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Best of I. Nelson Rose
Legal Poker Under Prohibition 2.09 March 2007
Bill Frist, then Majority Leader of the U.S. Senate and now ex-would-be presidential candidate, designed the Unlawful Internet Gambling Enforcement Act ("Prohibition 2.0") to cover Internet poker. He defined "bet or wager" as including risking something of value on the outcome of a contest, sports event "or a game subject to chance."
Is there any game, even chess, that is not "subject to chance?"
But Frist, whose arrogance was matched only by his incompetence, actually created the greatest explosion of creativity in the poker industry that I have ever seen. Everyone wants to be the next PartyPoker.com, to figure out a way to spread legal poker games online.
The cleanest way to run a traditional Internet poker site that does not violate any federal or state law is to be licensed by a state and limit players to people who are physically present in that state.
Even in this situation, it is possible the federal Department of Justice might say there is a violation of the Wire Act, since a phone line might pass temporarily into another state. But the DOJ would lose this argument for many reasons. The sole purpose the Wire Act was enacted in 1961 was to help the states enforce their public policy, which, at the time, was prohibition. What could possibly be the justification for preventing a state, like Nevada, from allowing its residents to bet with its own state-licensed poker sites?
The main obstacle to every state licensing, regulating, and, of course, taxing, their own Internet poker sites is politics. Utah is not the only place where legislators would hesitate to authorize even the most limited form of online gaming. In Nevada, the problem is the opposite: there are already so many (landbased) licensed poker rooms that it is difficult to work out the details for sharing the new online revenue, and there is fear of diverting players away from the existing gaming floors.
In general, the answer is "skins." Players will log on to Caesars Palace's future online poker room and choose which game they want to play, say $5 - $10 Hold'em. They then are placed at a table that has a Caesars Palace logo on it. They probably will not know, or care, that other players may see different logos because they signed up through different casino websites. Computers ensure that each casino gets its correct share of the table's revenue.
But there are at least three other ways to have legal online poker. All gambling requires prize, consideration and chance. Eliminate any one, and it is not gambling.
A site could charge money, even for games of chance, so long as it does not give valuable prizes. Bragging rights don't count. So, someone could start a contest for the world's greatest poker player, if all they win is a trophy, no cash.
Some poker sites allow players to play for free. For example, at BetZip.com (one of my clients), anyone from more than 20 states can enter by merely mailing in a hand-written card. This is not gambling, even though players can win up to $10,000 cash. Since there is no consideration, it does not violate federal law or the laws of most states.
Others are looking at showing that poker is a game of skill. I am writing a Legal Opinion for one of the biggest operators that at least tournament poker is predominantly skill, and therefore legal under federal law and the laws of most states.
There may or may not ever be lawsuits on the issue. After all, is there any government lawyer who wants to be made a public laughingstock by claiming that poker is a game of chance?
© Copyright 2006, all rights reserved worldwide. GAMBLING AND THE LAW® is a registered trademark of Professor I Nelson Rose, Whittier Law School, Costa Mesa, CA
© Copyright 2006. Professor I Nelson Rose is recognized as one of the world's leading experts on gambling law. His latest books, GAMING LAW: CASES AND MATERIALS and INTERNET GAMING LAW, are available through his website, www.GAMBLINGANDTHELAW.com.
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