A VC reader has forwarded to me this very interesting amicus brief filed by the Poker Players Alliance in a Kentucky case. The brief is filed "in support of every person's right to legally play poker, both on the internet and in person."
The crux of the argument is that the wagers in poker involve a great deal of skill:
While the initial distribution of cards and replacement cards are random, the decision on which cards to discard, the methods and steps in wagering, whether to wager or fold, the analysis of playing habits of other players, and the management of a player's chips from hand to hard are all player-based decisions greatly influenced by the skill levels of the player.
The brief goes on to discuss Kentucky law, under which "gambling" activities are proscribed. Kentucky Rev. Stat. Ann. section 528.010(1) defines "gambling" as:
staking or risking something of value upon the outcome of a contest, game, gaming scheme, or gaming device which is based upon an element of chance, in accord with an agreement or understanding that someone will receive something of value in the event of a certain outcome. A contest or game in which eligibility to participate is determined by chance and the ultimate winner is determined by skill shall not be considered to be gambling.
The amicus brief contends that poker does not fit the definition of gambling because "the outcome is based primarily on the skilled play of the players." The brief explains that most poker hands "are decided by all players folding to the winner. In that case the actual distribution of the cards (the element of chance) has no bearing on deciding who won. Instead it was the players' analysis as to the relative value of their cards and their opponetns cards that determined the outcome, which is based on the myriad of skill elements" such as assessing risk, players' strategies, etc.
The brief goes on to explain that Kentucky law as followed a "predominance" test to determine whether a game is one of skill or chance with regard to the gambling proscription. The Kentucky Attorney General has determined that table soccer, for example, is a game of skill — citing the presence of organized tournaments, regulations, and classifications of players. The brief goes on to offer various reasons for believing that skill predominates over luck in poker.
The whole brief is an interesting read. If the test under Kentucky law is truly a predominance test, I think the brief makes a compelling case that poker is not gambling. For example, it cites a study comparing an unskilled player making wagering decisions randomly against a skilled player in a two-player limit game of Texas Hold 'Em. The skilled player apparently wins 97% of the hand and an average of more than one-and-a-half "big" bets. Anthony Cabot and Robert Hannum, Toward Legalization of Poker: A Game of Skill, presented at the Drake Gaming Law Symposium, Sept. 12, 2008.
Related Posts (on one page):
- More on Is Poker a Game of "Chance"?
- Board Games,Textualism, and the South Carolina Anti-Gambling Statute:
- Is Texas Hold 'em a Illegal Game of Chance or Permissible Game of Skill?
That would include farming, investing in the stock market, &c.
The brief seems to argue that, if you have sophisticated models for understanding risk, you aren't actually dealing with risk anymore. That is not true.
Sure, one can argue that skill is involved. But I'll bet there are plenty of people playing this game just like me, who have little or no skill, and are just playing the hand given to them. A game of skill for one set of players, a thing of chance for another set. Clearly, most inexperienced and children playing this game would be violating the law.
So does the legality of the this game turn on the skill level of the players?
There is an element of skill involved in achieving success and an element of chance involved in achieving success. Therefore, it is gambling under the statute.
Coin flipping = 100% chance
Chess = 100% skill
P0ker is somewhere in between.
At this point, I don't even understand the need to pass this through the courts. This is what the legislature was built for. (In this time of need, think of the tax revenue....)
Yeah, and how many times do you think someone with 4 aces has folded to the winner?
But this is an age-old legal question.
See Mark Twain's Science vs. Luck
The statutory language seems closer to the South Carolina ban on dice and cards than to the Pennsylvania cases that set out a skill or chance predomination test. Since the PPA only has a couple AG opinions to tilt at, I'd guess it's either first impression or the real case law goes the other way.
P0ker is "based on" the random distribution of cards, no matter how much skill is required to win.
You probably will call on the river position--but nervously.
This section of the brief is awfully thin and seems like probably the most important part. Anyone who's played p0ker can appreciate the difference between it and r0ulette. But it seems far from obvious that p0ker isn't also "based upon an element of chance."
Depends, how did he come by 4 aces? If he's holding pocket aces and two fall in the flop, yeah, he's probably not going to lose.
But if he's holding one and the fourth comes on the river, it's entirely possible he could have folded before realizing he'd have four aces. I've had something like that happen to me but with queens.
