Taking the style from Mike Caro, I am writing this editorial today to discuss an important issue for the poker industry:
Is poker a game of skill or a game of chance?
Before I write any further, I think it is important for you to know my credentials. Although I read and approve nearly everything in this paper, I only write on important occasions or issues but rarely write about myself. Last summer I reached a milestone in life, my 75th birthday. I was going to write then about my career, but we were too busy successfully launching our new subsidiary, Poker Player Cruises.
I am giving you these facts not to promote myself, but to point out that what I am writing here should be considered “expert opinion,” as compared to the undeniable principle that everyone is entitled to his own opinion. I entered the gaming publishing business more than 40 years ago, after successful careers in architecture, city planning, and real estate… I had all the appropriate licenses. Since then I have published more than 50 gaming books, 150 issues of Gambling Times magazine, and 800 issues of this newspaper—along with other newspapers, newsletters, and radio shows. I have been a guest on over 300 radio and television shows in the last 40 years. Since I was the first publisher in these endeavors it might be fair to say that I am the “father” of the modern day consumer gambling publishing business. I have also been hired by other publishers to edit their gambling books, and by the World Book Encyclopedia to write their gambling definitions. Six years ago I was asked by Dania Jai Alai and Calder racetrack to testify in Florida. At that time the Division of Gaming Enforcement and the court certified that I was an “expert” witness. We won the case.
When issues go to court it is not the role of a judge to substitute his opinion for that of an expert. Judges are not supposed to know everything. They are supposed to rule on the legal basis of a case, basing their ruling on the expert testimony they have heard, and, in some cases, to weigh the difference in opinion between two experts. Mainly their rulings come down on the side of precedent, i.e., what has the law been. The problem is that on the matter of skill vs. chance, precedent has been incorrect.
Here is why. There is no activity in life, specifically in relation to games or sports, which does not have an element of chance involved. Any game with a ball involved can take an unexpected bounce and change the outcome, yet all sports are considered games of skill. So the rule should be that if a game possesses any element of skill that can change the outcome, it is a game of skill. No judgment based on the percentage of skill should hold water. It doesn’t matter what the percentage was if the outcome was changed. The skill factor in games is tied to the ability to collect, process, and use available information, be that about the parameters of the game or the actions of one’s opponents.
Certain games, usually played in a casino, require no skill whatsoever. This includes craps, roulette, slot machines, wheel of fortune, etc. All these games are played against the house and there is no information available. There is information available in Baccarat but it is so rarely usable that it does not present itself as useful. Blackjack is a game of skill that exists because 98 percent of the players do not have the skills and some of the other 2 percent get barred from playing. Poker is a game of relative skill. It is an adversarial game played against other players. Most people think poker is a card game. This is not exactly correct. Poker is a people game played with cards. Understanding this difference is what separates the great players from the rest. What’s this got to do with the current indictments, which are described in other articles in this issue? Well, the major Internet poker rooms have been using the principal argument that the UIGEA does not include poker because it is a game of skill. Therefore, they profess, UIGEA does not apply to them. That is their rationale for continuing in business.
The DOJ and other government agencies have been misrepresenting the UIGEA as making internet poker illegal, which is not the case. The UIGEA only makes using a bank to transfer money to and from an Internet gambling site illegal. It is not illegal to play on the Internet or to run an Internet gambling site, except for sports betting, which is covered under another law. In order to get out from under prosecution for running these sites the poker sites hoped to win the “skill” argument. Whether they would or not depends on the judgment of the jurist and the “expert” testimony.
However, now we have allegations of even more serious charges of bank fraud and money laundering. I will not comment on these, as I am not qualified as an expert in those matters. However, if they are true, this is more than likely the beginning of the end for those parties and many others. Although the history of DOJ actions shows they are mainly interested in getting the big boys and not bothering with small fry, the DOJ also hopes their actions will have a chilling effect upon the others they perceive as lawbreakers. Should the DOJ win their case and then find that their interpretation of the law is still being defied, that the players have just gone to another web site, I wouldn’t want to own a piece of an internet site. And, if I did, I would never come back to the USA.
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