The Mouthpiece


By Martin Owens
Contributing Editor


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    Martin Owens

    Poker a game of skill? April Fool!

    Pennsylvania appeals court strikes the usual blow against reason

    "Because, Because, Because, Because, Becaaaaause!"
    The Wizard of Oz


    Philadelphia, PA (Sports Network) - One step forward, one step back. A Pennsylvania appellate court ruled last week that Texas Hold 'Em is not, after all, a game of skill. Now to be honest, there was not a lot riding on that decision. The defendant was charged with the relatively mild offense of running a neighborhood poker business out of his garage in Columbia County, Pennsylvania. The defense was that Texas Hold 'Em employed more skill than chance, and was consequently not "unlawful gambling" under state statute. The trial court agreed, but the state appealed and got a reversal. Which side was wrong?

    Answer: both of them. The supposed litmus test for gambling/not gambling (and thereby get arrested/not get arrested) is whether skill or chance "predominates". But as usual in American gaming law, there is no rational, neutral, reliable way to measure this. Or even to intelligently discuss what we are measuring. In the first place, what is chance?

    Chance is all about control- the lack of it, that is. Example: Craps is completely a game of chance because you have no control over what numbers come up on those dice. This is true whether you roll 'em one time, or ten thousand. By comparison, chess is a skill game because chance has nothing to do with the outcome. It's all strategy, experience, timing, good stuff like that.

    Well, few games are 100% one thing or the other. How do you tell if a game is more skill than chance. Professor Nelson Rose, America's senior authority on gambling law, has developed a checklist:

    1. Does the game allow skillful players to win more than unskillful ones?

    2. Do results of game play improve with practice and experience?

    3. Does the use of mathematics and probability mean more wins?

    4. Does the game require psychological skill- that is, do you need to ? read? other players?

    5. Do the actions of individual players affect the result?

    Now let's compare poker to that list . There is an element of chance in the shuffle and deal; no one can tell what cards he will be dealt. But after that, as the song says, you got to know when to hold 'em and when to fold'em. The game is won or lost on the actions of individual players, how they "read" each other's intentions; their timing and sense of patterns. And how are those acquired? By practice, by experience- and also by study. Which is the long way of saying skillful players win out over the unskillful.

    It should be plain , then, that skill is the heart of poker.

    But legally, that is only the beginning of the trouble. Because the legal formulas which pretend to govern these things are, to be kind, sloppy as hell. No one can effectively use them to analyze the relative content of chance. No, the legal language is not merely deliberately slippery. It is outright deceptive. It disguises conclusions as elements of analysis. Take a closer look and see what I mean.

    Does chance "Predominate" in a given transaction? Is there a "Substantial" element of chance (the other favorite phrase) ? Well, how can anyone tell? How do you quantify chance in the first place? Is there such a thing as a Chance-o-Meter, rigged out with a needle and dial display? Maybe an audio unit where it clicks and buzzes like a Geiger Counter when exposed to craps and roulette -and the needle goes all the way over into the red overload zone? But chess and bridge keep the noise down and the needle in the safer black?

    And supposing you could measure chance by regular units , what then? Where is the line between Substantial and non-Substantial ? 50% ? 60%? Does it require a 2/3 vote like the California legislature? No, terms like "substantial" and "authoritative", supported by nothing more, are merely hooks for the powers- that- be to hang their prejudices on. The reasoning is all circular: gambling is evil and therefore we do not like it. So it follows that any game we do not like must be evil gambling. There is no right to gamble; therefore gamblers have no rights.

    The rest of the opinion is just mopping up; having already formed the conclusion that poker MUST be a game of chance because that is how to condemn it, the appellate justices comb though the laws of eight other states to find support- of an equally shoot-first variety. (there is a very good summary available from the K&L Gates law firm's newsletter at http://www.klgates.com/newsstand/Detail.aspx?publication=5609)

    The ironic part is that the whole trip was unnecessary. No one had to make that absurd voyage through laws coast to coast, to shore up the argument that "it's illegal 'cause we say it is". All the learned justices had to do was remember that part of Pennsylvania law which says any game that's pay-to-play is illegal unless the state licenses it first. Gambling or not.

    But maybe that would have made too much sense in an election year.

    (Full Disclosure: I am co-author with Professor Rose of INTERNET GAMING LAW, the only legal reference on the subject)

    Mr. Owens is a California attorney specializing in the law of Internet and interactive gaming since 1998. Co-author of INTERNET GAMING LAW with Professor Nelson Rose,( Mary Ann Liebert Publishers , 2nd ed 2009) ; Associate Editor , Gaming Law Review & Economics; Contributing Editor, TSN. Com Comments and inquiries welcome at to mowens@trade-attorney.com.

    Copyright 2010


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