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Best of I. Nelson Rose

Gaming Guru

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Legal Poker Under Prohibition 2.0

9 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.

Recent Articles
Best of I. Nelson Rose
I. Nelson Rose

Professor I. Nelson Rose is an internationally known scholar, public speaker and writer and is recognized as one of the world's leading authorities on gambling law. A 1979 graduate of Harvard Law School, he is a tenured full Professor at Whittier Law School in Costa Mesa, California, where he teaches one of the first law school classes on gaming law.

Professor Rose is the author of more than 300 books, articles, book chapters columns. He is best known for his internationally syndicated column, "Gambling and the Law ®," and his landmark 1986 book by the same name. His most recent book is a collection of columns and analysis, co-authored with Bob Loeb, on Blackjack and the Law.

A consultant to governments and industry, Professor Rose has testified as an expert witness in administrative, civil and criminal cases in the U.S., Australia and New Zealand, and has acted as a consultant to major law firms, international corporations, licensed casinos, players, Indian tribes, and local, state and national governments, including Arizona, California, Florida, Illinois, Michigan, New Jersey, Texas and the federal governments of Canada and the United States.

With the rising interest in gambling throughout the world, Professor Rose has spoken before such diverse groups as the F.B.I., National Conference of State Legislatures, Congress of State Lotteries of Europe, United States Conference of Mayors, and the National Academy of Sciences. He has presented scholarly papers on gambling in Nevada, New Jersey, Puerto Rico, England, Australia, Antigua, Portugal, Italy, Argentina and the Czech Republic.

He is the author of Internet Gaming Law (1st & 2nd editions), Blackjack and the Law and Gaming Law: Cases and Materials.

I. Nelson Rose Websites:

www.gamblingandthelaw.com

Books by I. Nelson Rose:

Gambling and the Law

> More Books By I. Nelson Rose

I. Nelson Rose
Professor I. Nelson Rose is an internationally known scholar, public speaker and writer and is recognized as one of the world's leading authorities on gambling law. A 1979 graduate of Harvard Law School, he is a tenured full Professor at Whittier Law School in Costa Mesa, California, where he teaches one of the first law school classes on gaming law.

Professor Rose is the author of more than 300 books, articles, book chapters columns. He is best known for his internationally syndicated column, "Gambling and the Law ®," and his landmark 1986 book by the same name. His most recent book is a collection of columns and analysis, co-authored with Bob Loeb, on Blackjack and the Law.

A consultant to governments and industry, Professor Rose has testified as an expert witness in administrative, civil and criminal cases in the U.S., Australia and New Zealand, and has acted as a consultant to major law firms, international corporations, licensed casinos, players, Indian tribes, and local, state and national governments, including Arizona, California, Florida, Illinois, Michigan, New Jersey, Texas and the federal governments of Canada and the United States.

With the rising interest in gambling throughout the world, Professor Rose has spoken before such diverse groups as the F.B.I., National Conference of State Legislatures, Congress of State Lotteries of Europe, United States Conference of Mayors, and the National Academy of Sciences. He has presented scholarly papers on gambling in Nevada, New Jersey, Puerto Rico, England, Australia, Antigua, Portugal, Italy, Argentina and the Czech Republic.

He is the author of Internet Gaming Law (1st & 2nd editions), Blackjack and the Law and Gaming Law: Cases and Materials.

I. Nelson Rose Websites:

www.gamblingandthelaw.com

Books by I. Nelson Rose:

Compulsive Gambling and the Law

> More Books By I. Nelson Rose