But the key with Texas Hold-em is if there's three aces on the table, everyone with any skill is going to be trying to figure out if any of the players have that last ace. You might be taking "a gamble" but I don't know that it's more or less of a gamble than if you had money riding on a chess game and you employed a particular gambit that would win if they chose one response and lose if they chose another.
The same is true even if the bettor isn't participating in the contest, at least under the statutory language quoted above. The Super Bowl is predominantly a game of skill, so my bet on it shouldn't count as "gambling" under the statute.
I like to gamble, so I'm not a fan of legal prohibitions like this. But regardless, this statute makes no sense.
(I like the overall test proposed by the PPA: can you get better with practice?)
If it were a game of mere chance, all players would play every hand to the final card and show their hands.
Well, if you want to get into that mess, someone could respond that collision physics is deterministic at the human-perceivable scale, and that just because the kicker doesn't know in advance exactly how the ball is going to bounce (nor the thrower the dice, for that matter) doesn't make the bouncing "chance". Chaotic is not synonymous with random.
Ain't happening, save in Hollywood.
Define: "Novice"
is it the player that thinks "Oh my god, I have a full house I can't possibly lose? or the player that has just enough sense to realize that the other players might have good hands too?
The first one might win this particular hand if no one can match a full house, but he wont last in the game. He'll either bleed to death from mounting blinds or go in one time when he's wrong about his chances.
That's what's caused Texas Hold-em to become so popular among card games. It's very hard in a hold-em game for you to get a full house without anyone who's paying attention to realize that you've got a good chance at having a full house.
So our hypothetical novice gets a full house on the flop or on the turn maybe. Every decent player is going to see the cards, and the really good players will read the player himself and they'll get out and leave our novice taking a small pot. Yes he will "win" the hand, but taking the blinds or maybe a small raise or two isn't really a "WIN."
If thats not skill I'd like to know what is.
Having an element of chance isn't the same as being based on an element of chance. Boggle has an element of chance - random letters turn up on the dice, but you don't win or lose as a result of the chance element. P0ker is based on random distribution of cards.
What's your name on P0kerstars?
Before that point, p0ker requires substantial skill. Even when you have the best hand (or "the nuts"), there is skill in maximizing your take by betting in such a way as to encourage your opponents to bet as much as possible.
I will always remember that Doyle Brunson himself commented that most of the time that he has gone "all-in," he had the weaker hand. Yet he wins the majority of those hands because the other player folds. Key to this is not simply that the other player happens not to have "four aces" or some other choice hand that no player would ever fold when Doyle makes his bet. The key is that Doyle knows how to figure out whether his opponent has such a hand in the first place. And that is clearly a skill -- and an unnerving one at that. Any person can win money with the best hand -- just refuse to fold. But winning money with bad hands and knowing when to fold against a winning hand requires a lot of intuition, psychology, and strategy. Not chance.
But as others have explained above, once wagering is involved, it becomes a game of skill having an element of chance. You don't win simply by getting the best "random distribution of cards."
But with the rules as written, it definitely is a game of skill.
But so long as the definition excludes games where eligibility to win is determined by chance but ultimate victory is determined by skill, I don't think the five letter game starting with "p" and other theoretically "winnable" wagering activities (e.g., betting on sports events and horse races, but not games where the player is betting against the house and the house always wins long-term) fall within the definition.
My cards: Ad (Ace of Diamonds), Ah (Ace of Hearts)
Opponent: Kc (King of Clubs), Qc (Queen of Clubs)
Flop: Ac As 7d
Turn: 10c
River: Jc
Odds of getting the exact two cards in the deck to make the one hand that will win (in this case): 989 to 1
No, I haven't seen everything playing hold 'em, but I can't imagine a worse beat than this. Thankfully, I was playing online, so when I started channeling Phil Hellmuth, no one heard me except my dog. And I didn't lose any real money...
The article expands on Tony Cabot and Robert Hannum's presentation at the Drake Gaming Law Symposium, which was held Sept. 12, 2008 at Drake University Law School in Des Moines, Iowa.
For my money, Cabot, Light, and Rutledge make a powerful case for chucking the "material element" and "gambling instinct" tests used by many jurisdictions in favor of the "predominance" test referenced in Paul's post.
