Can A Poker Site Exclude You For Winning Too Much?

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This summer, online poker site GGPoker.com faced some negative publicity after being accused by members of the poker community of banning “winning” players.

Can an online poker site or a casino exclude players because they win too much?

When I taught first-year law students, they often asked me what they should do when they went home during a break and people would ask them for legal advice. I told them, “Look thoughtful, stroke your chin a couple of times, and pronounce, ‘Hmm. Good question. It depends on the jurisdiction.’”

That’s how I would answer this question – it depends on what laws are governing the transaction.

It turns out that GGPoker is licensed in Curacao. (How many of you could identify that country on a blank map?) Apparently it is easy to obtain a gaming license in Curacao, and there is little regulatory oversight of the licensee. So the rights of the poker site and the customer are pretty much dictated by the contract between the parties.

Part of the contract is the “Security and Ecology Agreement” (SEA) that enumerates a number of rules to carry out “GGPoker’s ethos … that a healthy and safe user ecology is paramount to providing enjoyable poker games.” The prohibited activities include use of bots, account sharing, ghosting, collusion, predatory behavior, and bumhunting.

I must admit I was not familiar with the latter expression, which the site defines as “deliberately targeting one subset of (usually weaker) users while avoiding giving action to another subset of (usually stronger) users.”

In response to the outcry in the poker community against its actions, GGPoker claimed that it was not banning players for winning per se, but banning them for violating these rules.

As my mother used to say, “It’s not what you say; it’s how you say it.” Certainly, as a matter of contract law, the site would be free to take action against players who violate the rules. Players unhappy with its enforcement of the rules would have to do what players have always done – vote with their feet by moving to a different site.

So, let’s ask the more difficult hypothetical question. Can an online site or a casino ban a player just for winning?

Of course, it could be argued that where there is smoke there is fire, and the fact that a player consistently wins could be circumstantial evidence that they are using some device other than ordinary skill to win. (A certain situation that you are all familiar with springs to mind.) So let’s rule out that possibility as well, and focus on a player whom the site calls the “good pro” or “regular pro” rather than a “bad pro.”

Though it would have little reason to do so, I’m sure GGPoker could find that a good pro or regular pro is harmful to the poker ecology, like the predator at the top of the food chain who does not contribute much to the circle of life.

Would a player banned for this reason have any recourse? The site’s Terms and Conditions describe a dispute resolution mechanism, but since there is no regulatory agency, it involves complaining within the company, with the dispute ultimately resolved by the Company’s Support Manager. That does not sound promising for the player raising the dispute.

How would such a player fare in a different jurisdiction, where there are regulatory agencies that regulate online sites and casinos, presumably for the benefit of players, and ultimately courts that can address the rights of players? An analogy comes to mind with the situation of the blackjack card-counter, who brings no device other than this particular skill to the table. Can a casino ban him? It depends on the jurisdiction! Let’s look at what happened in Nevada and what happened in New Jersey.

Nevada recognizes the common-law right that a property owner may exclude anyone from its property for any reason or for no reason. (It is a bit difficult to envision how you exclude someone for no reason. An example might be found in the episode of The Simpsons in which Mr. Burns determined whom he would fire by looking at the security monitors and firing whoever happened to be seen at the time. Homer got a pass because he was wearing Henry Kissinger’s glasses and looked too smart to fire.)

In recent years, this right has been limited by anti-discrimination laws, so you can’t exclude the person where there is a prohibited basis of discrimination, such as race or gender. But card-counting is not a prohibited basis of discrimination, so a casino in Nevada is free to exclude a card counter. Similarly, since winning at poker is not a prohibited basis of discrimination, I think an online site or casino regulated by Nevada law could ban a player for that reason as well.

New Jersey reached a contrary conclusion in the case of the famous card counter Ken Uston. The New Jersey Supreme Court ruled that when property owners open their premises to the general public in the pursuit of their own property interests, they have no right to exclude people unreasonably. So, unlike the online site or casino in Nevada, the online site or casino in New Jersey would have to have some reasonable grounds for banning a player.

The court suggested that it might be reasonable for a casino to ban “the disorderly, the intoxicated, and the repetitive petty offender.” Since those are not characteristics of the winning player any more than they are characteristics of the card counter, I doubt that the online site or casino could ban a player for that reason in New Jersey.

So when someone asks you a legal question, look thoughtful and say, “It depends on the jurisdiction.” It turns out you will often be right. ♠

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