I intended to blog about the DiCristina decision since it was released on August 21st, but I haven’t made the time until now. With the usual great commentary about the case coming from all over the gaming spectrum, many of the more interesting points about the facts of the case itself and about what it means for poker have already been made. This post is really intended to be something of a summary of the commentary and reactions to date. If nothing else, hopefully Pokerati can act as a repository of documents and reflections on the case.

The Decision
Let’s start with the facts and the decision itself, a copy of which is here (all 120 pages of it). This summer, a jury convicted Lawrence DiCristina of operating (and of conspiracy to operate) an illegal gambling business contrary to the federal Illegal Gambling Business Act (IGBA). Those were the only federal charges against him. Mr. DiCristina ran a two-table, twice-weekly poker club in the back room of a Staten Island warehouse. The house at this business charged a 5 percent rake; the dealers were paid 25 percent of the rake collected. The defendant brought a motion for acquittal, arguing that the operation of the poker games didn’t violate the IGBA. The US District Judge in the case, Jack Weinstein, wrote his memorandum, order, and judgment in response to this motion. After an extensive discussion of the statute and its relationship to poker, Judge Weinstein vacated Mr. DiCristina’s conviction and dismissed the indictment.

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A federal judge in New York shook the gaming world in August 2012 by ruling that poker is predominantly a game of skill and therefore not “gambling” under the federal Illegal Gambling Business Act (“IGBA”).

The editorial headline from the Christian Science Monitor was typical:  “Misdeal on Internet poker gambling:  A federal court ruling that poker is mainly a game of skill and thus not gambling could steer Congress down the wrong path of approving Internet gaming.”

The opinion is significant.  The IGBA was the most important remaining federal statute that could be applied to Internet poker, now that the Department of Justice has limited the Wire Act to sports betting.  And any court that wants to declare that poker is predominantly chance will have to deal with Judge Jack B. Weinstein’s detailed 120-page-long opinion.

But the impact will be less than most commentators think.  The decision deals with only one specific statute, the IGBA, and expressly states that poker is still illegal gambling under other laws.  And the decision is so weak in so many places, that it will probably be overturned, if taken up on appeal.

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I have great news. Yesterday, a federal court — the United States District Court for the Eastern District of New York — ruled that poker is a game of skill and is not illegal gambling under the Illegal Gambling Businesses Act (IGBA)!

PPA played a central role in the case of U.S. v DiCristina. In coordination with the defendant’s lawyer, PPA provided the arguments and briefs and extensive expert testimony. Lawyers representing PPA wrote the principal briefs and presented the principal oral arguments. Judge Jack Weinstein’s opinion relied heavily upon the information the PPA provided the court.

This was the first federal court decision on whether poker is a game of skill rather than gambling. In his ruling, Judge Weinstein said, “Neither the text of the IGBA nor its legislative history demonstrate that Congress designed the statute to cover all state gambling offenses. Nor does the definition of ‘gambling’ include games, such as poker, which are predominated by skill.”

I hope you will take a moment to read this historic decision and PPA’s amicus brief supporting the argument that poker is a game of skill (click here for both). I also urge you to check out the Associated Press coverage (here), as it summarizes everything nicely and provides great information on PPA’s involvement in this case on behalf of the poker community.

This decision reinforces to all of us that now is the time for Congress to enact a fair and reasonable regulatory model that protects players and provides for a stable market for online poker in the U.S.
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Check out Wendeen Eolis’ story over at Poker Player Newspaper, the Manhattan-based poker journo who apparently isn’t gonna let the young whippersnappers at Subject:Poker and QuadJacks bastardize the reality of what’s going on in her courtside stomping grounds as this DOJ vs. old-school online poker story unfolds.

Just last week Wendeen laid out why the supposed “Tapie Deal” isn’t taking shape the way many purport (didn’t someone say FTP-Europe would be up and running by now?) … and she follows that up with a little shameless expose on PokerStars and the cloak of secrecy covering many of their operations — modus operandi she contends became the norm for a company that couldn’t at once be biggest in the world while still trying to fly beneath various legal radars.

