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Court Refuses to Dismiss Securities Class Action Claiming DraftKings NFTs Are “Securities” | Skadden, Arps, Slate, Meagher & Flom LLP

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Skadden, Arps, Slate, Meagher & Flom LLP

Securities litigation arising from the purchase or sale of digital products such as cryptocurrencies, non-fungible tokens (NFTs), and security tokens has proliferated in recent years. A sticking point in these cases is whether the digital product purchased is a “security” subject to federal or state securities laws.

On July 2, 2024, Judge Denise Casper of the U.S. District Court for the District of Massachusetts ruled in Dufoe v. DraftKings, Inc. that the plaintiff had adequately alleged that DraftKings’ NFT transactions were investment contracts and therefore “securities” under the U.S. Supreme Court’s seminal test set forth in Howey.

The district court based this decision on allegations, accepted as true at the pleadings stage, that DraftKings’ NFT sales reflected:

  • A ““joint enterprise” through horizontal commonality because (i) DraftKings allegedly pooled assets by reinvesting revenue generated from the sale of the NFTs into its NFT business, and (ii) NFT purchasers allegedly shared profits and risks because DraftKings controlled the online “marketplace” through which the NFTs were traded.
  • A “reasonable expectation of profits solely from the efforts of others” based on alleged promotional statements by DraftKings about the investment prospects presented by NFTs and because the value of NFTs allegedly depended on the success of DraftKings’ “marketplace.”

Dufoe marks only the second case in which a court has addressed whether sales of NFTs can constitute securities under the Howey rubric. In 2023, Judge Victor Marrero of the U.S. District Court for the Southern District of New York ruled in Friel v. Dapper Labs, Inc. that a complaint adequately alleged that the National Basketball Association’s (NBA) sale of Top Shot Moments NFTs constituted investment contracts. The Friel court acknowledged that this conclusion was a “tough call.”

While Dufoe and Friel provide a framework for analyzing NFT transactions under Howey, neither decision predetermines an outcome in future cases — or even in cases before the courts based on a complete factual record.1 On the contrary, both courts made clear that their respective decisions were limited, fact-dependent, and motivated by specific allegations that could be challenged on summary judgment or at trial.

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DraftKings is a digital sports entertainment and gaming company. In August 2021, DraftKings began selling NFTs through the DraftKings Marketplace (the Marketplace), an online platform owned and operated by DraftKings. In February 2022, DraftKings launched so-called “gamified NFTs.” Owners of gamified NFTs could use their NFTs in “Reignmakers” contests to win cash prizes. DraftKings NFTs were minted, or created, on the Polygon blockchain that exists independently of DraftKings.

DraftKings NFT owners could resell their NFTs on the DraftKings Marketplace. Owners could also potentially sell their NFTs outside of the Marketplace. But to make a sale outside of the Marketplace, the owner must first transfer the NFT from the Marketplace to the owner’s personal digital wallet, and DraftKings reportedly retained the “exclusive right” to allow or prohibit such a transfer.

DraftKings allegedly promoted the NFTs, including through an online chat room and on social media.

Plaintiff, an alleged purchaser of DraftKings NFTs, asserted a putative class action lawsuit against DraftKings and several of its executives alleging that (i) DraftKings NFTs constituted unregistered securities and (ii) defendants operated an unregistered securities exchange. Plaintiff alleged violations of Sections 5, 12(a)(1), and 15 of the Securities Act of 1933; Sections 5, 15(a)(1), 20, and 29(b) of the Securities Exchange Act of 1934; and Chapter 110A, Sections 201(a) and 301 of the Massachusetts General Laws.

The court’s decision

Defendants moved to dismiss the complaint in its entirety on the grounds that the DraftKings NFTs are not “securities” subject to federal or Massachusetts securities laws. The court denied the motion, holding that plaintiff adequately alleged that the DraftKings NFTs were “securities” under Howey based on the facts alleged in the complaint, accepted as true for purposes of the motion.

The court applied the standard established in Howey more than 75 years ago to assess whether a transaction constitutes an investment contract and thus a “security” subject to federal securities laws and requirements. Under Howey, an investment contract exists when a person (i) “invests his money” (ii) “in a common enterprise” and (iii) “is led to expect profits solely from the efforts of the promoter or a third party.”

