Contracts and Poker: Waiving Your Rights

During the deal, the player who posted the big blind suddenly realizes that he had posted the big blind in the last hand. He shouts, “Wait a minute! I was the big blind last hand. The dealer forgot to move the button.” Is it too late to make it right?
Contract law does not like it when people sit on their rights, and encourages them to act without undue delay. The ultimate delay occurs when they sit on their rights for years and the statute of limitations runs, barring them from bringing a claim. In the shorter run, the problem is often that by sitting on their rights they “waive’ those rights. An example might be a finance company that requires you to pay your installment loan on the 1st of the month and has the right to repossess your car if you don’t. In January, you pay on the 10th and they don’t do anything. Something similar happens in February, March, and April. Now in May you pay on the 12th and they say, “Enough of this, already! Let’s repossess his car since we have the right to do so when he doesn’t pay on the 1st.” Can they do so? Probably not. They may have had that right back in January, but they waived it when they led you to believe nothing terrible would happen if you paid late.
The TDA rules have some things to say about waiver as well. Players have the right – in fact, the duty – to speak up if the pot is pushed to the wrong player. Rule 12 provides in part: “Any player in the hand or not, should speak up if he thinks a mistake is being made in reading hands or awarding the pot.” How much time do you have to speak up? That is addressed in Rule 21:
Disputed Pots. The right to dispute a finished hand ends when a new hand begins (see Rule 22). If a hand finished during a break, the right to dispute ends 1 minute after the pot is awarded.
When does a new hand begin? Players should be aware of Rule 22 because a dealer who is not familiar with the rule may see from the tournament clock that the blinds have gone up and ask you to put in a bigger blind sooner than is required and you may want to call him on it:
New Hand & New Limits. A new level will not be announced until the clock reaches zero. The new level applies to the next hand. A hand begins on the first riffle, push of the shuffler button, or on the dealer push.
So it should be clear that if you wait too long to challenge a disputed pot it will be too late.
What if the dealer neglects to move the button and you notice it after the deal has begun? Curiously, this problem, which occurs with some regularity, is not addressed in the rules. Rule 34 on Misdeals begins with the lawyerly language that “Misdeals include but are not limited to ….” A number of examples follow, one of which, “first card dealt to the wrong seat,” arguably fits our “button in the wrong place” situation. However, Rule 34.C tells us that “In a misdeal, the re-deal is an exact re-play: the button does not move.” Obviously, that would not be the case if the misdeal itself was the failure to move the button.
Furthermore, Rule 34.D tells us that “Once substantial action occurs a misdeal cannot be declared; the hand must proceed.” This is the waiver principle in action. When do you waive your right to call the misdeal? Rule 35 tells us:
“Substantial Action is either A) any 2 actions in turn, at least one of which puts chips in the pot (i.e. any 2 actions except 2 checks or 2 folds) or B) any combination of 3 actions in turn (check, bet raise, call, fold.)”
That takes a lot of time, and would allow a person to manipulate the rule. If I like my hand, I could keep mum about the misdeal, but if I don’t like my hand, I have plenty of time to protest and request a re-deal.
Whether failure to move the button is a misdeal may turn on whether it should be included with the other examples in that list. In contracts, we frequently have lists of things and use the rule of ejusdem generis to determine whether something else should be included in the list. Ejusdem generis is Latin for “of the same kind,” so we would include things similar to the items on the list, but exclude things that are not similar to the items on the list. Here, the list includes these examples:
1) 2 or more boxed cards on the initial deal;
2) first card dealt to the wrong seat;
3) cards dealt to a seat not entitled to a hand;
4) a seat entitled to a hand is dealt out;
5) In stud, if any of the first 2 down cards are exposed by dealer error;
6) In flop games, if either of the first 2 cards dealt off the deck or any other 2 downcards are exposed by dealer error.
It seems to me that failure to move the button is not of the same kind as the examples on the list, for the examples involve “patent” actions, such as exposing a card, that can be spotted when they happen, while having the button in the wrong seat is a “latent” action that requires reconstructing the past hand to reveal it. Thus, it is subject to manipulation where the others are not.
So it seems to me that you have waived your right to complain that the button is in the wrong place if you raise the issue after you have received both cards at the very latest. For simplicity, it might make sense to use the disputed pot rule and say that the right to dispute a button in the wrong place ends when a new hand begins. ♠

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].