Federal Court in Brooklyn Rules Poker A Game of Skill — Not Illegal Under Federal Law

Published On August 21, 2012 | By Ken Dreifach | General, Internet Gambling & Fantasy Sports, Litigation

In a breathtakingly comprehensive, 120 page decision, U.S. District Court Judge Jack Weinstein (E.D.N.Y.) today ruled that for purposes of federal law (the federal Illegal Gambling Business Act, 18 U.S.C. 1955), poker is a game of skill, not of chance — thus not prohibited under IGBA.  In reaching its decision, the Court took into account — as no Court had heretofore done — expert testimony tracking thousands of hands of poker, voluminous legislative history, the role of organized crime in gambling, the nuances of statutory construction, and the rule of lenity.  ZwillGen submitted an amicus brief in the case, on behalf of the Poker Players Alliance.

In dismissing an indictment against a defendant alleged to have operated a poker club on Staten Island, the Court cited extensively to the expert testimony of Dr. Randal Heeb, an economist and poker aficionado, which demonstrated that over time, skill predominates over chance in determining the winners of a poker contest.  “In poker,” wrote the Court, “increased proficiency boosts a player’s chance of winning and affects the outcome of individual hands as well as a series of hands.  Expert poker players draw on an array of talents, including facility with numbers, knowledge of human psychology, and powers of observation and deception.”  And in deeming it relevant that Congress failed to list poker as a prohibited game in 18 U.S.C. 1955(a)(2), the Court wrote – in language sure to be quoted again:

“Poker is, for the purposes of this case, an elephant — or perhaps an eight hundred pound gorilla — that Congress would have been unlikely to ignore.  The fact that card games like poker, pinochle, gin rummy, and bridge were so widely played by law-abiding individuals in non-criminal settings may explain its omission from IGBA.  As Sherlock Holmes would describe the clue, it is the dog that didn’t bark.”

Other salient points to the decision:

  1. The finding that skill predominated over chance was not unique to the particular facts.  The defense expert, Dr. Heeb, demonstrated that “skill could be shown statistically to determine more than 50% of the outcome in poker in as few as 240 hands.”  The Court noted that players in poker tournaments “easily” reach the number of hands at which skill predominates over poker, as do many players in “a typical social game.”
  2. In fact (though the element of skill is best analyzed over time, not by a single hand), the defense expert went so far as to show “that experts can outplay amateurs when dealt the same starting hand.”
  3. The Court called into question decisions that have simply assumed that a violation of state gambling law constitutes an IGBA violation.  The Court reasoned:  “Most courts that have assumed that a business that violates any state criminal gambling laws is subject to IGBA liability have not squarely addressed the issue.”
  4. The Court also noted that federal law (the IGBA) and state law are not co-terminous – that a mere violation of state law does not necessarily implicate the IGBA.  Thus, whether poker might be illegal under, e.g., New York law, was not dispositive.
  5. Looking forward, the Court conceded that in addressing whether a particular game not enumerated by Congress in IGBA’s 18 U.S.C. §1955(a)(a) (as poker was not) ought nonetheless be deemed prohibited under IGBA may require complex “ad hoc analysis” – but that fairness and the “rule of lenity,” which favors criminal defendants when there is statutory ambiguity, require nothing less.

 

About The Author

Ken counsels clients on complex issues involving information privacy and data law, online liability, consumer regulatory and gaming law, including regulatory response, and adherence to self-regulatory guidelines for online advertising. Ken has had more than twenty years of experience in high-profile regulatory, in-house and private practice roles, including as Chief of the New York Attorney General’s Internet Bureau. He is one of the nation’s leading authorities on the relationship between emerging advertising technologies and online privacy.

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