Defendants did not contest the first point—investment of money—at the pleading stage. The court found that plaintiff had adequately alleged facts to support the remaining two points:

Joint venture. A plaintiff may allege a common enterprise through “horizontal commonality,” or a pooling of assets from multiple investors in such a way that all share in the profits and risks of the enterprise. The court acknowledged that with respect to NFTs—in contrast to other forms of digital goods—“it is less obvious that the risks and profits are shared among all investors because each NFT is defined as unique or nonfungible.” The court, however, found that plaintiff adequately alleged that all DraftKings NFT purchasers shared in the risks and profits of the “enterprise.” The court relied on allegations that DraftKings reinvested revenue generated from the sale of DraftKings NFTs into its business, including for purposes of promoting the DraftKings-controlled Marketplace on which the NFTs were traded. Furthermore, the value of the NFTs was allegedly dependent on the Marketplace. The court noted, “if DraftKings were to close the Marketplace or interest in the Marketplace evaporated, the value of the NFTs would plausibly fall to zero.”

Reasonable expectation of profits only from the efforts of others. To claim a reasonable expectation of profits solely from the efforts of others, a plaintiff must allege facts that support two independent requirements.

First, a plaintiff must allege a reasonable expectation of profits. The court found that the plaintiff met this standard based on statements made by DraftKings and the individual defendants about the NFTs. These statements included, for example, details about the transaction histories of DraftKings NFTs, news reports about the “biggest rises and falls” within the Marketplace, and proclamations that buyers would “keep the open market profit of their cards.” The court also relied on allegations that the public viewed DraftKings NFTs as an investment, such as through chat room correspondence comparing the Marketplace to the stock market and discussing ways to make money trading DraftKings NFTs.

Second, a plaintiff must allege that a buyer’s expectation of profit is dependent on the efforts of others. The court accepted the plaintiff’s claims that the NFTs were dependent on the success of the Marketplace and therefore DraftKings, even though the NFTs were not minted on a proprietary DraftKings blockchain. The court reasoned that “it is plausible that users did not, and arguably could not, withdraw their NFTs from DraftKings’ system and place them in their own wallets.” Furthermore, DraftKings allegedly undertook a substantial effort to promote the Marketplace and the NFTs.

Practical implications

Dufoe broadly traces Friel’s reasoning, but with a twist: In Friel, the defendant, Dapper Labs, was accused of controlling the “Flow Blockchain” on which NBA Top Shot Moments NFTs were traded. That claim was at the heart of the court’s determination that the plaintiff had adequately alleged horizontal commonality and a reasonable expectation of profits from the efforts of others.

In Dufoe, on the other hand, DraftKings’ NFTs were traded on the Polygon blockchain, which “exists independently of DraftKings” and is not controlled by DraftKings. The Dufoe court ruled that this was a distinction without a difference for purposes of Howey because the plaintiff plausibly claimed that all trading occurred through the Marketplace and that DraftKings could prohibit transactions outside the Marketplace at its sole discretion.

Dufoe and Friel are not the final word on whether NFT sales constitute securities subject to securities laws. Both are district court decisions that are subject to appeal. Moreover, the decisions are based on specific factual allegations in the case that can be rebutted on summary judgment or at trial.

Indeed, the court in Dufoe began its analysis by noting that it “need not decide whether each and every NFT transaction should be considered an investment contract.” Instead, the court “assesses[d] only whether Dufoe plausibly alleged that DraftKings’ NFTs in the Marketplace context are securities.” The court in Friel also tied its decision to the alleged facts and noted that each NFT project “must be evaluated on a case-by-case basis.”

Dufoe also catalogued factual disputes that he failed to resolve at the pleadings stage that could alter Howey’s analysis on a full factual record, such as defendants’ allegations that:

  • DraftKings commingled NFT funds with its “vast collection of other revenue,” undermining the plaintiff’s claim that there was sufficient pooling of assets to establish horizontal pooling.
  • The prices of DraftKings NFTs did not move in tandem and instead depended on other factors specific to a given NFT, refuting the plaintiff’s claim that all users shared the risks and profits of the venture sufficiently to establish horizontal commonality. The court noted that “[a]At a later stage of the litigation, DraftKings will have the opportunity to present evidence that investors “could realize profits or suffer losses independently of the fortunes of other purchasers” and thus negate horizontal commonality.
  • Defendants did not, in fact, control the primary and secondary markets for their NFTs because users could trade outside of the Marketplace.
  • Plaintiff’s expectations of profit were unreasonable or were motivated by consumer intent (e.g., participation in Reignmakers contests). The court acknowledged that DraftKings reduced the price of NFTs over time, contradicting an expectation of profit, and that the complaint alleged “at least a mixed motive of consumption and speculation on the part of NFT purchasers.” But the court concluded that “these issues are not suitable for resolution in a motion to dismiss, where all plausible inferences are drawn in favor of [the plaintiff].”

