Contracts and Poker: Disclosure

On the river, one player bets and another goes into the tank. “Don’t call unless you can beat aces,” says the bettor, and the other player folds. The floor is then called to determine whether there has been a rule violation. The TD cites TDA Rule 67.1: “Players … must not … discuss contents of live or mucked hands.” Should the TD issue a penalty (which might be a warning)?

This is one of the most controversial of the TDA Rules. The problem is that it is so vague that it is open to varying interpretation – a big problem for rules that are designed to promote uniformity in the administration of tournaments.

There is a difference between language that is ambiguous and language that is vague. Ambiguity is almost always bad, for ambiguity means a word or gesture can have more than one meaning and it needs to be resolved one way or the other; the choice is usually binary – it means either one thing or the other. The single chip rule is a good example. If the bet to me is 200, and I push forward a 500 chip, this action is ambiguous. It is either a raise or a call, and a rule is necessary to resolve its meaning.

Vagueness usually refers to a spectrum of meanings or behaviors rather than a binary choice, and what it means in a particular case may depend on the facts and circumstances. Frequent readers of this column know that I appreciate the vagueness of the instruction to the TD to make what TDA Rule 1 calls “common-sense decisions in the interest of fairness,” a rule that can be invoked in a wide range of circumstances.

The word “reasonable” is a vague word, and necessarily so, for what is reasonable depends on a lot of circumstances. Nevertheless, in most situations, a person can determine where their behavior falls within the “reasonable” spectrum. When the Montana speed limit was “reasonable and prudent under the circumstances,” for example, it wasn’t that hard for a driver to figure out that the speed for driving on a wet mountain road in Western Montana was different from the speed for driving on a clear straightaway in Eastern Montana.

There is no such standard, however, for the player trying to figure out the admonition not to discuss the contents of one’s hand. Is a verbal disclosure the same as actually revealing a card or cards? Is lying about your hand the same as telling the truth about it? Does it matter whether you are heads up? It might be noted that the rule is captioned “No disclosure.” The word disclosure seems narrower than discuss.

Can you say something general like “I have a really big hand” or “Call if you don’t like money” that discusses the hand but does not disclose its contents? I don’t know, and I don’t have any way of determining how a TD might rule. Therefore, I might conclude that I would be wise to say nothing about my hand. But if the rule is that I may not say anything about my hand, why isn’t it expressed that way? As I write this, I am playing an online tournament, and I see the message “Chat is disallowed until all betting is completed for this hand,” so that is apparently the rule in some games.

Often in law to figure out what a rule means it is helpful to ask, “What is the reason for the rule?” This rule actually tells us – the language of TDA Rule 67 states in full: “Players must protect other players in the tournament at all times. Therefore players, whether in the hand or not, must not: 1. Discuss contents of live or mucked hands.” If the reason for the rule is to protect other players, in what way am I failing to “protect” a player if I discuss the content of my hand?” It is possible that I am protecting them from collusion. At a final table, for example, players in collusion might have worked out that they will disclose the content of their hands accurately in order to keep the other in the tournament longer. We know, however, that this is rarely the case, and if it is, the behavior can be dealt with under the rules forbidding collusion. In the usual case, some obnoxious player (no names will be used here) discusses their hand because they are employing “speech play” to gain an advantage.

Do we need to protect other players against the advantage someone may gain by discussing their hand, for example, to induce the other person to fold? Here contract law is of no help, for contract law forbids misrepresentation absolutely. Well, not quite absolutely. In negotiating a contract, the rule does not apply because everyone knows that misrepresentation is part of the negotiating game. If I am offering to sell you my car and I say, “I won’t take a penny less than $10,000,” you know perfectly well that I don’t mean it and may well be happy with $8,000, so you act accordingly.

Similarly, misrepresentation is part of the game of poker. When I push out some chips, you don’t know whether I have a big hand or am misrepresenting a mediocre hand. If in addition to that act, if I say, “Don’t call unless you can beat aces,” I may well be compounding the misrepresentation. But isn’t it your job to figure that out, just as you must figure out whether my bet is a bluff or not?

Ultimately, I don’t know what the solution to this problem should be. But I do know that we need more guidance than the TDA Rules currently provide in order to determine what we can and cannot do. Getting penalized is a tough way to learn, and because application of the rule is unlikely to be uniform, that lesson may not help us predict what the next TD will do. ♠

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.