Contracts and Poker: Penalties

A player who is new to tournament poker fails to bet on the river when he has the nuts and is last to act. Does the Tournament Director have to give the player a penalty?

In contract law, the remedies for breach of contract vary depending on the seriousness of the breach. A very minor breach, sometimes called “de minimis,” may result in no consequence; an ordinary breach, called an “immaterial breach,” may lead to an award of damages; and a serious breach, called a “material breach,” may lead not only to damages, but may excuse the other party from performing its part of the contract.

Similarly, there is a range of consequences for violating the rules in tournament poker. The spectrum of penalties is outlined in TDA Rule 66A:

66: Warnings, Penalties, & Disqualification

A: Penalty options include verbal warnings, one or more “missed hands”, one or more “missed rounds”, and disqualification. Missed rounds are assessed as follows: the offender will miss one hand for every player (including him) at the table when the penalty is given multiplied by the number of penalty rounds. Repeat infractions are subject to escalating penalties. Players away from the table or on penalty may be anted or blinded out of a tournament.

The caption to this provision is confusing, because it enumerates warnings, penalties, and disqualification as though these are different things – but as defined, both warnings and disqualification are penalties. That takes a moment to sink in – a warning is a penalty. Even Linda Johnson, a founding member and current member of the Board of Directors of the TDA, gets tripped up on that. She wrote in a Card Player column that “Rule 66 allows the tournament director to issue one or more warnings before issuing a penalty.” She meant, “Rule 66 allows the tournament director to issue one or more warnings before issuing a more severe penalty.” Linda concluded by saying, “There are lots of situations that should merit giving a warning rather than a penalty.” She meant, “There are lots of situations where the penalty given should be a warning.”

I do not mean to criticize Linda for falling into this trap, and it should not detract from the important point she was trying to make — the TD has the discretion to determine the seriousness of breaking a rule, just as a judge decides the severity of a breach of contract. This discretion is initially set out in Rule 1, which provides that “the best interest of the game and fairness” can trump the technical rules. However, the discretion may appear to be limited by Rule 66B:

B. A penalty may be invoked if a player exposes any card with action pending, throws a card off the table, violates one-player-to-a-hand, or similar incidents occur. Penalties will be invoked for soft play, abuse, disruptive behavior, or cheating.

Initially, it seems that the purpose of this rule is to distinguish between discretionary and mandatory rulings by the TD. For the first listed offenses, he “may” issue a penalty – that is, he has discretion as to whether to invoke a penalty or not, and for the second listed offenses, he “will” issue a penalty – that is, a penalty is mandatory. So what distinguishes the two groups of listed offenses?

Many of these behaviors are not addressed in other rules. The discretionary offenses include exposing a card with action pending and one-player-to-a hand. These are addressed in Rules 63 and 62 respectively. However, no other rule mentions throwing a card off the table. The rule also incorporates “similar incidents” without indicating in what way these incidents are similar. It appears that what is similar is that all of these actions could be taken by a player either willfully or unintentionally. So it is appropriate for the TD to have discretion in determining whether to assess a penalty for the offense.

Some of the mandatory offenses are also not mentioned elsewhere. Soft play is prohibited in Rule 64, but there is no rule telling players not to engage in disruptive behavior or to cheat! As indicated in the discussion of Rules 1 and 2 in an earlier column, just because there is no rule expressly prohibiting behavior does not mean the behavior is permitted. “Do not cheat” is no doubt part of the “common law” of poker and the TD has the power to take appropriate action.

With respect to abuse, Rule 66B initially seems to contradict Rule 65, which says that “repeat etiquette violations will result in penalties.” That rule gives “abusive conduct” as an example of an etiquette violation that will result in penalties. Thus, it seems to say that only repeat abuse will result in penalties. Since Rule 66B says that “penalties will be invoked for … abuse,” it is not clear whether a penalty for abuse is mandatory if the abuse is not a repeat violation.

In general, it looks like the mandatory offenses are distinguished from the discretionary offenses because they exemplify willful conduct. Thus, Rule 66B tells the TD to come down harder when the behavior is willful. But what if it is not willful? Both abusive conduct and soft play can stem from a variety of motives that may become apparent from the context. For example, a player may not have known he had the nuts when he failed to bet. But we know the answer to this question. In a case where the TD is required by the rule to issue a penalty, that penalty could be a warning. And, using the power given by Rule 1 to do what is in “the best interest of the game,” the TD could even determine that the offense is de minimis, and issue no penalty at all.

Thus, the answer to our opening question is: Yes, a penalty is mandatory, but that penalty can be a warning. And in a rare case, no penalty need by imposed.

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].