_______________________________________

1 The parties in Friel entered into a settlement agreement prior to the completion of discovery and summary judgment briefing. The settlement is subject to final approval by the court.

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NFTs

RTFKT Announces Project Animus Reveal, Launches Egg Unboxing Event Amid Mixed Reactions | NFT CULTURE | NFT News | Web3 Culture

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RTFKT Announces Project Animus Reveal, Launches Egg Unboxing Event Amid Mixed Reactions | NFT CULTURE | NFT News | Web3 Culture

RTFKT, the innovative creator-led company renowned for its cutting-edge sneakers and metaverse collectibles, has officially unveiled its highly anticipated collection, Project Animus. This project marks a significant milestone in RTFKT’s journey, introducing a new dimension to its digital universe after a long period of development. However, the initial market response has been disappointing, with the revealed Animi trading at a floor price of 0.05 ETH, significantly lower than the eggs’ floor price of 0.09 ETH.

The Genesis of the Project Animus

Initially introduced in October 2022, Project Animus introduces a unique ecosystem of digital creatures called Animi. These Animi are designed to enhance Clone X’s avatars, offering an immersive and engaging experience for the community. The recent reveal showcased a diverse range of Animi species, each with distinct design traits and elemental attributes, breaking away from traditional trait-based rarity systems.

A New Digital Frontier: The History and Evolution of Project Animus

The Animus Project is RTFKT’s latest intellectual property, promising to revolutionize the NFT space with its unique digital creatures. The journey kicked off on October 8, 2022, with an interactive teaser event called “The Eggsperience.” This livestream event allowed attendees to explore a virtual Animus Research Facility, generating intrigue and excitement among the community.

Renowned artist Takashi Murakami played a significant role in the project, revealing the first Murakami-themed Animus creature, Saisei, on April 30, 2023. This collaboration added a layer of artistic prestige to the project, further elevating its status within the NFT community.

Animus Egg Incubation: A Journey from Egg to Animi

Clone X NFT holders had the opportunity to claim an Animus Egg until March 1, 2024. This was followed by the Animus Egg Hatching event, which ran from May 7 to June 4, 2024. During this period, holders of several RTFKT NFTs, including Clone X, Space Pod, Loot Pod, Exo Pod, and Lux ​​Pod, were able to use a points-based system to increase their chances of hatching rarer Animi. The limited supply of Project Animus Eggs is capped at 20,000, with no public sale planned.

Mixed market reception

Despite the excitement and innovative features, the market reaction to the reveal of Project Animus has been lukewarm. Animi is currently trading at a floor price of 0.05 ETH, significantly lower than the eggs’ floor price of 0.09 ETH. This discrepancy has led to disappointment among some collectors who had high expectations for the project.

What Awaits Us: The Future of Project Animus

Following the reveal, RTFKT plans to release a collection of exclusive Animus Artist Edition characters. Holders of Clone X Artist Edition NFTs are guaranteed to get one of these special editions. The distribution will include 88 Special Edition Animus, with 8 Mythic (Dragon Sakura), 40 Shiny, and 40 Ghost Animus. The odds of receiving a Special Edition Animus are the same for all Eggs hatched, regardless of the points accumulated.

The remaining Animus characters will be distributed among unhatched Eggs, encompassing Special Edition Animus, as well as Cosmic Animus and Murakami Element from Generation 1, Generation 2, and Generation 3.

Conclusion

RTFKT’s Project Animus represents a bold step forward in the NFT space, combining cutting-edge technology with artistic collaboration to create an immersive and innovative digital ecosystem. However, the initial market reception highlights the challenges of living up to high expectations in the ever-evolving NFT landscape. As the project continues to evolve, it promises to deliver unique experiences and opportunities for its community, solidifying RTFKT’s position as a leader in the metaverse and digital collectibles arena.

