面对 NFL 球员工会起诉,“退圈”的 DraftKings 竟主动承认 NFT 是证券?

链捕手Published on 2024-08-30Last updated on 2024-08-30

作者:Zen,PANews

 

近日,美国国家橄榄球联盟球员协会 (NFLPA) 指控数字体育娱乐和游戏公司 DraftKings 逃避了其 NFT 球员许可协议的付款义务。在放弃 NFT 业务后,涉嫌出售未注册证券而遭到集体诉讼的 DraftKings 又背上了一起官司。

而有趣的是,在与 NFLPA 的纠纷中,DraftKings 的立场似乎已从反驳转变为积极承认「NFT 就是证券」。

放弃 NFT 业务:驳回集体诉讼的动议遭到否决

今年 7 月底,Draftkings 在给用户的电子邮件中表示:「经过慎重考虑,DraftKings 决定终止 Reignmakers 和我们的 NFT 市场,立即生效。这一决定并非草率做出的,我们相信这是正确的做法。」

Draftkings 的 NFT 市场于 2021 年 8 月推出,该公司的联合创始人 Matt Kalish 曾透露,推出 NFT 业务的部分动机来自于当时 NBATopShot 的 NFT 系列受到热烈追捧。有着现成的成功案例,Draftkings 选择「套模版」,直接拿下北美四大职业体育运动联盟之首的 NFL 以及其他一些顶级运动员的授权,基于 Polygon 区块链为用户提供以这些运动员为主题的数字收藏品。

在 NFT 大火的那段时期,Draftkings 的 NFT 战略迅速大获成功。其平台在约半年时间发布了 116 个 NFT 收藏品,总销售收入达 4400 万美元,其中第一批汤姆·布雷迪(Tom Brady)主题的 NFT 系列一经推出即立刻售罄。

而当这股热潮褪去,就像其他 NFT 平台一样,Draftkings 也开始官司缠身。2023 年 3 月,Draftkings 遭集体诉讼,诉讼称 DraftKings NFT 构成投资合同,因此应根据联邦法律作为证券进行监管。DraftKings 则辩称其 NFT 不是证券,并试图驳回此案,提出了驳回集体诉讼的动议。今年 7 月 2 日,马萨诸塞州的联邦法官驳回了 DraftKings 的动议。在长达 24 页的裁决中,法院指出原告有充分理由指控 DraftKings NFT 符合最高法院豪威测试对投资合同的法律定义。

法院还将此案与 NBATopShot 开发商 Dapper Labs 案进行了区分,指出 DraftKings 实际上通过其 Reignmakers 产品创建了一款可以运行的梦幻体育游戏。不过,由于 Reignmakers 是在 NFT 首次销售几个月后推出的,因此这并不能否定投资意图的合理指控。

DraftKings 的微妙立场:NFT 到底该不该算证券?

在下决心放弃 NFT 业务后,DraftKings 也决定不再履行与 NFLPA 的协议,并向后者表示从 7 月 30 日起不再向其付款。NFLPA 闻讯后立即发起诉讼,寻求因「预期违约」而获得的赔偿。该诉讼中还强调了该公司五名高管自 2021 年以来的总薪酬为 2.61 亿美元,并表示这些薪酬约为其欠 NFLPA 授权人薪酬的 4 倍。经过计算,NFLPA 共向 DraftKings 寻求约 6500 万美元。

在取消协议时,DraftKings 强调了合同中的一项条款,该项条款允许「在政府、监管或司法机构『认定』NFT 构成『证券』的情况下」终止交易。DraftKings 认为,马萨诸塞州地方法院驳回其动议正是发生这种情况的证明。

另一方面,NFLPA 表示法院的判决并未确定 NFT 就是证券,其律师则指出:「DraftKings 决定拒绝继续履行与 NFLPA 达成的许可协议的动机很简单:曾经火热的 NFT 市场已经降温。」他还补充说道:「尽管 DraftKings 竭尽全力混淆视听,但最终这个案件还是非常简单的。DraftKings 无法将其授权的知识产权商业化并盈利,这并不能成为其不履行义务的借口,DraftKings 必须支付应当的费用。」

Flow 区块链和 NBA Top Shot 开发商 Dapper Labs 因涉嫌将 NFT 作为未注册证券出售而于 2021 年遭到起诉,经过漫长的诉讼流程,其与原告顺利达成和解协议并支付 400 万美元,原告放弃了未来声称 Top Shot NFT 是证券的权利。

然而,关于 NFT 究竟是否为未注册证券仍然争议颇多,日前 NFT 市场 OpenSea 就收到美国 SEC 发出的 Wells 通知,其认为该平台上的 NFT 可能属于证券范畴,威胁对 OpenSea 提起诉讼。OpenSea 认为 NFT 本质上是创意商品,不应按证券法规监管。并承诺提供 500 万美元,用于帮助收到 Wells 通知的 NFT 创作者和开发者支付法律费用,并誓言捍卫行业利益。

而对已经退出 NFT 行业的 DraftKings 而言,比起对 NFLPA 的千万美元赔偿,承认 NFT 属于未注册证券,并再次学习其「模版」NBA Top Shot,向集体诉讼方予以一定赔偿或许是更合算的买卖。围绕 DraftKings 的集体诉讼案目前将进入调查阶段,其结果可能会成为 NFT 最终是否被视为证券的先例,并对未来的诉讼产生影响。

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