From PPN:

Reports from current and former employees, consultants, business partners, Team Pro players, and media brought many verified vignettes that highlight the secretiveness of the company. The various accounts share a common theme; they all indicate a core value of camouflage that permeates so many of the company’s significant initiatives.

Yeesh, happy Valentine’s Day to someone!

Also extra-fascinating is a part of her story suggesting that PokerStars’ efforts to get poker declared a game of skill could be what does them in, financially, because of European tax laws.

You may or may not have seen the report Barclay’s put out assessing the impact of American DOJ actions vs. Online Poker on the European online gambling sector. Now Moody’s, the venerable global credit rater, has put out their own assessment of how the shutdown of Full Tilt and PokerStars in the US affects high finance and various state economies.

At least I think that’s what they’re saying … but a few things that stood out to me had more to do with what this report reveals about the perception of poker, both as a game and a needle-moving industry, including:

• “Online gambling is no real threat to U.S. land-based casinos.”

So it’s official now. The rest of the world gets what poker people knew in 2006.

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Don’t Check-Raise Me: A South Carolina law permitting more-good real-money friendly poker appears be on the horizon.

Small-but-big victory for poker players in South Carolina yesterday … with the state’s senate judiciary committee voting 15-6 to debate a bill on the floor that would emphatically legalize poker home games.

The need to revise SC gambling laws came to the fore when players busted in a raid on a private residence in 2006 decided to fight their tickets on the basis that poker was a game of skill, and therefore not in violation of the an 1802 law that may or may not have made playing Texas Hold’em — and Monopoly or Parcheesi for that matter — ticketable misdemeanors. The Poker Players Alliance, in one of their first non-UIGEA undertakings, provided legal assistance in that case, which is currently pending in South Carolina’s supreme court … lower courts having already acknowledged that poker is indeed more a game of skill than chance.

The PPA has since led grassroots efforts in SC to get the current bipartisan bill to the Senate floor, and seems to have engaged the Spartanburg Tea Party’s support. To be honest, I wasn’t sure at first if their “action alert” was a call to push for passage or the opposite. However, the relative ease with which the bill moved through committee suggests Tea Partiers are finally coming around to see that most poker legislation lines up with their stated beliefs.

In addition to permitting home games (owhile forbidding taking a rake from such endeavors), S. 254 provides card players grounds for suing someone welching on a bet, and explicitly spells out the illegality of video poker. Not sure if any of those lines could be (mis?)construed to penalize anyone playing online poker in South Carolina or even just printing out hand histories … not to mention using a poker genie in your neighborhood sit-n-go. But still arguably better than the 209-year-old gambling law it looks to replace.

Read the full bill here, and below for the specific section relevant to poker played in private residences for no rake:

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The PPA speaks out on the South Carolina Supreme Court’s game-of-skill hearing, where they helped provide legal counsel for the five players contesting their misdemeanor illegal gambling convictions.

This case has nothing to do with casinos or video poker.  This case is about the freedom of adults to play a game of skill, like poker, in their own home and that is it.

– John Pappas, Poker Players Alliance

Fair enough. But it does stand to set precedent and interpretation that other states will at least look at upon (finally) recognizing their own old gambling laws may not really work in today’s day and age.

Sure, we all know that poker is a game of skill and therefore Truth is on poker’s side here, but that may not be the deciding factor when all is said and done. Likewise, the private residence argument could ring a bit hollow because we all know the difference between a self-dealt home game and a for-profit poker room.

But regardless, clarity in and of itself could be a worthy end-result, no? Is it legal to host a weekly sit-n-go and take a “rake” for pizza and beer? What about to pay for nice tables and utilities? Professional dealer maybe? Would it make a difference if you operated as a non-profit? And If an undercover cop wins the bad-beat jackpot, do they have make-up in their backing deal with taxpayers?