Summary: RTFKT has unveiled Project Animus, introducing a unique ecosystem of digital creatures called Animi designed to enhance Clone X avatars. Despite the excitement, market response has been mixed, with Animi trading at a lower floor price than eggs. The project kicked off with an interactive event in October 2022, featuring collaborations with artist Takashi Murakami. Following the reveal, RTFKT will release special edition Animus characters. The total supply of Animus Eggs is limited to 20,000, with no public sale planned.

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The Olympics have reportedly ditched Mario and Sonic games in favor of mobile and NFTs

TokenTalk Staff

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The Olympics have reportedly ditched Mario and Sonic games in favor of mobile and NFTs

The long and historic partnership between Nintendo and Sega to create video games for the Olympics reportedly ended in 2020 as event organizers sought opportunities elsewhere.

Lee Cocker, who served as executive producer on several Mario & Sonic Olympics titles, said Eurogamer the International Olympic Committee let the licensing agreement lapse because it “wanted to look at other partners, NFTs and esports.”

“Basically, the IOC wanted to bring [it] “Turn inward and look for other partners so you can get more money,” Cocker added.

The 2024 Summer Olympics kicked off in Paris last week, but there were no Mario & Sonic games available in time for the event to begin – the first time this has happened since the original release in 2007 to coincide with the 2008 Beijing Summer Olympics.

Over the past two decades, there have been four Mario and Sonic adaptations for the Summer Olympics, as well as two for the Winter Olympics.

This year, instead of a Nintendo/Sega title, the IOC released Olympics Go! Paris 2024, a free-to-play mobile and PC title developed by nWay, which has worked on several Power Rangers games.

Olympics Go! allows players to compete in 12 sports and unlock NFTs from the Paris 2024 digital pin collection.

The original Mario & Sonic at the Olympic Games was announced in March 2007 and marked the first time the two mascots – once archrivals in the console wars of the 1990s – appeared together in a game.



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DraftKings abruptly shuts down NFT operation, leaving collectors panicking over vast holdings of digital tokens

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DraftKings abruptly shuts down NFT operation, leaving collectors panicking over vast holdings of digital tokens

DraftKings, the daily fantasy sports and sports betting company, abruptly shut down a program called Reignmakers on Tuesday, posting a notice on its website and associated app and sending a mass email to some subset of its user base. Reignmakers, which the company launched in 2021, offered pay-to-play competitions in NFL football, PGA Tour golf and UFC mixed martial arts. The decision to eliminate the entire program, DraftKings says, was not made lightly but was forced “due to recent legal developments.”

DraftKings has yet to specify what “recent legal developments” are troubling its now-dead Reignmakers product. The company was sued in U.S. District Court in 2023 by a Reignmakers player named Justin Dufoe, who accuses the company of dealing in unregistered securities, taking advantage of relatively unsophisticated “retail investors,” and failing to market and support Reignmakers to the degree necessary to return to its users the financial benefits expected. DraftKings filed a motion in September to dismiss Dufoe’s complaint, but that motion was denied on July 2. A scheduling conference was held by the parties on July 29; Reignmakers was permanently shut down on July 30. A DraftKings spokesperson reached by Defector on Wednesday declined to confirm whether Dufoe’s complaint is the “recent legal development” that forced the company’s hand.

Users of the Reignmakers NFL product, who in recent days began murmuring on social channels about a notable lack of DraftKings activity so close to the start of the NFL preseason schedule, were caught off guard and, in some cases, devastated by the news. Members of the DraftKings Discord server, where all Reignmakers-related channels were abruptly shut down and locked following the announcement, flooded a general channel in various states of panic, sharing news, theorizing, lamenting, and, in some cases, openly worrying about whether it would be possible to recoup any decent fraction of the genuinely impressive sums of money they had invested in this DraftKings product.