Justin Randall
Article Editor, Drake Law Review
http://www.youtube.com/watch?v=xdeNyPxdxBo
The question of whether the game was one of chance was held to be a question of fact, determined by a jury (this seems odd to me, although as an English civil lawyer my knowledge of juries is very limited).
When the court of first instance found against the defendant, this left him having to appeal on the basis that the jury was misdirected or had reached an irrational decision. The appeal, which he lost, is here:
http://www.bailii.org/ew/cases/EWCA/Crim/2008/137.html
Bob
I disagree (and am just guessing that the KY court might see it my way).
"Just dealing" would be better called SOLELY BASED on chance. Real P0ker is BASED on chance, because it wouldn't be the same game without the random distribution of cards. Boggle is NOT BASED on chance, because the game would be the same even if you didn't use dice to create the input.
This is only true if the player with the full house has a pair in his hand.
You are right. My bad. If the board is paired, say AAJ, and you have AJ in your hand, then there is no way for there to be a four of a kind. My prior example only holds if you are holding a pocket pair.
Be that as it may, whether or not it's gambling under the law depends on how strictly gambling is defined, and I'm guessing the states differ on that.
What you are saying doesn't make sense to me. How do we tell if a game is the "same" or not, under your rules? If Boggle started with only Qs and Xs on the board, instead of a random assortment of letters, do you think it would be the same game?
On a related note, the general confusion in this thread stems from whether we mean "based on chance" relative to inputs or outputs. The inputs into Texas Hold 'Em (the cards dealt) are random, but the outputs are not. A skilled player can expect to win more than an unskilled player over time.
The relevant output is not the number of hands won, so it is borderline pointless to analyze Hold 'Em by analyzing a single hand. Money (or chips) is the relevant output. All players draw bum hands, all the time. Skilled players lose less on their bum hands and win more on their good hands.
Definitions relative to inputs make less sense to me. Is it fair to say football is a "game of chance" because one input into the game is a coin toss? Or because another input is whether the near-random collision of bodies on every play results in a season-ending injury to your all-pro tackle?
If you're only playing one hand, luck will predominate. The average mediocre player will have at least a 1/3 chance of taking money from a world-class player. But if you play 10,000 hands, luck will even out and skill will predominate, and the winner can confidently be called a better player. (In contrast, in most cass eeno (sic) table games there is no strategy or skill which will give a player an expectation of winning after playing 10,000 games.)
If the "unskilled" player is truly horrible and has a tell, and the skilled player is Doyle Bronson, then the bad player has very little chance of coming out ahead after even 10 hands. But with more normal skill variations (say, among players in a typical weekly game), it's not uncommon for the table's worst player to have a big winning night, and the table's best player to have a losing night, after playing perhaps 200 hands.
When I 'played' the stock market, it was a contest (my choices vs. others), a game (it was very entertaining, addictive perhaps), a gaming scheme (heh, yeah, see the dot-bomb, when I fled to index funds), and, um, I used a computer and schwab.com to do it all.
If this is a common perception among Pkroe players, it already tells us all we need to know, doesn't it? If winning a match and the enjoyment of the win itself pales in comparison to the size of the wager, clearly the statistical element expressed by the betting process predominates the game.
Somewhat paradoxically, that is one reason for Hold 'Em's popularity. It's easier for the unskilled to delude themselves. Sometimes they win, so hey, they can't be that unskilled.
Older p0ker games, like 5-card draw, have much much lower variances.
The state supreme court of Alabama made a similar finding in 1976).
Given that good players invariably beat poor players over the long haul in both games, the same reasoning should apply.
What makes both games effective ways for a good player to make money is that the fish win often enough to keep coming to the table - many fish even think that they are the good players. It's much harder to entice lousy chess players to play for money.
Unless, of course, there's a second pair on the board.
Once, I was holding A-K, and the flop was A-A-K. It was a $3-$6 game, so I slow-played, just calling. Three or four other players called on the flop.
The turn was a 3, making A-A-K-3. Another player bet out, I called, the rest folded.
The river was another 3, making A-A-K-3-3.
I bet out, the other guy raised, I raised back, he raised again, I called.
He turned over two 3s. Ouch.
However, I was not distressed, because the house had a "bad beat pool", and I collected $20,000.