Obviously, the South Carolina Supreme Court won’t be making such scenario-specific determinations. However … assuming they don’t just kick it back like Kentucky and Washington did (saying essentially, “eh, not our call”) … this court is being asked to decide, ultimately, just how far the government’s reach extends when dealing with a game of skill played for money … and that’s a question powerful people are wrangling with in different jurisdictions all around the world.

If you haven’t already, help Pokerati determine where poker falls on the spectrum of luck vs. skill here, and read below for the PPA’s official take on today’s important poker activity in South Carolina:

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Poker is back in the state-level Supreme Courts … this time in South Carolina, with five appointed justices set to decide if playing Texas Hold’em in a private residence is a crime.

The decision, which will likely reverberate throughout the Carolina underground and beyond, will rely heavily on matters of skill and chance involved in poker, as gamecock law calls for a “dominate factor test” to determine whether or not a game violates South Carolina gambling statutes. Like we saw in Kentucky and Washington, the SC SC will just be hearing arguments tomorrow, for about 30 minutes from both sides combined, and not issuing a ruling for a few months. But when they do … well read below for what’s at stake beyond a few misdemeanor convictions.

In the meantime … we know there’s skill in poker, but how much is often debatable. Where on the continuum do you draw the lines for these different “games”?

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I swear I’m taking a vacation. But it may take me a while to get off the blogging sauce. Meanwhile, Full Tilt is addressing customers in Washington State — saying for now, carry on, but they’ll let you know if they change their mind in the future.

What’s interesting is that you can see Tilt, via message from Support, leaning on the game-of-skill defense (possibly their best option at this point) … and at the same time, if they do pull out, we may strangely see the benefit of Washington’s ignobly conceived law: showing other states how the “opt-out” model of regulation (the PPA proposes) could work.

As Stephen A. Murphy over at CardPlayer suggests, this news perhaps comes as a bit of a head-scratcher. But then again, poker players have come to expect high variance when it comes to state courts’ attempts to decide the issue of whether poker is a game of skill or chance.

Reversing a ruling from early last year, a Pennsylvania appeals court this week ruled that poker was more chance-based than skill-based, thus making it a form of “unlawful gambling” according to the state’s predominance test. The court voted 2-1, with Judge Robert Freedberg authoring the opinion. “While the outcome of poker may be dependent on skill to some degree,” wrote Freedburg, “it is predominantly a game of chance.”

The ruling thus goes against the January 2009 decision in the case concerning a private home game of $1/$2 no-limit hold’em. In that one, Judge Thomas James explained that “in conjunction with analyzing skill versus chance… it is apparent that skill predominates over chance in Texas Hold’em poker.”

The Poker Players Alliance chimed in to express “disappointment” in the ruling. The defendants’ lawyer has suggested the case will likely be headed to the state’s Supreme Court.

Read more about the Judge Freedberg’s decision over at CardPlayer.com.

Interesting story in the Miami Herald about Joe Cada, Kevin Schaffel (Florida’s representative in the November Nine), skill vs. luck, and whether or not the game is good for you. My favorite line(s):

“We had 115 different countries have players represented this year,” said Seth Palansky, a World Series spokesman. “It’s just an astonishing amount — more than the Olympics.”

To be fair, that’s only more than the Winter Olympics. Poker still has a bit more work to catch the Summer games.

Ha ha. Burn on Palansky.

The story continues:

Not everyone is happy with the poker boom. Gambling critics like the Florida Family Policy Council say the game’s greater social acceptance is largely a result of aggressive PR efforts.

“It’s being promoted as something that’s sexy and adventurous and cool,” said council President John Stemberger. “All the big money is on the side of promoting it, not on the side of educating people as to why it’s not a smart thing.”

