Saturday, November 28, 2015
Does it matter that a judge thinks there's skill in poker?
A federal judge ruled yesterday that poker is more a game of skill than a game of chance. That ruling led to the dismissal of federal charges against Lawrence DiCristina for violating the Illegal Gambling Business Act (IGBA). DiCristina had been running a raked poker game and kept profits the game generated after paying waitresses and dealers.
22 August 2012
By Vin Narayanan
"The fundamental question is not whether some chance or skill is involved in poker, but what element predominates," wrote Judge Jack Weinstein. "To predominate, skill must account for a greater percentage of the outcome than chance -- i.e. more than 50 percent.
"Because the poker played on the defendant's premises is not predominately a game of chance, it is not gambling as defined by IGBA.
"(The) federal court ruling is a major victory for the game of poker and the millions of Americans who enjoy playing it," said John Pappas, executive director of the Poker Players Alliance (PPA). "Judge Weinstein's thoughtful decision recognizes what we have consistently argued for years: poker is not a crime, it is a game of skill. As the judge's opinion aptly notes, poker is an American pastime that is deeply embedded in the history and fabric of our nation and his decision sets aside the notion that the vague laws render the game criminal."
While the ruling is certainly a big win for DiCristina, what it means for poker is less clear.
Here's a look at the ruling, and my answers to some key questions.
So this is it, right? A judge said poker is a skill game. That means we're going get online poker back.
Not so fast. A judge said poker was more skill than chance, and that it didn't meet IGBA's definition of gambling. He didn't say poker wasn't gambling. Weinstein made it very clear in his ruling that DiCristina's game was clearly illegal under New York state law, where a "material" element of chance, instead of IGBA's preponderance test, makes running a raked game an illegal gambling act. He also noted it would be illegal in other states as well. For online poker to happen, it can't violate state or federal laws.
So at least the federal part is clear now. Poker is definitely a game of skill as far as the government is concerned.
That remains to be seen. This judge certainly thinks that skill outweighs chance. But the reason that matters is because the judge believed IGBA was really unclear/non-specific when it came to a game like poker. And in the law, there's a thing called the rule of lenity. It's basically like a tie going to the runner in baseball. In court, when a law is ambiguous, it should be interpreted/applied in favor of the defendant.
In this case, the judge found it hard to tell what construed illegal gambling under the IGBA. So he accepted and applied an explanation that favored DiCristina.
Wait a minute, I thought the whole point of IGBA is you have to violate a state law in order to trigger federal prosecution and punishment. So if DiCristina violated state law like the judge said, why is the federal charge being dismissed?
That's a really good question. Weinstein notes in his rulings that many, if not most courts, rely on this interpretation of IGBA. Weinstein chose not to. Weinstein also ruled that in addition to a criminal act meeting the state's definition of gambling, it also had to meet IGBA's definition. Weinstein says poker does not meet IGBA's definition of illegal gambling.
This ruling has turned conventional wisdom regarding IGBA on its head. It presumes poker violates New York state law -- which many attorneys would argue is not the case -- and it adds an additional test of making sure the activity falls within IGBA's parameters for gambling. Because it is at odds with other rulings, it's hard to say just how important this is.
The good news is a judge found skill trumped chance in poker. The bad news is this is only one judge saying this, and his interpretation of IGBA may not hold up in the long run. We'll have to wait and see if this ruling is appealed and watch how other courts rule on this.
Was there anything else that impacted the judge's decision?
Yes. Another big element in the case was the purpose of IGBA, which was essentially to go after organized crime. So it was plausible that the only forms of gambling that Congress was trying to outlaw were the ones organized crime was heavily into, which is why pool selling, bookmaking, maintaining slot machines, roulette, dice games, lotteries and numbers games were included in the text of the IGBA. It was also plausible that the law meant to accept any violation of state gambling law. But because the tie goes to the defendant, the judge took a narrower view.
Also, it looks like the prosecution did a lousy job with its expert witness. The government's "expert" didn't play poker, didn't know much about poker and had not studied the expert testimony provided by the defense that poker was a game of skill. The judge was not impressed.
OK. My head hurts now. Thanks a lot. What does this all mean?
It's too soon to tell. It's good that a federal judge ruled that the predominant element of poker is skill. This is something that politicians can point to when writing laws that ensure poker players can pursue their pastime or profession. But whether this has a lasting impact is largely dependent on other people and other events. Will this ruling be appealed? Will other courts agree with this ruling? Are there other laws that can be used instead of IGBA to go after poker?
Combine that with the fact the judge believes DiCristina's game was clearly illegal under New York state law and it becomes clear poker players didn't hit the jackpot this week. But it was progress. And that's a good thing.
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