Going back to the original post: I question the assertion that an element of pure chance is required for "gambling". By this definition, betting on horse races isn't gambling. If playing the ponies isn't gambling, then something's very wrong.
Why?
1. Because it takes absolutely no skill to lose money with ABSOLUTE certainty.
If it would be gambling it would be impossible to lose with absolute certainty!
2. You can't have professional players if it would be gambling.
3. Not the cards determine who wins. It is behavior that determines who wins and more important HOW much he extracts on average when he wins. You cant judge THNL on the basis of a single hand played.
4. Just because there are people who behave like unskilled players doesnt mean THNL is gambling, that would also mean that any sport with good players and bad players would be gambling. Besides, the referee makes mistakes and sometimes determines the outcome => game of chance?
5. Political definitions can't justify classification. Gambling is a game of chance where no player can influence the outcome other then de chance he takes and for how much. Any attempt to include THNL will lead to inclusion of other normal activities in life and therefore inconsequent legislation.
6. THNL is exactly like investing. Taking the best action given incomplete information and uncertain outcomes. Outperformance is a zero sum game, THNL is too. Bad players pay the good players on average.
PS. A pure political push for control because of addiction and other social, fiscal and lobby issues, should not lead to an easy reflex like the not so smart music industy did. There are other ways of dealing with these issues.
What the government should do is:
a. Determine a money levels where THNL is classified as private, business and professional.
privatelevel means no restrictions, businesslevel means at casino's, professionallevel means personal fiscal status.
b. Dont mess with definitions
c. Enforce rules of conduct at businesslevel.
This isn't quite true, but the way in which it isn't true actually strengthens your argument.
Many investment activities involve making probabilistic judgments about future events and deploying and diversifying funds to increase the likelihood of a positive return. For instance, in the stock market, some stocks will go up in the future, and some will go down. Based on incomplete information, along with the decisions of others and a certain amount of random chance (e.g., the cyanide attacker in the 1980's went after Tylenol rather than Bayer Asprin, thereby hitting the shareholders in Johnson &Johnson rather than the shareholders of Bayer), a smart investor covers various contingencies by putting his or her money in a range of different investments with different probabilities and expected rates of return.
Well, that's exactly how a good "poke her" player plays. He or she has incomplete information-- the bets of other players, the cards in his or her hand, his or her position in the betting order, and the cards on the board. Based on that incomplete information, he or she selects hands to play that he or she is likely to have an advantage on and plays them (thereby managing risk by folding hands where his or her likelihood of success is not worth the investment), and then as each card comes out and bets are made, selects a course of action that will maximize returns on the investment, or cuts losses by checking and folding when the information indicates that it is likely that someone else has a better hand or will not fold to a bluff.
Now, you can still be felled by random chance-- if your flush is broken up by a full house on the river played by a chasing opponent, you are in the same boat as the Johnson &Johnson shareholders after the Tylenol incident. But you avoid being hurt too much by that by having a big enough bankroll to absorb occasional losses in positive expected value situations and by being selective in the hands that you play and pursue.
The question then is indeed whether the outcome(s) of Hold-em are more due to chance or skill. As anecdotes exist for both types of outcomes (a novice hits a lucky card - chance; and expert bluffs another player out while holding far worse cards - skill), the key to resolving the question is which type of play is occurring more often. This is where the statistic about "hands folded to the winner" is so important. That is the method by which approximately 75% of all Hold-em hands are determined. Cards alone can NEVER account for this, cards may influence player decisions in Hold-em, but they never determine them.
Finally, when I play golf it is a pure game of chance as I have absolutely no clue how to play it well. So when T. Woods plays golf for money its a game of skill, but when I play golf for money its gambling? Of course not, it is the opportunity to use skill in the game that counts, not anyone's particular skill level. Court opinions are already clear on this point.
Also, you may wish to know where this predominance test got its start. Without a lengthy history, what this test is really designed to do is stop g—bling games that introduce a small element of skill as an attempt to get around the laws - imagine a roulette wheel where payouts were only made if you could correctly answer the question "what is 2=2" after your number hits.
Understood this way, it is clear why a game as complex as Hold-em, with myriad mathematical and psychological factors influencing its play and results, is indeed a game of mostly skill.
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