Is the New York state Legislature living in the world of William Shakespeare's Romeo and Juliet or Humpty Dumpty, the fragile character from a popular English nursery rhyme?

That's the question an appellate court in Albany is being asked as it weighs whether lawmakers were lawfully able to legalize daily fantasy sports nearly three years ago or if they violated the state constitution, as the lead attorney suing the state argued in his brief to the panel.

Cornelius Murray, a shareholder at Albany firm O'Connell and Aronowitz, argued that the Legislature should not have been allowed to do so because the game includes a fair amount of gambling, which is prohibited in New York without an amendment to the state constitution.

“Here the Legislature has 'found' that IFS is not 'gambling' because contestants who must pay to play are not betting on real teams, but 'fantasy teams' despite the fact that whether that fantasy team wins or loses the contest depends in turn on how real life athletes chosen by the contestant for that fantasy team's roster perform in subsequent real-life athletic events,” Murray wrote.

The Appellate Division, Third Department will be tasked with evaluating a decision from Albany County Supreme Court Justice Gerald Connolly that labeled daily fantasy sports as a form of gambling last year. Connolly, however, did not criminalize the sport in his decision. The appellate court will consider whether either part of the decision was a correct interpretation of state law.

“The answer to that question depends on whether we live in a Shakespearean world inhabited by Romeo and Juliet where substance trumps form, and a rose is, in fact, a rose; or whether we live in a parallel universe of alternative facts, like the one inhabited by Humpty Dumpty—and now by the New York State Legislature—where 'gambling' is not 'gambling' simply because the Legislature has decided to call it something else,” Murray wrote in the brief.

He represents four plaintiffs, each of whom either have a gambling disorder or are relatives of people with a gambling disorder. They brought the lawsuit against Gov. Andrew Cuomo and the state gaming commission in 2016 after the Legislature approved a bill to legalize daily fantasy sports.

Murray wrote in his appellate brief that the Legislature usurped the state constitution when it decided the game should not be considered gambling due a certain amount of skill involved. Daily fantasy sports allows players to compile a virtual team of real-life players on whose performance they can make a wager.

Connolly, in a decision last year, sided mostly with the plaintiffs—but not entirely. He labeled daily fantasy sports as gambling and struck down the state's regulations around the game, but chose not to criminalize it. The decision prompted an appeal both from Murray and attorneys for the state.

In his brief to the appellate court, Murray said the decision didn't accomplish what the plaintiffs were seeking: to have daily fantasy sports outlawed in New York until lawmakers amend the state constitution. Instead, Connolly's interpretation would allow companies to operate without penalty, despite the game being classified as gambling.

“The result is that major DFS operators like FanDuel and DraftKings continue to operate freely and openly in this State, notwithstanding the requirement in Article I, § 9 that no such gambling shall hereafter be authorized or allowed in this State,” Murray wrote.

Those companies have been allowed to operate as if Connolly's decision never happened while the ruling is appealed. It's common practice in litigation like this to have the lower court's ruling stayed with the appellate court mulls a decision. Murray had asked Connolly last year to reconsider his decision and, instead, write a new opinion that would outlaw daily fantasy sports due to its unpredictable nature. Connolly declined.

Murray is now seeking to have the appellate division uphold Connolly's decision to classify daily fantasy sports as gambling, but argued that the ruling should have gone further to prevent companies from operating in New York.

Attorneys for the state, meanwhile, have filed their own brief with the appellate court seeking to have Connolly's decision reversed, which would uphold the 2016 law that legalized daily fantasy sports.

Their main argument has been that, while daily fantasy sports may be partly unpredictable, the game's outcomes are largely dependent on the choices of its players. The constitution explicitly left it up to the Legislature to decide what should be considered gambling, and what should not, the state's attorneys argued.

“By leaving the term 'gambling' undefined and expressly delegating implementation authority to the Legislature, article I, § 9 necessarily conferred discretion on the Legislature to determine whether particular activities would constitute 'gambling,'” the state's appellate brief said. “Here, the Legislature providently exercised its delegated discretion.”

Lawmakers did not legalize daily fantasy sports on a whim, the state's attorneys argued. That's not untrue. The issue was among the more contentious of the 2016 legislative session, during which lawmakers were uncertain at times they would even act on it at all. It came to light after former Attorney General Eric Schneiderman moved to enjoin daily fantasy sports companies in 2015 from operating in New York based on the betting nature of the games.

It took state lawmakers the entire legislative session in Albany to come to an agreement on legalizing and regulating daily fantasy sports. The measure was approved just before the Legislature adjourned for the year in June 2016.

The state's attorneys argued in their appellate brief that the deliberative nature of how the bill was crafted and approved shows the Legislature considered whether it would be necessary to amend the state constitution as part of legalization. In the end, lawmakers decided they had the authority to legislate the games without infringing on the state's prohibition against gambling, the brief said.

“The Legislature conducted an extensive inquiry into the nature of interactive fantasy sports contests and made factual findings that such contests do not constitute 'gambling'' because they are not games of chance and because participants have meaningful influence over those outcomes,” the brief said. “The Legislature accordingly concluded that interactive fantasy sports are not a form of sports betting, but rather authorized them as mixed skill-and-chance contests, subject to regulation.”

Arguments on the appeal haven't yet been scheduled, but they're expected some time in the near future. Lawmakers in Albany, meanwhile, have not acted this year to amend the state law concerning daily fantasy sports or attempt to begin the multiyear process of amending the state constitution.

READ MORE: