Contracts and Poker: There Ought To Be A Rule

A tournament player constantly berates other players at the table for their plays. Can the tournament director do anything about it?

In her column in the April 25, 2018 issue of Card Player, Linda Johnson reported that she had solicited comments about what should be done to improve poker, and the overwhelming response was, in various forms, “There ought to be a rule prohibiting being a jerk at the table.” Crafting such a rule is not so easily accomplished, as we shall see.

But first I want to give a shout out to Jan Fisher, who advocated prohibiting bad beat stories. I would compliment Jan on a good joke, but I suspect she wasn’t kidding. While most of us have a low tolerance for hearing the bad beat stories of others, I think our efforts should focus on addressing behavior that is rude or demeaning. To address the pain of inflicting bad beat stories on other players at the table, perhaps a casino could channel the behavior elsewhere. Years ago, the Wildhorse Poker Roundup had a telephone with a direct line to “Suck-out Susie,” who would sympathetically listen to your bad beat story. So perhaps a house rule could state, “We provide a telephone for telling bad beat stories to a sympathetic listener. A player who chooses instead to tell such a story at the table will be subject to a penalty.”

The problem with fashioning a rule prohibiting jerkiness is to find the right balance between the general and the particular. Merely stating, “jerky behavior is subject to a penalty” would raise the protest that one was not put on sufficient notice as to just what one could and could not do. Listing every type of jerky behavior that was prohibited, on the other hand, would prove futile, as the resourcefulness of players in coming up with previously unimagined forms of jerkiness would doubtless outpace the ability of the most imaginative drafter.

An analogy might be made to legislative attempts to prohibit pornography. It is a defense to a criminal statute that the text does not put one on notice as to what was prohibited. This led some drafters to spell out all the acts that would be regarded as pornographic, thus causing the text itself to fall within that sphere.

While he got a lot of heat for it, I think Supreme Court Justice Potter Stewart was on the right track when he said of pornography, “I shall not today attempt further to define the kinds of material I understand to be embraced, but I know it when I see it.” It should be noted that Justice Stewart’s ability to know it when he saw it is quite different from the ability of the average person, for as a judge he had thoughtfully considered many different examples. His is not an off-the-cuff conclusion, dependent on what he had for breakfast, but one reached after many years of reflective experience – what I call “informed intuition.”

Similarly, Major League Baseball Basic Agreement Article XII states that “Players may be disciplined for just cause for conduct that is materially detrimental or materially prejudicial to the best interests of baseball.” This power is given to the Commissioner of Baseball, another individual with an informed intuition.

Isn’t a tournament director also an individual whose long experience with observing different behaviors at the table provides him or her with that informed intuition to determine which ones should be permitted and which should not? A good example is Jack Effel warning William Kassouf at the 2016 WSOP main event that his “speech play” was getting out of hand, and finally giving him a stronger penalty for it.

Do we need a rule giving a tournament director such a power? I don’t think so, because the discretion is already there.

TDA Rule 70 states: 70, Etiquette Violations

Etiquette violations are subject to enforcement actions in Rule 71. Examples include but are not limited to: persistent delay of the game, unnecessarily touching another player’s person, cards or chips, repeatedly acting out of turn, betting out of reach of the dealer, abusive conduct, and excessive chatter.

Note the lawyerly use of the language “include but are not limited to,” indicating that the list of examples is merely illustrative rather than exhaustive. And the basic rule found in Rule 1 contains an echo of that famous rule from baseball:

1. Floor Decisions

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

The WSOP Rules state the discretion given to the TD even more forcefully:

41. In addition to the penalties authorized in Rule 40, Rio may impose penalties of any kind or nature upon any person who gives, makes, issues, authorizes or endorses any statement or action having, or designed to have, an effect prejudicial or detrimental to the best interest of the Tournament as determined by Rio, acting in its sole and absolute discretion…. Additionally, Rio may in its sole and absolute discretion impose penalties of any kind or nature upon any person who, in Rio’s view engages in inappropriate conduct during Tournament play.

So should the TD impose a penalty (which can be a warning) when one player berates another? The good news for those who asked for rules to crack down on jerkiness is that the rules are there. It is up to tournament directors to implement them, and I think we can trust them to know a violation when they see it. ♠

Scott J. Burnham is Professor Emeritus 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.