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The predominance of skill in Poker-An International perspective



While there are battles in America and Europe to get poker recognised as a game of skill, no such initiative has been taken in India, despite poker, especially the Texas hold ’em variant being an extremely popular card-game among the youth and illegal card rooms being present in most Indian cities. There have been no unified efforts to convince Indian judiciary and lawmakers to declassify poker from the ambit of gambling and while I have been taking efforts through various articles and RTI applications, a collective platform where all poker lovers can join the effort to usher in the much needed change is essential.

In the previous post, I had raised the question as to the possibility of excluding poker from the ambit of the penal gambling provisions. In this post, I will now put up an article titled “Proving poker is a Game of Skill” written by the American gaming law expert, Professor I. Nelson Rose on how the courts can be convinced of the predominance of skill in poker. Again while Professor Rose provides an American perspective on proving poker as a game of skill, many of his points may be applicable in the Indian context as well.

Proving poker to be a game of skill

Proving Poker is a Game of Skill

How can we make poker legal?

The cleanest way is to get a statute passed through the state legislature.

In my book, Gambling And The Law, I show how California became the draw poker capital of the world because the state enacted laws in the 19th century that outlawed specific games, like 21 and faro, but left draw poker off the list.

Of course, there still can be problems. When Florida lawmakers authorized commercial cardrooms, they initially put a ridiculous limit of $10 on the size of pots. And questions arose over what games qualify. I testified as an expert witness that one innovation, essentially a game where players get two cards and try to get closer to 21 without going over, was not poker.

Politically it has proven nearly impossible to get a poker bill through both houses of a state legislature and be signed by the governor. At the very least, the pro-poker faction would have to spend enormous amounts of time and money lobbying local lawmakers.

An easier route is litigation. If the highest court of a state declares that playing poker for money is legal, then it is. Even the U.S. Supreme Court can’t overrule that decision, although the state legislature could put on restrictions.

There are presently a couple of cases working their way through court systems in the United States, and a few more than that in Europe. These aren’t necessarily the perfect test cases, because lawyers often have to take the case their client has, rather than the one they would wish for.

But the stakes are so great that somebody is going to put together the right case. Here’s what they should do:

1) Put together a team of lawyers and experts in advance, so that a test case will have the right combination of laws and facts.

2) Choose a state with the right laws. The goal is to have a trial showing that poker is a game of skill and therefore legal. The statute should clearly state that gambling is limited to games that are predominantly chance. And there should be prior published case decisions that can be used. The California Supreme Court, for example, declared that the card game of bridge is predominantly skill. So it would only be necessary to prove that poker has as much skill as bridge.

3) Use poker tournaments as the test case. Courts that have ruled that poker is predominantly chance have focused on the possibility that an amateur could be dealt a hand better than a professional. So eliminate the possibility of winning on a single hand.

4) File an action for a declaratory judgment – do not get arrested. The best you can get once a case is in criminal court is a “not guilty.”

5) Get expert poker players to testify that most hands are not called, to show that it is not just who is dealt the best hand.

6) Have experts run tests that have worked in other cases. For example, games of skill always have a learning curve, and professionals beat amateurs in the long run.

7) Be creative and prepared. Courts have looked at how many books have been written on bridge (concluding it’s a game of skill), and others have emphasized that the general public thinks lotteries are predominantly chance. So lists should be made showing there are now more books for poker players than for bridge players. And public opinion polls should be taken that prove the general public feels poker is a game of skill.

Jay has researched extensively on gaming laws and has been cited by various media houses and journals as an expert. He has helped leading newspapers in their stories on gaming laws. Jay completed his B.A. LL.B. (Hons.) degree from NUJS, Kolkata in 2015 and is currently based out of Mumbai.