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Gambling by Definition... Maybe!

by  George “The Engineer” Epstein

Wendeen Eolis’ fascinating feature, “Who Says Poker is Skill?” (March 12 issue) drew me to her primary reference source: The Fordham Intellectual Property, Media, and Entertainment Law Journal article by Bennett M. Liebman, entitled, “Poker Flops Under New York Law” (2006, Vol. 17, Issue 1, Article 1). Liebman thoroughly researched the skill vs. chance legal issues used in defining whether poker should be considered a form of gambling—and hence illegal. Courts have ruled based on varied opinions about the relative importance of skill vs. chance (luck), or whether money is involved. Most Significant: According to Liebman, the “…courts in New York State have always stated that poker is illegal without giving the matter significant analysis or thought. For a century, the New York Courts have stated that card games, such as poker, are games of chance.” Indeed, legal citation after citation, court rulings, etc., go back and forth on the issue—but, in the final analysis, they often agree that, “Poker should not be legal because it involves chance.”

 That’s ridiculous! How can a logical person, never mind the courts, declare an activity to be “gambling,” and therefore illegal, based on the presence of chance—the probability or possibility of something happening one way or another. Well, we do have some hope. The current New York penal law finally clarified the matter by defining gambling this way: A person engages in gambling when he stakes or risks something of value upon the outcome of a contest of chance or a future contingent event not under his control or influence, upon an agreement or understanding that he will receive something of value in the event of a certain outcome.

 —Ref. N.Y. Penal Law 225.00(2) (McKinney; 2006. Ref. Doc. 11/1/2006. 12:0609; 2006) Think of the consequences of using this criterion for gambling. How many activities do you engage in each day that could be labeled “gambling?” Did you drive your car this evening to get to the casino to enjoy your favorite game of poker and socialize with a few poker buddies? You staked your life by risking it when you drove your car out of the garage onto our streets. There was a chance—not under your control—that another car would speed down the street and smash into your car. A bad accident. . . Injury? Death? You would have missed your visit to the casino, which was something of value to you. You sure did gamble. Fortunately, you didn’t lose this time!

 But what about investing in the stock market? A new business venture? Ever invest in options on the stock market? It’s all very legal. And it’s risky too.

 How about insurance? Insurance is simply a method of shifting risk from one party to another. Insurers use actuarial methods to calculate appropriate premiums, which is similar to calculating card odds. The insurance premiums, like our pot odds, are set to obtain a long-term positive expected return—just as we decide which bets to make or raise. Who is gambling?

 The Bottom Line. Forget whether skill or luck is the key factor. Instead, just stick to the stated criteria. Based on this definition of “gambling,” so many things we do, so many daily occurrences—activities that are routine in our lives— are forms of gambling. All are very ethical and legal. How then can anyone—never mind a court of law with intelligent jurists—dare to tag poker with “illegal” status? Sounds like discrimination to me. Hmm…

 So what’s your opinion?

 George “The Engineer” Epstein is the author of The Greatest Book of Poker for Winners! and Hold’em or Fold’em? – An Algorithm for Making the Key Decision. He also teaches poker at the Claude Pepper Sr. Citizen Center. He was recently elected to the Seniors’ Poker Hall of Fame. Contact:

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