Fanatics exec files opposition to DraftKings' injunction after 'character assassination'

A former DraftKings employee has filed his opposition to the sportsbook's motion for an injunction that claimed he worked as a "double-agent" to feed information to his new employer and solicit workers.

Michael Hermalyn worked for the sportsbook for nearly 3½ years as senior vice president of growth and business development before joining Fanatics last month. 

DraftKings says Hermalyn "stole" Super Bowl documents from a non-company device during his conversations with Fanatics CEO Michael Rubin and solicited customers and employees.

Hermalyn says the documents were not downloaded and just viewed on his iPhone within the parameters of his normal work at DK, and DraftKings "authorized" Hermalyn's personal phone "to use for work, just like every other DK employee."

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"Hermalyn regularly used his phone to view DK documents in connection with his DK work – this was not something that he started to do out of the blue after his discussions with Fanatics began," court documents state.

"DK insinuates Hermalyn did something wrong because he used his personal phone. But what DK hides from the Court is that DK does not give any of its employees company-issued phones, and the use of personal devices for work is allowed and widespread at DK – indeed, it is required to do the job.

"Even DK’s own Chief Information Security Officer, Brian Harris, admitted that he uses his personal iPhone for work."

The filing also states that since Fanatics announced it was launching a sportsbook in 2021, 186 DraftKings employees have applied for roles there.

"This, of course, has nothing to do with Hermalyn, and everything to do with DK employees attempting to flee a culture of retribution," the filing says. "Trying to halt this trend, DK attempts to make an example out of Hermalyn, transparently to instill fear in other DK employees looking to jump ship and halt lawful recruiting activity by Fanatics."

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DraftKings argued Hermalyn "solicited" two of those employees, which Hermalyn's filing says is false. Those employees reached out to Hermalyn less than 24 hours after he started at Fanatics, "not the other way around," the filing says.

"DK also ignores that both purportedly solicited employees remain at DK. Hermalyn has been walled off from hiring at Fanatics," the filing says.

DraftKings also accused Hermalyn of lying about attending a funeral to take a trip to Los Angeles to meet with Fanatics brass. Hermalyn posted an ode to his friend, Ben Jankowski, on LinkedIn and shared a photo of the two of them together.

"[C]all someone today and tell them how much you care about them. It matters. Ben, love you dude. We all miss you," Hermalyn wrote in the post, in which he called Jankowski a "friend of mine."

"DraftKings, Inc.’s ("DK") strategy is to attempt to create smoke where there is no fire," Hermalyn's filing says. "DK comes to this Court with over-the-top accusations – that are directly contrary to the evidence and DK’s own internal records. … Rather than develop credible evidence, DK liberally distorts reality and resorts to unnecessary character assassination of its former employee. … In fact, the evidence shows that Hermalyn did nothing wrong.

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"The Court should not be misled by DK’s bombast and smoke and mirrors, and should deny DK’s requested (injunction). Hermalyn is not the bad actor here. When DK’s ‘evidence’ is actually examined, DK’s narrative completely crumbles."

Hermalyn heard from a friend that Fanatics was hiring in early January, and first met with Rubin Jan. 23. He was offered a role a few days later, resigned from DraftKings, and started with Fanatics on Feb. 1.

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