming law and certainly there is a need for greater clarity in the law. I would agree that the Criminal Code, as it stands, is inadequate to deal with il- legal gambling in the 21 st century. However, all that is irrelevant to fan- tasy sports web sites. With few exceptions, what happens there is not gambling and is, therefore, legal. Gambling is betting on an outcome based entirely on chance — a lottery number, for example. It can also be a mix of chance — the cards dealt in poker — and skill — what players do with the cards they are dealt. For anyone not familiar with fantasy sports web sites, in most cases, the object is for players to select members of actual sports teams to construct a virtual team that competes against other players' teams based on their individual team members' actual performance. The teams are selected based on the players' analysis of statistics and experi- ence gained from watching real teams play. In fantasy baseball, for example, play- ers may select the team to fill each posi- tion with the best hitters, pitchers and relievers available. The "drafting" of these team members within a league by players may be highly competitive. As originally conceived, fantasy sports are games of skill based on the players' as- sessment of real athletes in a league. Fantasy sports are not the same as bet- ting on a real team playing a real game, where the outcome of the game is entirely out of the hands of the person placing the bet. There is no real game or real team — the whole point is that fantasy sports teams are entirely constructed by the players. As noted, not all fantasy sports sites are the same and their legality must be judged by their specific rules. Some may be a mixture of skill and chance, which would be illegal under the current law. But the mainstream sites are entirely based on the players' skills and should be clearly recognized as legal. Legal sites are not based on any aspect of random chance. There is no valid comparison to be made to bridge, for example, where cards are received at random, since fantasy sports players choose their own "cards" (team members) based on their own skills in evaluating statistics. The varying skill levels of players (or lack of skill among many players) may change the outcome, with more skilled players being more successful, but it does not change the basic nature of the game. A less skilled golf player may win a game against a more skilled player be- cause of a combination of good luck by the former and error by the latter. This does not change golf from a game of skill to a game of mixed skill and chance. Similarly, in many sports, weather or other external factors can play a role. A gust of wind may result in a missed field goal in football or a home run in baseball. In hockey, a player may score after a puck is def lected off a skate. That may be luck, but it does not mean these sports are games of chance or a mix of skill and chance in any sense, certainly not legally. Luck is not chance. It is not chance that has denied the To- ronto Maple Leafs the Stanley Cup for al- most 50 years. It is skill or, rather, the lack of it. Fantasy sports are as much games of skill as the real sports on which they are based. Accepting the notion that any uncer- tainty about the outcome of a sports event makes it a game of chance would mean that all sports are gambling, and that is ludicrous. There are those who say using comput- ers that may match fantasy sports players against each other introduces an element of chance, but that is both fallacious and legally irrelevant. The FIFA draw, which puts teams in to pools in the World Cup, does not turn the football played at the tournament into a game of mixed skill and chance. Each game, and its outcome, is still based on the players' individual skills matched against those of their opponents. The same is true of fantasy sports. Some of those who believe fantasy sports are a form of gambling argue that governments should intervene since, through regulation and control, they can gain tax revenues. There may be a need for introducing industry standards, but there is no reason for government intervention. There is no demonstrated social need and the opportunity to raise government revenue through regulation is not a com- pelling reason to regulate a legal activity. Fantasy sports leagues without the ele- ment of chance are legal. They should be left alone. LT u Howard M. Drabinsky is a senior part- ner at McMillan LLP and co-chairman of the firm's Entertainment, Gaming and Sports practice. Why the LPP should stay BY MARNI DICKER A s the legal profession continues to evolve and adapt to changing needs and as we search for highly qualified, diverse tal- ent to add to the profession, the Law Practice Program provides employers like myself with a window into the future of legal training. I have had the privilege to be both a mentor and a work placement employer for the program since year one. I have seen first-hand the tremendous rigour with which the LPP is conducted and the tremendous skills that are developed and demonstrated by the candidates. I am very disheartened and disappointed with the LSUC subcommittee report suggesting the LPP end this year. I hope the recommendation is voted down by the benchers in November and the LPP program can continue. The LPP's rigorous, experiential, comprehensive, in- novative and fully assessed training is preparing lawyers to meet the challenges of 21 st -century practice. In just two years, the LPP has created more than 440 work placements, which previously did not exist. Fur- ther, the competent and talented licensing candidates in the LPP truly ref lect the population of the province. They are a diverse, intelligent group of individuals that bring many experiences to the profession. In my view, these successes are clear evidence to sup- port my confusion, and the confusion of many others, as to why the LSUC's subcommittee has recommended terminating the LPP pilot early. Yes, the LPP was conceived as a three-year pilot with the possibility of a two-year extension to ensure ad- equate data was gathered, so that important decisions could be made based on facts and not on "perceptions" as the subcommittee report seems to rely heavily upon. Also, I could understand if the LPP was failing why an early wrap-up would be on the table, but with the fac- tual success it currently enjoys, it is hard to understand why an early wrap-up is at hand. Maybe I missed it, but why wouldn't an additional two years of data assist us all in making an informed choice, particularly since the subcommittee's report it- self mentions that there is a lack of relevant and tangible data in a number of critical areas? Once again, let's make this decision based on the facts and not on "perceptions." Ryerson's LPP is innovative, experiential and entre- preneurial. The four-month intensive practical training component and its four-month work placement com- ponent were designed by the profession for the pro- fession. I have witnessed first-hand the success of this training. The eight-month program graduated more than 450 licensing candidates in the past two years, and the pro- gram is now in its third year with more than 230 licens- ing candidates participating. Without the LPP program, there would be more than 600 individuals who would have no path to getting called to the bar. During the rigorous four-month practical train- ing component, candidates are grouped into virtual law firms with a practising member of the bar acting as their mentor. I have had the privilege of seeing 18 talented and very competent individuals grow and de- velop their legal and practice management skills over the last two years. I am now working with my fifth group during the third year of the program, and I'm again extraordinarily impressed with the calibre of the candidates. Candidates work through and manage simultan- eously files in seven different areas of law. They com- plete more than 100 different tasks during the training component on which they are offered feedback and, in many cases, assessment. Some of these tasks may occur several times to provide candidates with the oppor- tunity to develop and refine the desired skill over time, such as client interviewing, legal research and writing and docketing. Other tasks performed by candidates include: arguing motions; drafting commer- cial contracts, retainer letters, a will, statements of claim and defence; negotiating a separation agreement; open- ing and closing files; and the list goes on. I only wish that I had the benefits of such exhaustive training during my articles many years ago. Upon successful completion of the training compo- nent, candidates are eligible to move on to a work place- ment. During the four-month work placement compo- nent, more than 200 practitioners across the province open their doors to provide candidates with work place- ment opportunities. These range from in-house op- portunities in some of Canada's largest corporations to placements in all three levels of government, large and small private law firms, legal clinics and sole practices across the province. The LPP candidates are well trained and become excellent lawyers. I know that because I have hired and supervised several of them directly. The LSUC subcommittee mentions that " . . . in some ways the LPP delivery is superior to the Articling Pro- gram for consistency and attention to sole and small firm practice realities." I would argue the superiority of the training is relevant to all practice environments. If it is clear that the LPP ensures that licensing can- didates develop and refine the core legal skills outlined by the Federation of Law Societies of Canada and the practice management abilities necessary for admission to the bar, protection of the public and future success in practice, why is there a motion to wrap the LPP up early? I hope our benchers vote down the LSUC subcommit- tee recommendations. LT u Marni Dicker is executive vice president, general coun- sel and corporate secretary for Infrastructure Ontario. u SPEAKER'S CORNER

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