Contracts and Poker: Basic Principles

The TDA Rules admonish players to know the rules, but is that a reasonable expectation? Ideally, the rules should be based on what we would reasonably expect the rules to be. If that were the case, then even if we didn’t know a rule, we could deduce it most of the time based on our sense of what is reasonable.

When I teach contracts, I tell the students that contract law is easy because nine times out of 10, the rule is what is reasonable. It works a lot like the old Montana speed limit. People used to say that Montana did not have a speed limit. That was nonsense – of course it did. The speed limit was “reasonable and prudent under the circumstances.” Given that principle, you could pretty easily figure out how fast you could go in a particular situation. You didn’t need to remember or look for a number — until they changed the rule.

In fact, there are a few basic principles from contracts that form the basis for the TDA rules. If you are aware of these guiding principles, then you should be able to deduce the rules. Here are the principles:

Rules that are arbitrary. Let’s start with the exception — there are a few occasions when one rule is no more reasonable than another, so you can’t deduce it – you just have to know what it is. For example, is the rule that you have to be at your seat when the first card is dealt or when the last card is dealt? I don’t think either one is more logical than the other, but the TDA rule is the latter. In a limit game, is the number of raises permitted after a bet three or four? Again, it doesn’t matter logically, and even the TDA does not have a rule on this but leaves it to the house.

Rules to resolve ambiguities. Since ambiguity means something can be interpreted in at least two ways, there has to be a rule to resolve an ambiguity. Sometimes we resolve it in terms of what is reasonable. For example, if there is 10,000 in the pot, and a player says, “I bet five,” it is reasonable to assume the player meant 5,000. If neither interpretation is more reasonable, then, as in contract law, the TDA rules resolve the ambiguity against the person who caused it. For example, if the betting limits are 100-200 and a player silently puts out a 500 chip, is it a call or a raise? It will be ruled a call unless the player says otherwise when making the bet. Similarly, if a player in that situation says “Raise – 500,” is that a raise to 500 or a raise to 700? The ambiguity will be resolved by making the bet the smaller amount.

Rules based on objective manifestation. As with contract law, the rules of poker look to your actions, not your thoughts. If you push forward a 5,000 chip and say, “Ooops – I meant to bet 500,” the dealer will say something to the effect of, “We don’t care what you meant to do. We have to go by what you actually did.”

Rules based on reliance. One of the most common mistakes made by new players in live games is the string bet. Perhaps they have seen too many movies or participated in home games where a player says something like, “I’ll see your 200, and I’ll raise you 300 more.” It is often said that the string bet is prohibited because it can be used to gather information, but it is often clear that novice players are not trying to get information — they just don’t know better. A better explanation is that it is reasonable for other players to rely on the initial expression – “I’ll see you,” which we can translate to, “I call.” It doesn’t matter that no one actually relied on what the player said. What we enforce is a hypothetical reliance so that the rule applies in every case.

Rules based on waiver. If you have an opportunity to act and fail to do so in a timely manner, you may lose your rights. A good example is Rule 43B, which provides that if you are skipped by action out of turn and don’t speak up before substantial action has occurred, the action out of turn is binding.

Reasonably implied rules. Many rules can be implied based on what is reasonable in a particular situation. TDA Rule 1 now calls these “common-sense decisions.” Even if the rules did not say, “Do not cheat,” cheating would still be forbidden. Cheating gives one player an unfair advantage over another and a player ought to be able to distinguish between the skills they can use to gain an advantage and the skills they can’t use.

Rules based on etiquette. Just as Robert Fulghum was able to reduce the rules for living your life to a few simple rules that you learned in kindergarten, it is not hard to figure out how you should behave at the table. Model your own behavior after well-respected players.

So instead of learning all the rules by heart, you won’t go wrong by remembering the basic principles and applying them where appropriate:

Learn the rules that are arbitrary.
Don’t act ambiguously but make your actions clear.
What counts is your words and actions, not what is in your head.
Other players are entitled to rely on your actions.
Speak up or forever hold your peace.
Rules will be implied based on what is reasonable.
Don’t be an assh*le at the table. ♠

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.