Contracts and Poker: Resolving Ambiguity

With blinds at 100-200, a player says, “Raise – 500.” How much did the player bet?
A statement is ambiguous if it has more than one meaning. Law students are all familiar with the notorious case in which a seller who agreed to supply “chicken” delivered stewers to the buyer. The buyer protested that “chicken” meant broilers and sued for breach of contract.

As in the chicken case, most problems with ambiguity can be avoided if the parties can spot the ambiguity and cure it before it causes any problems. Thus, the TDA Rules warn the players to make their intentions clear in order to prevent ambiguities from arising. The player in the above example might have said, “Raise – make it 500” or “Raise to 700.”
When an ambiguity does arise, then there are various ways to resolve it.

One resolution is to establish a presumptive meaning. If that meaning stands regardless of the facts and circumstances, then it is an irrebuttable presumption – it can’t be changed. TDA Rule 45, the oversized chip rule, is a good example. If the blinds are 100-200 and a player puts out a 500 chip, it is ambiguous whether the player intended to call or to raise. The rules say it is a call, and this presumption can’t be rebutted. If a player says, “Raise – 500,” this is also ambiguous. Does it mean a raise to 500 or a raise of 500, that is, a raise to 700? While either possibility is arguable, sometimes there just has to be a rule to break the tie. In this case, TDA Rule 43B says that it is a raise to 500.

On the other hand, some presumptions may be rebutted because the circumstances favor one interpretation. For example, TDA Rule 52 states that “if a declared bet can reasonably have multiple meanings, it will be ruled the lesser value.” For example, with blinds at 200-400, there is 1,000 in the pot, and after the flop a player declares, “I bet five.” Since it is unclear whether “five” means 500 or 5,000, the bet is 500. While it may initially look like this rule creates an irrebuttable presumption, note that the word “reasonably” was tucked into the rule.

The word “reasonably” signals one of the ways in which the law resolves ambiguities – a reasonable meaning prevails over an unreasonable meaning. Contrast this situation: with blinds at 200-400, there is 15,000 in the pot, and on the turn a player declares, “I bet five.” In this context, “five” more reasonably means 5,000, so the bet is 5,000. The presumption gives way to a more reasonable meaning when the action is looked at in a larger context. The chicken case, by the way, was resolved against the buyer when he was unable to prove that his meaning was more reasonable in the larger context of the poultry business.

Another way to avoid ambiguity is to define terms. How easy that would have been in the chicken case! However, if parties fail to use the defined terms, the use of different language may suggest that they intended a different meaning. This problem is captured in TDA Rule 3:

Official betting terms are simple, unmistakable, time-honored declarations like: bet, raise, call, fold, check, all-in, complete, and pot (in pot-limit only). Regional terms may also meet this test. … Also, players must use gestures with caution when facing action; tapping the table is a check. It is the responsibility of players to make their intentions clear: using non-standard terms or gestures is at player’s risk and may result in a ruling other than what the player intended.

I find the reference to “official” terms odd, and would prefer to call them “standard” terms, but the goal of getting players to use only these terms is laudable. Considering non-standard terms, if Scotty Nguyen says, “All you can eat, baby,” I think we have no trouble translating this into “All-in.” My local poker room is a bit of a stickler for this rule, and when a player uses non-standard terms, it seems quick to apply another rule the law uses to resolve ambiguities — the rule of contra proferentem. This is the lawyer’s fancy way of saying that if you are the one responsible for causing the ambiguity, then you will lose.

For example, with blinds at 500-1,000, after the flop there is 5,000 in the pot. A player bets 4,000 and is called. After the turn, the same player says, “Same bet.” The player then pushes out 4,000. The dealer states that this is a non-standard term and the bet will be the minimum bet of 1,000. This makes no sense to me, for while the term “same bet” may be non-standard, it seems to me the only reasonable interpretation of it in these circumstances is a bet of 4,000. But some courts – and some Tournament Directors – elevate the rule of contra proferentem over the rule of reasonableness.

I remember the first time this rule was called on me. It was down to heads up. I had about 200,000 and my opponent had about 50,000. I said, “I’ll put you all in.” The dealer reprimanded me, saying, “There is no such bet as ‘I’ll put you all in.’” That is true, but what else can it mean other than, “I have more chips than you, so I cannot be all-in myself, but I bet enough to put you all-in?” Fortunately, the Tournament Director let my intended bet stand.

So the lesson, both in law and in poker, is to try to avoid ambiguity. Use defined terms where possible. If there is a possibility of misinterpretation, make your intention clear. But if you are called out for an ambiguity, argue that your interpretation is more reasonable and should prevail. ♠

Scott J. Burnham is the retired Curley Professor of Commercial Law at Gonzaga Law School in Spokane, Washington. This column is adapted from his article, A Transactional Lawyer Looks at the Rules of Tournament Poker, which was published in Gaming Law Review and Economics. He can be contacted at [email protected].