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Copyright © 2007 GAMBLING AND THE
LAW
HEADLINE: Legal Poker Under Prohibition 2.0
Body:
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?
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