Contracts and Poker: Cheating

Instead of prying up the corners of the cards to look at his hand, a player lifts his cards to his chest, enabling his neighbor to see them with a slight effort. If the neighbor looks at the cards, is he cheating?

Law students like to complain that a rule is “vague and ambiguous.” They have not yet learned to sympathize with the drafter faced with the problem of trying to cover all the bases. As for cheating, it appears only once in the TDA Rules. Rule 66.B. states: Penalties will be invoked for soft play, abuse, disruptive behavior, or cheating.

Immediately the warning bell goes off that this language is vague – what does it mean by cheating? More specifically, are players on notice as to what they can and cannot do? To provide more guidance, we could start by listing various forms of cheating: “A player shall not cheat by doing A, B, C, etc.” We then realize that we could never imagine all the ways in which a person might cheat, so our list is doomed to be incomplete. We also realize that because of the legal rule of interpretation that goes by the fancy name of expressio unius est exclusio alterius, when a rule specifies that acts A, B, and C constitute cheating, it implies that the omitted acts D and E do not.

The drafter of the rules is caught between the Scylla of vagueness and the Charybdis of underinclusion. The TDA seems to go with the vague standard, which can presumably be applied at the discretion of the Tournament Director. This approach is frequently used in contract law, where standards like “unconscionable,” “good faith,” and “reasonable” are fleshed out by the decisions of courts as they apply the concepts to different facts and circumstances.

One lawyerly technique is to insert the handy expression “including but not limited to” prior to the list of specifics. If we say, “A player shall not cheat, including but not limited to doing A, B, and C,” we are making clear that the list is nonexclusive – A, B, and C are among the things that constitute cheating, but D and E may be included as well.

This is the approach of the WSOP, which states in Rule 40.A:

Cheating is defined as any such act engaged in by a participant to break the established rules of play to gain an advantage.

1. Cheating includes, but is not limited to, acts such as: collusion; chip stealing; transferring non-value Tournament chips from one event to another; introducing chips not intended for an event, into an event; card marking; card substitution; or the use of any kind of cheating device.

It is obvious that the cheater engages in the act “to gain an advantage,” but what does it mean “to break the established rules of play”? The player looking at his neighbor’s cards is obviously gaining an advantage, but is he breaking an established rule of play? In fact, it could be argued that even the items listed are not established rules of play – where are they established?

The attempt to define cheating recently came up in two cases involving poker player Phil Ivey, but they involved his play at baccarat rather than poker. The facts are not in dispute. Observing that the border on one side of the cards was narrower than the other, Ivey induced the casino to allow cards that he indicated as “lucky” to be turned 180 degrees when returned to the shoe. Thus, he could spot those cards (the 7, 8, and 9) when they re-emerged from the shoe. Both the English and the New Jersey casino refused to pay him, claiming that his engagement in “edge-sorting” was cheating.

The English court first observed that there was no law on the subject of cheating at cards. That is because until recently, all gambling contracts in England were void, and you can’t sue based on a void contract. The court observed that Ivey had gained an advantage – the sine qua non of cheating. How did he gain that advantage? By actively inducing the dealer to do something rather than just observing what the dealer did. And he got the dealer to do it without the house realizing that the consequences were to tip the odds in his favor. While the court found that added up to cheating, I think most of us would disagree, reasoning that since the casino willingly agreed to all his requests, it assumed the risk that they might prove advantageous to Ivey.

The New Jersey court, on the other hand, found that Ivey did not cheat but broke his contract with the casino. The court used a broad interpretation of “marking,” finding that Ivey had marked the cards when he asked for them to be arranged in such a way that he could recognize them. This turned the odds in Ivey’s favor. Since the fundamental purpose of gambling in New Jersey is for the gambler to lose in order to enrich the state coffers, Ivey thereby breached his contractual obligation to be a statistical loser!

These cases are not helpful to us in defining cheating in a poker tournament, where the player does not play against the house. Nevertheless, they might provide us with a methodology for distinguishing behavior that constitutes cheating from behavior that does not. After all, players seek to get an “edge” in poker in many ways, even if they are not seeking an edge against the house. Which ways of gaining an edge are permissible and which are not?

It is often said that poker is a game of incomplete information, but that information should be equally available to each observant player. That seems to me the essence of cheating – using means to gain an advantage that is not available to others. When I look at my neighbor’s hand, the concern is not so much that I have an edge on the player who revealed, since it is his own fault for showing his hand, but that I have an edge on the other players who are not privy to that same information. If that is cheating, then you may protest that it should not be met with the automatic penalty that Rule 66 mandates for serious offenses. But remember that a penalty can include a warning, and a warning may be sufficient to put an end to the behavior.

So continue to hone your skills to improve your edge any way you can – as long as others can gain that same edge. ♠

Scott J. Burnham is the retired Curley Professor of Commercial Law at Gonzaga Law School in Spokane, Washington. He can be contacted at [email protected]. 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.