True enough, Mr. Stemberger, but the same thing could be said about religion, right? You think our activity can be harmful — and indeed it can — and I think your activity can be harmful … and indeed it can. But that’s where living in the wonderful US of A comes into play … As an American (and Floridians are Americans, even the ones who are Cuban) I have the personal freedom to pursue my happiness, just as you do … even though I can show you example after example of people pursuing the activities Big God money is pushing doing tremendous harm … usually with a lot more blood and death, in fact.

Trust me, when it comes to potentially addictive products, poker is much closer to Starbuck’s than Marlboro … even though financial advisors have shown time and time again how quitting a $5 a day Starbuck’s habit can equal millions of extra retirement dollars in the course of life.

Meanwhile, here’s another Herald story about Florida’s longtime wagering culture as the state considers it’s biggest expansion of gambling in history.

Just a technical update, I believe … but courts in South Carolina have officially and full-on thrown out gambling charges against five South Carolinians caught up in a poker raid (that nabbed 20), after having their convictions reversed at least in part on the grounds that poker is a game of skill.

“It is important to note that while we have successfully argued that poker – specifically Texas Hold’em – is a game that is predominantly skill, this does not open the door to any other game found in a casino, since we would agree that every other game found in a casino are unquestionably a game of chance,“ [Greenville Attorney Jeff] Phillips said.

“Although this opinion is a Circuit Court opinion, and thus has no binding authority over other courts in the state, this is a huge victory for the tens of thousands of South Carolina citizens who enjoy the great game of poker. It is our hope that other judges in other counties will see the tremendous logic of this opinion and find it to be persuasive in the cases that come before their courts. Should the Attorney General decide to appeal this decision, the Court of Appeals or Supreme Court will then have the opportunity to make this opinion the law of our state.”

The South Carolina legislature will likely consider a bill proposed by Senator Glenn McConnell that would make some sense of gambling activities throughout the state.

More on that bill here and here.

Five South Carolina poker players convicted of gambling in February — after a raid on a private home in 2006 — had their convictions overturned on appeal yesterday.

From the Post and Courier:

In a letter that supports the argument that Texas Hold ‘Em is a game of skill, not one of chance, Circuit Judge R. Markley Dennis said this week it is his opinion the state Supreme Court would likely adopt “the dominate factor test” in deciding the case.

Under the dominate factor test, Texas Hold ‘Em is not gaming or gambling, the judge wrote, which would make it illegal under state law.

He also said the law covering the play “is ambiguous and must be construed in favor of appellants.”

The South Carolina law the judge is referring to was written in 1802.

Both sides expect the state to appeal the appeal to the SC Supreme Court.

Missed this article two weeks ago … but it’s a good one, as they always seem to be when the non-poker media takes a more-than-cursory look at poker “issues”.

From the LA Times:

Taking their chances on poker’s legality
Is Texas Hold ‘Em about the luck of the draw, or the skill of the player? The question is being played out in courts around the country.

Lawrence Burns, 65, was found guilty of gambling yesterday, despite arguments the real-money tournaments he organized were not gambling because poker is a game of skill. After 2 1/2 days of testimony, the Westmoreland jury took less than 2 1/2 hours to return a verdict.

http://www.post-gazette.com/pg/09225/990677-100.stm

Though a judge will determine Burns’ sentence, the prosecutor has said he does not believe the offense merits jail time. Burns plans to appeal the court’s ruling.

Regardless of these semi-bummer results, we should probably all take note: while it’s not too hard to convince non-poker people that poker is different from slot machines, lotteries, craps, etc. — and we might even convince them that Texas Hold’em tournaments are as skillful endeavors as fishing tournaments (where the pros generally win, but an amateur can always get lucky) — we’re always gonna have a really hard time persuading them to believe that poker isn’t gambling, game of skill or not. Sucks, but oh well … now we don’t need to hide all the players that like to say things like “gamble gamble!” when all-in on a draw.

(Thanks Marvin-in-Bedford for the heads-up.)