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Borgata WPO Tournament Decision Ignites Much Debate

Wendeen H. Eolisby Wendeen H. Eolis

During the past week, since  the New Jersey Division of Gaming Enforcement issued its final order concerning the first event at the Borgata Winter Poker Open (“WPO”) last January, players have been arguing fiercely about the fairness  or unfairness of the rulings. Chatter has turned into full on posturing. Tournament participants are  communicating with friends, Borgata representatives, the DGE, poker tournament directors around the country, media and---lawyers.  Movers and shakers far across the poker planet are also popping up with takes on the decision.

A Quick Review of the Borgata Counterfeit Chip Caper:
The opening event of the WPO was suspended and ultimately terminated by the DGE before the third day was to commence, after determining that counterfeit chips had been introduced into the tournament. The DGE order provides for the disbursement of the undistributed remaining prize pool (which was frozen during the DGE investigation), together with the revenues earned by Borgata in buy-in fees. The DGE determined that Borgata was a victim of criminal conduct, not negligent and not liable for any other payments, in this matter.

DGE Order and Borgata Statement
One fuzzy issue in the order relates to the distribution of revenues earned by Borgata ($288,000+).  They are referenced in a “whereas clause” as monies provided to players “in consultation” with the Borgata.  The Borgata statement references the inclusion of the buy-in fees in player distributions as a voluntary contribution on the part of the Company.

The order can be seen here: http://www.nj.gov/oag/ge/2014news/BorgataWinterPokerOpenFinalOrder.pdf
The Borgata’s statement which clarifies details of the allocation of monies can also be seen here:
http://blog.theborgata.com/
 
Borgata Stands Its Ground
Sitting in the Borgata’s Sun Room Lounge at the Water Club, last Thursday, Joe Lupo, Borgata senior vice president for operations reiterated  to this reporter, the Company’s  steadfast top priorities; integrity in its gaming fare and unexcelled customer service.  

Lupo is the quintessential company man. He is also the man behind the management decisions that have resulted, over the years, in Borgata making an enviable name for itself in the poker world. It fell to Lupo to brief top Borgata and Boyd executives on the fake chip debacle and to oversee discussions and implementation of new layers of security for poker tournaments. Lupo has neither flinched nor hidden from sight since the counterfeit chip “imbroglio. He acknowledged, however that he was looking forward to a short restful vacation with his wife this week.

Disgruntled Players Look to Lawyers for Relief
Late Easter Sunday, while Lupo was presumably settled in a lounge chair, Bruce LiCausi was riding up the Garden State Parkway in Northern New Jersey, sharing the substance of a planned press release as part of an exclusive interview. LiCausi, is counsel for the plaintiffs in Mustarel v.Marina District Finance Company, Inc. et al. (Borgata), "a proposed class action lawsuit filed in Atlantic County on behalf of tournament participants.”  His opening salvo in the conversation made his position crystal clear: “The DGE’s Final Order of April 14, 2014 is not the final word for our clients.”  

LiCausi is passionate about his cause; He says he wants to obtain justice for tournament players that were robbed of the purported opportunity that induced them to buy into Event 1 of the WPO —some of them multiple times.  LiCausi argues, “If the State of New Jersey is going to permit poker participants to be cheated out of games prematurely, so long as some nominal prize money is won, we may as well go back to the days when Atlantic City gambling was controlled by organized crime.”

LiCausi,’s voice starts out calm and cool in our conversation, but it becomes fiery when challenged on the legal basis for his proposed class action lawsuit. On occasion he has faced down lawyers in big law firms, and he has shown the grit to take on unpopular cases in the name of justice for all.  He counts his share of creditable winners against tough odds.   

This matter is as high profile as any that he has ever handled, but he makes clear it is part of a busy canvas.  A  solo practitioner, LiCausi brings 30 + years of legal experience to the table. He looks upon the DGE decision as a well--thought out effort to mitigate damages and limit liability both for DGE and Borgata.  He allows his outrage on behalf of players in the canceled Borgata tournament to become full blown. He claims, “There is little reason to trust the DGE’s and/or Borgata’s comprehensive analysis of the rigged tournament, given the obvious goal of limiting their liability,” And he notes, “The conflicts of interest here are obvious. The Borgata is seeking to absolve itself of liability at the same time it is proposing a method of compensation for players – goals that are inherently in conflict.”  He is aghast at the DGE, “for working closely with a casino it is supposed to be strictly regulating, to dispose of a matter that is deeply embarrassing to both of them.  

