Hermalyn Calls DraftKings Allegations ‘Unnecessary Character Assassination’ in Legal Response

In a legal response to DraftKings’ motion for a preliminary injunction, Fanatics’ Michael Hermalyn argues he did nothing wrong by accepting his new position at Fanatics. Instead, DraftKings’ former head of VIP claims the allegations amount to “unnecessary character assassination.”

Hermalyn’s legal team filed its opposition to DraftKings’ preliminary injunction request last Thursday, a week after DraftKings filed the request in Massachusetts District Court. The brief argues DraftKings has not “come close to proving irreparable harm,” and the court should deny the motion.

DraftKings’ strategy, as the brief describes, is to come to the court with “over-the-top accusations” to “create smoke where there is no fire.”

Brief Brands Allegations ‘Smoke and Mirrors’

Hermalyn argues DraftKings’ case “distorts reality” and doesn’t present credible evidence. Further, the document claims the “brazen attempts to torch Hermalyn’s reputation” are part of the company’s “go-to playbook.”

From the filing:

Indeed, DK has a long history of aggressively smearing employees who leave or seek greener pastures with other employers. Underlying DK’s attacks is the fact that, since Fanatics announced it was launching an online sportsbook in 2021, 186 DK employees have applied for a position with Fanatics. This, of course, has nothing to do with Hermalyn, and everything to do with DK employees attempting to flee a culture of retribution.

Hermalyn’s lawyers contend that DraftKings is “trying to halt this trend” by making an example of Hermalyn and instilling fear in other employees looking to jump ship.

As a result, the brief says that the court should not be “misled by DK’s bombast and smoke and mirrors” and should deny DraftKings’ request.

Hermalyn is not the bad actor here. When DK’s “evidence” is actually examined, DK’s narrative completely crumbles.

Hermalyn Accuses DK of Exacting Retribution

According to the brief, DraftKings’ filings have abandoned the “heart of its salacious narrative,” and with good reason. Namely, the narrative was a “fabrication” designed to “malign and destroy the reputation of a senior employee” with the “audacity to seek out a better opportunity.”

Hermalyn, the filing asserts, did not use, disclose, or misappropriate DraftKings’ information.

Neither has he:

  • Solicited any DraftKings employees
  • Solicited any DraftKings customers

The brief argues DraftKings’ customer solicitation claims “make no sense” because sportsbooks’ relationships with customers are not exclusive.

On DraftKings’ part, the brief claims the company failed to prove its arguments supporting the preliminary injunction.

Just as critically, Hermalyn argues, DraftKings failed to prove it suffered harm that would warrant the “extraordinary injunctive relief it seeks.”

DK carries the heavy burden of proving—with actual evidence—that it is entitled to a PI that, as DK requests it, would upend the status quo by removing Hermalyn from his job at Fanatics, including his role on the executive team and as Head of its Los Angeles office. DK has not come close.

Though Hermalyn joined Fanatics nearly two months ago, DraftKings has yet to claim the loss of any particular customer or employee to Fanatics, the brief continues.

To be clear, this is not a case in which an employee was hired to move a book of business from one company to another: Fanatics already has 100 million customers in the U.S., each of DK and Fanatics have tens of thousands of VIP customers, and it is well known that many if not all those customers overlap.

Further:

There is no harm, much less irreparable harm, justifying DK’s requested PI.

Injunction Could End ‘Once-in-a-Lifetime’ Opportunity

Hermalyn, on the other hand, would face “real irreparable harm” if the court grants the injunction, the brief cautions.

Hermalyn’s coveted role as President of Fanatics VIP and Head of Fanatics’ Los Angeles office means that he is currently just one of seven people on Fanatics’ executive team, out of 16,000 employees, reporting directly to the CEO.

If Hermalyn is unable to perform this role for an entire year, then he is concerned that Fanatics will be forced to hire someone else to fulfill it, and he not have this once-in-a-lifetime career opportunity.

According to the filing, Hermalyn ceded access to his iCloud account due to the DraftKings investigation. As a result, his caller and message ID are no longer available on his new phone. Additionally, he cannot access personal and family photos or geo-tracking for his “young daughters.”

Even if the court were to apply Massachusetts law, DraftKings’ restrictive covenants would still be invalid, Hermalyn claims.

DK’s requested PI essentially seeks to force Hermalyn to be benched as punishment for leaving…

These sweeping restrictions are unlawful and entirely unwarranted.

Finally, Hermalyn’s brief argues that public interest “disfavors” an injunction. For these reasons, the brief concludes that the court should deny DraftKings’ entire motion.

All the smoke that DK is pointing to is self-generated by DK’s efforts to torch a former employee who chose to leave for the greener pastures at Fanatics, and there is no basis in fact or in law for DK’s requested relief.

About the Author

Robyn McNeil

Robyn McNeil

Robyn McNeil (she/they) is a Nova Scotia-based writer and editor, and a lead writer at Bonus. Here she focuses on news relevant to online casinos, while specializing in responsible gambling coverage, legislative developments, gambling regulations, and industry-related legal fights.
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