Contracts and Poker: Player Declarations

When it is a player’s turn to act, she holds a chip vertically and taps it a couple of times on the top of a stack of chips. The dealer says, “Check.” The player protests, “Wait a minute. I didn’t intend to check, I was just playing with my chips!” The tournament director (TD) is called over for a ruling. What should the TD determine?

My fellow columnist, The Dealer Chick (TDC), wrote a great column recently on the responsibility of players to keep the game moving, and the role of dealers in helping achieve that goal. She only slipped a bit when she referred to the World Series of Poker rules. TDC told us that “the rules say, in no uncertain terms, that players are expected to act in a way that keeps the game moving, including … checking by rapping their hand on the felt in a clear manner so as to not cause confusion.”

Unfortunately, there are no such rules. There is no general rule that admonishes players to keep the game moving. And there is no specific rule indicating how to check. But TDC’s point is nevertheless correct, as we shall see. The applicable WSOP rules state:

59. Official Terminology of Tournament Poker: Official terms are simple, unmistakable, time-honored declarations like: bet, call, fold, check, all-in, pot (in pot-limit only), and complete. Regional terms may also meet this standard. The use of non-standard language is at Participant’s risk because it may result in a ruling other than what the Participant intended. It is the responsibility of Participants to make their intentions clear. See Rules 60 and 90.

60. Non-Standard and Unclear Betting: Participants use unofficial betting terms and gestures at their own risk. These may be interpreted to mean other than what the Participant intended.

The rule is clear that if the bettor makes a verbal statement, “check” is the word to use. But there is no official gesture to indicate a check (TDA Rule 3 is similar, but adds that “tapping the table is a check.”) However, in both contracts and poker, custom and usage play an important role in filling the gaps.

For example, if a sales contract between two businesses does not say when payment is due, we would look to see if there is a customary practice in that particular business. If it is customary to pay within 30 days of delivery, then that is read in to fill the gap in the contract. Similarly, while the WSOP rules do not say what the standard gesture is to indicate a check, I think it is fair to say that custom and usage has established rapping the felt with the knuckles or fingers as the way to do it. So TDC is ultimately correct.

TDC is also correct that other gestures, such as using your index finger, wiggling your fingers on your shoulder, twirling your finger in the air, or raising an eyebrow, are ambiguous. A word or gesture is ambiguous if it is capable of at least two different interpretations. Tapping chips against each other is ambiguous – it might mean you are checking and it might mean you are just playing with your chips.

There are two ways to resolve an ambiguity – the objective approach and the subjective approach. With the objective approach, what matters is what a reasonable person would think based on what they can perceive from the facts and circumstances. With the subjective approach, what matters is what the person who created the ambiguity intended.

In the hypothetical at the beginning of this column, the dealer, taking the objective approach, concluded that there was a check. The player, taking the subjective approach, said that she intended not to check, but to play with her chips. Which view prevails?

In contracts, the objective view wins out. Suppose you say, “I’ll sell you my Ted Williams autographed baseball for $400,” and I say, “It’s a deal.” You then say, “Wait a minute – I was just making a joke! I never intended to sell that ball.” If I thought you were serious, that does not make it a serious offer. But if a reasonable person would have thought you were serious, then it is deemed to be a serious offer and a binding contract was formed when I accepted… even if you were in fact joking.

In poker, the objective view prevails as well. WSOP Rule 60 tells us that “[unofficial betting terms and gestures] may be interpreted to mean other than what the Participant intended.” Just as in contracts, it doesn’t matter what you intended. What matters is how the gesture is interpreted by a reasonable person. And who is that reasonable person? The dealer!

Most of the time, the objective and subjective views are in harmony because the dealer will read a gesture the way the player intended. But not always. When the TD is called over to resolve the dispute, the dealer will explain that she interpreted the gesture as a check. Even though the player protests that that is not what they intended, most of the time the TD will back up the dealer, who was in the best position to determine the objective meaning of the player’s actions.

So the lesson is clear, and TDC is right. If players make their language and gestures clear, they will not only speed up the game, but they will also avoid the unhappy fate of having an action interpreted to mean something other than what they intended. ♠

Scott J. Burnham is Professor Emeritus at Gonzaga University School of Law. He can be reached at [email protected].