Reignmakers is nominally a daily fantasy contest—users build lineups of players and then pit those lineups against other users’ lineups for cash prizes—but it’s actually a distributor of nonfungible digital tokens (NFTs), originated and sold by DraftKings, and then frequently resold on a dedicated secondary marketplace also hosted by DraftKings. At the lineup-building level, Reignmakers functions like a card-collecting game, with artificial scarcity driving the prices of the most coveted cards to insane, eye-popping heights. Reignmakers NFTs are tiered and offered in timed drops designed to heighten the sense of scarcity. A user can enter a lower-tier contest using a collection of NFTs that may have cost a few hundred dollars in total (or that were earned by purchasing random packs of NFTs that offer generally low odds of scoring top assets) and throw their lot in with hundreds of casual users competing for relatively unimpressive rewards. Random packs at the lowest tier would have prices as low as a few dollars; mid-tier cards—Star and Elite tiers, I’d guess—could cost a player upwards of $1,000.

But players interested in hunting down the biggest payouts, not just from games but from leaderboard prizes and other assorted prizes, would need to enter higher-tier games, and to enter the higher-tier games, a user’s collection needed to include higher-tier NFTs. DraftKings ensured that these cards were extremely scarce and could only be purchased directly on the marketplace at prices that any reasonable person would consider utterly insane.

For example, the highest-tier Reignmaker contests (called the Reignmakers tier, of course) have in the past been limited to listings with at least two of the highest-tier, rarest NFTs (also the Reignmaker tier) plus three NFTs from the second-highest tier (Legendary). NFTs at these tiers are expensive. Not just expensive in the way that, like, a steak dinner is expensive, but expensive in the way that buying even one of them should trigger a mandatory visit to a gambling addiction counselor, if not sirens and a straitjacket. Back in 2022a Reignmaker-level Ja’Marr Chase NFT from something called the Field Pass Promo Set could be purchased directly from the DraftKings Reignmaker Marketplace for a whopping $32,100.

Screenshot via YouTube

Reignmakers users purchased NFTs at various levels with the expectation that owning them would convey better odds of winning contests hosted on DraftKings. This was the gamification element of Reignmakers, which emerged several months after DraftKings began trading and minting its NFTs. But as with all NFTs, a very large part of the real appeal for its buyers was the expectation, however insane, that these worthless, virtually worthless, infinitely duplicable digital images would increase in value over time. Now that both the Reignmakers game and the Reignmakers marketplace have been shut down, Reignmakers NFT holders are worried that their investments may have suddenly lost all monetary value. One Discord user described Tuesday as “a bad day to wake up and realize you have $2,000 worth of unopened NFL Rookie Packs”; Another user asked the group if they should expect “a refund” on the $10,000 they’ve already spent on Reignmakers NFTs this year. A pessimistic Reddit user posted tuesday that they would sue DraftKings if they were forced to take a total loss on a Reignmakers NFT collection worth approximately $100,000.

The game (scam?) was built to make numbers like these not only possible, but somewhat easily achievable. A user who intended to compete from a position of strength in multiple overlapping high-profile contests at the same time, and who had been in the blockchain madhouse for a period of years, could easily have spent six figures on Reignmakers NFTs. DraftKings used non-gaming incentives to entice players to spend more and more money, much like casinos give away free suites to players who over-bet on blackjack. Another Reddit user lamented the loss of the additional prizes and ranking bonuses he had hoped to earn in the upcoming NFL season by having a portfolio of NFTs that had reached the highest levels of value and prestige. “I was already loaded up on 2024 creation tokens and rookie debut cards,” said this Reignmakers userwho claimed his portfolio was finally “close to the top 250 overall.”

Dufoe’s complaint says the NFTs minted by DraftKings for Reignmakers qualify as securities, function like securities, and should be regulated as securities. In its motion to dismiss, DraftKings attempted to position its NFTs as game pieces — eye-wateringly expensive, yes, but essentially the same thing as Magic: The Gathering cards or Monopoly hotels. The court, in resolving these arguments, applied what’s known as “the Howey test,” referencing a case from 1946 in which the U.S. Supreme Court established a standard for determining whether a specific instrument qualifies as an investment contract. Judge Dennis J. Casper, in ruling against DraftKings’ motion, concluded that Dufoe could plausibly argue that Reignmakers’ NFT transactions represent “the pooling of assets from multiple investors in such a manner that all share in the profits and risks of the enterprise,” arguing that DraftKings’ absolute control over the game and marketplace effectively binds the financial interests of the company and the buyers, the latter of whom depend on the viability of both for their NFTs to retain any value.

