Contracts and Poker: Filling Gaps in the Rules

Players at a multi-day tournament complain about the odor emanating from a player at their table. There is nothing in the rules that addresses this situation. Can the Tournament Director take action?

Rules in contract law come largely from two sources – the common law (past customs and court decisions) and statutes. One of the strengths of the common law is its flexibility, for a rule is always a function of the facts and circumstances that gave rise to it, and if those facts and circumstances change, then the rule can change as well. Statutes appear to be less flexible. Nevertheless, many statutes provide for some wiggle room in their application. For example, the Uniform Commercial Code, which provides state law for many commercial transactions, provides in § 1-103(a):

The Uniform Commercial Code must be liberally construed and applied to promote its underlying purposes and policies, which are: (1) to simplify, clarify, and modernize the law governing commercial transactions; (2) to permit the continued expansion of commercial practices through custom, usage, and agreement of the parties; and (3) to make uniform the law among the various jurisdictions.

Similarly, Rule 1 of the TDA Rules sets the stage for the rules that follow by stating that the rules are to be applied flexibly:

The best interest of the game and fairness are top priorities in decision-making. Unusual circumstances occasionally dictate that decisions in the interest of fairness take priority over technical rules.

While there is some overlap in the expression of the rules, the WSOP rules differ in a number of details from the TDA Rules. The man reason for this difference is that the TDA provides rules that any complying poker room can use while the WSOP rules are tailored for a particular set of tournaments. Many of those events are televised and they all represent the WSOP brand. Thus, there are many details that make sense only in that context. For example, WSOP rule 54 provides in part that “participants may not cover or conceal their facial identity.” There is also no reason for supplementary House Rules since these are the rules for a particular house (the Rio).

Like the TDA Rules, the WSOP rules give discretion to the tournament staff, make clear that many particulars are only by way of example, and contain a nice statement that gaps in the rules can be filled in. This is one of the functions of contract law – every contract is necessarily incomplete since we can’t anticipate everything that might happen. Therefore, there must be a way to fill those gaps. The problem of the incomplete rules is addressed in WSOP rule 50:

Where a situation arises that is not covered by these rules, Rio shall have the sole authority to render a judgment, including the imposition of a penalty, in accordance with the best interests of the Tournament and the maintenance of its integrity and public confidence.

Nevertheless, the WSOP rules exemplify a more detailed approach to rule-drafting than the TDA Rules — the WSOP rules frequently try to anticipate everything that might happen. And if something happens that was not anticipated, then a rule will often be drafted to cover it. For example, a number of years ago, a player decided he would play better if he let his animal nature prevail, and did not bathe or change clothes during the Main Event. After his tablemates complained, he was led away by tournament officials, screaming, “Where is it written that you have to take a bath?” Now it is. WSOP Rule 39.C provides:

This rule shall include, but is not limited to, any participant whose personal hygiene has become disruptive to the other participants seated at their table. The determination as to whether an individual’s personal hygiene is disruptive to other participants shall be determined by the Tournament Staff which may, in its discretion, implement sanctions upon any such participant who refuses to remedy the situation in a manner satisfactory to Rio.

Another example of a specific rule, this one perhaps addressing the needs of a mainstream TV broadcast audience more than the sensibilities of other players at the table, is WSOP Rule 53.C.iv, which provides:

Under no circumstances will Rio permit any participant to wear any logo, slogan or promotional language of any organization (or any parent, affiliate or subsidiary of any organization) that Rio, acting in its sole discretion, determines: …

iv. Contains any material that is defamatory, obscene, profane, vulgar, repulsive or offensive, either in theme or in treatment or that describes or depicts repellently any internal bodily functions or symptomatic results of internal conditions, or refers to matters that are not considered socially acceptable topics;

Although the TDA Rules are not this specific, no doubt the Tournament Director would have discretion to police this conduct under the general principles found in Rule 1 and the admonition to players in Rule 2 to “generally contribute to an orderly event.”

These general concepts tell us that the rules are not to be applied mechanically but require discretion. These concepts are similar to the obligation of “good faith and fair dealing” that is read into the performance of contracts. Thus, an “angle shooter” may find opportunities to take advantage in spite of the rules – and even because of the rules. A great example can be found at http://www.youtube.com/watch?v=tkxcBy6js7s, which shows a player taking advantage of the rule that objective manifestations govern over subjective thoughts. The TD should have the power to deal with such behavior.

So if the TD does not follow the strict letter of the rules, penalizes someone who follows the strict letter of the rules in order to take advantage, or comes up with a new rule to address an unanticipated situation, cut him some slack. He is doing what he is supposed to do. Like the Commissioner of Baseball, he is exercising his authority “in the best interest” of the game. ♠

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].