Poker Community is Divided on the Merits of DGE Decision
The DGE order has prompted a wide range of opinions within the poker community; both heated and low keyed discussions that sometimes even stir debate over the choice of words this reporter has used in describing the decision. Such was the case after PPN published a headline that called the decision "stunning." Kevin Mathers, a prolific twitterer and poker forum moderator who places himself among the  relegated  who apparently was unable to get any concrete information to post about the coming decision ahead of others referred to information about the decision ,  

As a tournament player, I appreciate the blood, sweat and valuable time involved in reaching the final three tables of a tournament that featured 4810 buy-in entries. So, like many of the players consulted for this article, when I learned about the decision, I was stunned by the equal payouts to all of the players in the top 27 spots.

From live poker rooms to cyberspace –based poker forums, the outcome of the DGE investigation has been supported by some and challenged by others and advocated accordingly. The backgrounds of the commentators are diverse. They include pros and enthusiasts, tournament directors, card-room personnel and poker forum participants. At the popular twoplustwo.com website, there are hundreds of pages of posts concerning the Borgata chip investigation. Various members of the forum have taken part, respectfully, on both sides of the decision debate, showing substantial thought behind their posts.    

Post # 4338 in a thread on the Borgata Chip Investigation
One of the most detailed posts in support of the DGE decision is noteworthy for its fearlessness toward others who seem to have too much time on their hands and use forums to snipe, petulantly, at people and events that annoy them.  Fromaggio opined at unusual length;  pertinent parts of his post are offered below in contrast to the position held by Attorney LiCausi:

“OK, here are my comments on the ruling: It seems to be reasonably fair, and well thought out - largely along the lines of what I anticipated. I did expect that there would be a slowly increasing payout according to stack size for the final 27, but instead they chose to pay everyone the same. I can't really argue against that, however, since (a) the larger issue was dealt with: ensuring that all the affected players who busted out receive refunds, and (b) the nominal final 27 are making out pretty well compared to other players who are just as deserving.”

He continued, “Now, I understand why some in the final 27 would be unhappy, but it's all based on an illusion…  He followed up, suggesting, “One could make the argument that many of the lucky final 27 were unfairly advantaged in this settlement,” saying “I think that would be correct. All in all, it seems like a reasonable balance.”

Fromaggio apologized to those who might be angry with his post, and chastised “unaffected players,” who might be part of “a world where loudness and entitlement seem to win more often than not.”  He called it “refreshing to see logic and fairness prevail for once and praised DGE and Borgata, “for not caving to the hordes of opportunistic profiteers.”

Gaming Law Experts Weigh In
Several gaming law experts interviewed for this piece have echoed similar sentiments to those expressed by Fromaggio. One lawyer conversant with some of the DGE’s deliberations has gone further, saying, “The extensive research behind the order will give lawyers eager to punch holes in the decision more than a bit of agita and it will give disgruntled players less of a chance to succeed than they may be led to believe.

Research concerning the ultimate tournament result histories statistics for players reaching 27th place was recently brought to the attention of this writer; if further validated, it could be a compelling foundation for the DGE decision that was rendered. For those who may not view the decision as stunning in its fairness, now, they may think again, if it reflects compatible research when the rubber meets the road.
How much defendants or plaintiffs will spring for an expert to conduct in-depth relevant research data and present his/her conclusions in court is anyone’s guess, but the gaming law pundits queried, express doubt as to Borgata’s openness to settle claims arising from the cancellation of the tournament, given the decision in hand—including the research reportedly completed, already.

Borgata and Its Poker Players Move On
The Borgata, meanwhile, has established a hotline to respond to player queries as to how the DGE decision affects his/her rights (if any) with respect to payouts being made under the regulator’s final order which was disclosed publicly, last Monday.

Some 2100+ of the 2800+ players (for the 4800+ buy-ins) were eligible to obtain refunds of their buy-ins and those refunds have been sent out, according to a Borgata representative. Those deemed “unaffected” have received no refunds.  Those who cashed from 450 down through 28th place have also been sent their allocated prize monies; they earned their awards prior to a determination of a compromised tournament.  

Borgata  is reportedly making overtures to sweeten the pot for  a few of the top chip leaders, but it is likely that confidentiality requirements will keep actual  deals, if any, under wraps--at least for a while. For players in the WPO Event 1 who remain aggrieved, it is yet to be seen if there will be any substantive fights or merely “words full of sound and fury signifying nothing." Counsel for the plaintiffs in the proposed class action lawsuit now moves into the next phase of litigation.

Editor’s Note: Wendeen Eolis is CEO of EOLIS, a legal consultancy with a specialty in the gaming space. She has served as an advisor to Mayor Rudy Giuliani and as 1st Asst. to Governor George Pataki with responsibility for gaming issues in her portfolio. She was the first woman to cash in the main event at the World Series of Poker. See her wikipedia listing, and eolis.com press clip index for more information. This article is her exclusive property. She can be reached at:eolis@eolis.comTwitter Facebook and LinkedIn or at the website: www.eolis.com.

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Wendeen H. Eolis

World Series of Poker


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