Reignmakers users are different from Monopoly players in at least one crucial way: A person who buys a Monopoly board has no expectation from Hasbro that those little red and green pieces will appreciate in value. It’s a game! No matter what any hysterically conflicted party may say to the contrary, that’s not what NFT collecting is. DraftKings had been selling Reignmakers NFTs for months before they were gamified, and Dufoe, in his complaint, cites public comments made by DraftKings spokespeople that seem to explicitly position Reignmakers NFTs as assets with independent monetary value beyond their utility in Reignmakers contests. Judge Casper, in his ruling on the motion to dismiss, cites a Twitter account associated with a podcast run by DraftKings CEO Matthew Kalish, who in a tweet described NFTs as “the opportunity to invest in startups, artists, operations, and entrepreneurs all at once.” This is probably the kind of thing that NFT peddlers should stop saying. This advice assumes, of course, that NFTs will continue to exist as instruments on the other side of this and other lawsuits.

DraftKings has posted a worryingly sparse FAQ at the bottom of the your ad Tuesday, anticipating but largely failing to address questions from players who see this as yet another in a long line of brutal blockchain rug pulls. In a hilarious reversal of existing Reignmakers policy, Reignmakers users are now allowed by DraftKings to withdraw their Reignmakers NFTs from their DraftKings portfolios and into their personal NFT wallets, where those NFTs will have precisely zero value, to anyone, for the rest of all time. There’s also vague language about Reignmakers users having the option to “relinquish” their NFTs back to DraftKings in exchange for “cash payments,” subject to “certain conditions” and according to an as-yet-unspecified formula that will take into account, among other things, the “size and quality” of a player’s collection.

Reignmakers users are not optimistic. Those who claim to have been victims of other blockchain market crashes are warning their peers on Discord and Reddit to expect payouts that amount to pennies on the dollar; in the absence of any clarifying information, users are unsure whether cashing out their NFTs from Reignmakers to their personal NFT wallets, for reasons that completely pass any and all understanding, would effectively preclude the possibility of delivering these silly digital tokens back to DraftKings. It remains to be seen what exactly DraftKings has in mind with the “certain conditions” attached to the delivery process. There is much that has yet to be resolved. A DraftKings spokesperson contacted by Defector indicated that more time would be needed to answer a list of specific questions and issued a statement noting that it is “in DraftKings’ DNA to innovate and disrupt to provide the best possible gaming experiences for our customers.” The original complaint is embedded below.

Do you know anything about the demise of Reignmakers, either from the consumer side or from the DraftKings side? We’d love to hear from you. Get it in touch!

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There Will Be No More ‘Mario & Sonic’ Olympics Because of NFTs

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There Will Be No More 'Mario & Sonic' Olympics Because of NFTs

Nintendo and SEGA have been teaming up with the Olympics for several years now in the popular Mario & sonic in the Olympic Games series, but a new report claims the International Olympic Committee has abandoned the series in favor of new deals in eSports and NFTs.

According to Eurogamer“A veteran behind the series,” Lee Cocker, told the outlet that the IOC chose not to renew its license with SEGA and Nintendo, letting it expire in 2020. “They wanted to look at other partners and NFTs and eSports,” Cocker told Eurogamer. “Basically, the IOC wanted to bring [it] turn inward and look for other partners so they could get more money.”

Mario & Sonic at the Olympic Games is a series that has been running since 2008, with six main games covering the regular and Winter Olympics. In the games, players could control various characters from the Mario and Sonic franchises and compete in Olympic sporting events.

It’s no secret that NFTs are a big part of this year’s Paris 2024 Olympics. Olympics Go! Paris 2024 is a mobile and mobile-connected game your site states that players can “join the excitement of the Paris 2024 Olympic Games with nWay’s officially licensed, commemorative NFT Digital Pins collection honoring Paris 2024!”

As for eSports, Saudi Arabia will host the ESports Olympic Games in 2025. This is part of a partnership with the Saudi National Olympic Committee (NOC) that is expected to last for the next 12 years and is expected to feature regular events.

IOC President Thomas Bach said: “By partnering with the Saudi NOC, we also ensure that Olympic values ​​are respected, in particular with regard to the game titles on the programme, the promotion of gender equality and the engagement with young audiences who are embracing esports.”

In other news, Someone claimed they’re suing Bandai Namco because Elden Ring is too difficult.



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