Contracts and Poker: Waiving Rights

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In a previous column (Card Player Feb. 9, 2022), I queried whether Scotty Nguyen’s famous line “All you can eat, baby,” should pass muster under Tournament Directors Association Rule 3, which states in part: “It is the responsibility of players to make their intentions clear: using non-standard terms or gestures is at player’s risk and may result in a ruling other than what the player intended.”

A faithful reader then asked, “If Scotty pushed out a chip as he said it, and the other player said he had no idea that Scotty meant all-in, would the TD rule against Scotty? Furthermore, would it be considered angle-shooting if the player knew what Scotty meant?”

These are great questions. Let’s take the second one first. The main point of that column was that in poker, as in contract law, statements and gestures are generally interpreted the way a reasonable person would understand them – it doesn’t matter what the speaker or gesturer intended.

Similarly, it usually does not matter what the other person knew. I don’t think it is angle-shooting to ask that the rules be enforced even if you knew what the person meant when he violated the rule.

This concept worked against me recently. With blinds at 100-200, a player raised to 400. I called the 400. Another player dropped several 100 chips in front of him, and as the fifth one hit the felt, he said, “Whoops” and quickly pulled it back, leaving 400. The dealer announced, “Call.”

The original raiser then said, “Wait a minute, that’s a raise! He put out 500, which is half of an additional bet, so he should be forced to complete the minraise.”

The player argued that he had dropped the fifth chip by accident and had not intended to raise. The TD was called, and he ruled that it was a raise even though the player had not intended to raise, and even though everyone knew he had not intended to raise.

I think that was the correct ruling according to TDA Rule 43, which states in part, “A player who raises 50% or more of the largest prior bet but less than a minimum raise must make a full minimum raise.”

Of course, the original bettor then put out a big four-bet and everyone had to fold.
Does that mean that the rule could be called on Scotty or someone else using the expression even though we all know what was meant? I don’t think it follows.

There is an important concept in contracts called waiver, and the concept sometimes comes up in the poker rules. Waiver is defined as a knowing relinquishment of a right. The TD may have the right to rule that “All you can eat, baby,” does not have the effect of saying, “All-in,” but by failing to enforce that rule in the past, he has led players to believe that they can use the term with no untoward consequences. It would be unfair to suddenly rule otherwise.

It is like when your car payments are due on the first of the month. You routinely pay a few days late, and after several months the lender claims that since you did not pay on the first, the entire principal balance is due and when you don’t pay it, they repossess your car. Sound unfair? Sure. They had a right to take that action the first time you did not pay on the first, but when you did so repeatedly with no consequences, you were lulled into thinking nothing would happen. A court is likely to say the lender waived their rights.

Of course, a waiver does not change the contract or the rule, and the waiver can be retracted. But taking it back requires notice so that you are aware that you can’t do it any more with impunity. Your lender might send you a notice saying, “We may have accepted late payments in the past. But from now on we will enforce the letter of the contract. If you pay after the first, we may demand the entire balance of your loan.”

Similarly, the TD might say, “Look, in the past, we have allowed certain nonstandard language, but no more. From now on, if you don’t make your actions clear using standard betting terms, it may be ruled to be something other than what you intended.” A sign to that effect where players sign up would ensure that they have notice. Again, it doesn’t matter whether they actually saw the notice, as long as a reasonable person would have seen it.

As another example, a card room I used to play at was very tolerant of players violating Rule 61: Over-Betting Expecting Change. If the blinds were 300-600, a player would frequently push out a 1,000 chip and a 100 chip, expecting to get 500 change. Since this waiver of the rules was so well-established, it would not be fair for a dealer to suddenly say, “According to the rules, that is a raise, so put out another 100 to complete it.” Instead, players should get a warning, and the house should publicize that it has begun to enforce that rule.

So if you are ever on the losing side of enforcement of a rule, try saying, “Hey, wait a minute, you never enforced that rule before. It isn’t fair to start now without giving me a warning.” It is worth a shot. ♠

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