Contracts and Poker: A Primer On Defamation

I’m always interested in rules issues that pop up during the WSOP, but this year the big news is more dramatic – a cheating scandal. What I mean to say, so that I won’t be accused of defamation, as will be explained shortly, is a scandal involving alleged cheating.

If you’ve been watching the PokerGO live coverage of the series, you probably know the facts by now. During the $250,000 super high roller event, Czech player Martin Kabrhel, was being particularly obnoxious at the table. A 30-second clock was in use, and he almost always took the full 30 seconds to act. He constantly chatted with his opponents, and frequently asked for chip counts.

Being obnoxious is not against the rules. But he also engaged in some strange behaviors, staring closely at opponents’ cards that were face down and sometimes standing to get a better view of cards across the table. This led to the floor adopting a special rule that players could not stand during the play of a hand they were involved in. Kabrhel even violated that rule during the broadcast of the final table, claiming he was not aware of it or why it was imposed.

The reason it was imposed was that there were allegations that he had marked cards by manipulating them with his hands, and the close view enabled him to better see those markings. The WSOP announced that it would investigate the allegations.

In a Twitter post, fellow high-stakes pro Andrew Robl stated, “I’ve seen him mark cards in every tournament I’ve ever played with him.” Robl followed up with a particularly amusing post that included a photo of Kabrhel staring intently at the hand of Brandon Steven with the caption: “Reading his card markings or is he just using his x-ray vision superpower?”

The next day, Kabrhel responded. “I have decided to take legal action against Andrew Robl.”

He has apparently retained counsel and claims he will sue Robl and a number of other prominent players.

Let’s examine what would be involved in such a legal action. The claim would probably be for defamation, which is a civil claim that the defendant made a false statement about the plaintiff that financially injured them by damaging their reputation. If the statement is oral, the claim is called slander and if it is written, the claim is called libel. Defamation is a state law claim, so the law may be slightly different depending on where the claim is brought.

In Nevada, the state Supreme Court has stated that, “A defamation claim requires demonstrating (1) a false and defamatory statement of fact by the defendant concerning the plaintiff; (2) an unprivileged publication to a third person; (3) fault, amounting to at least negligence; and (4) actual or presumed damages.” The plaintiff has the burden of proving these elements by “a preponderance of the evidence,” which is a lot easier than the criminal burden of “beyond a reasonable doubt.”

To prove the first element, the plaintiff would have to show that the statement was made as a fact and not as an opinion. That is why one might want to be careful to say that a person “allegedly cheated” or “might have been cheating” so that they are relating an opinion and not stating a fact.

In some contexts, the defendant might be able to show that the statement was privileged. For example, reporting a crime to the police might be privileged.

The third element is probably the most difficult to prove – that the statement was made negligently or intentionally. If the plaintiff is a public figure, the burden may be higher, with the plaintiff having to prove that the statement was made with “actual malice.” If entertainers and sports figures can be public figures, perhaps poker players can be, too.

Finally, the plaintiff has to prove they were financially damaged. However, some false statements are regarded as so harmful that actual damages don’t have to be proven. One example is falsely stating that the plaintiff committed a crime. And in Nevada, it is illegal “to cheat at any gambling game.”

It is hard to bring a successful defamation claim. The most notorious claim in the poker world involved Mike Postle, who was accused of cheating at the Stones Gambling Hall in California by intercepting a livestream broadcast. The allegations were based on circumstantial evidence, including hand histories and his table behavior with his phone.

The litigation began with players suing Postle and the casino to recover their losses. The claims against Postle were dismissed because the court stated that “California has a strong, broad, and long-standing public policy against judicial resolution of civil disputes arising out of gambling contracts or transactions.”

That makes no sense to me, since that policy came from a time when gambling was illegal, so a person bringing such a suit had committed an illegal act. That is no longer the case when a person is playing poker in a casino where it is legal.

As part of the suit, Veronica Brill, who first voiced concerns about Postle, sued the casino for defamation because after its investigation of Postle, the casino had stated, “Earlier this year an accusation was made that a player was cheating in our game. We conducted a full investigation & found no evidence that cheating had occurred, Stones Live stream remains a secure poker streaming platform. The recent allegations are completely fabricated.”

Brill claimed that the statement that “the recent allegations are completely fabricated,” libeled her, but the court said that since so many people had made the allegations, she could not prove that the statement concerned her.

Postle then sued a dozen people and entities who had said that he was cheating. The first sign of trouble for Postle was when his attorneys declined to further represent him. He then dropped the defamation suit, which was followed by some of the people he had sued bringing “Anti-SLAPP” suits against him to recover the costs of their defense. An Anti-SLAPP suit is designed to prevent frivolous litigation. After successful claims by two people he had sued, Postle sought bankruptcy protection, which apparently ended the litigation.

We will keep an ear out for any news about the WSOP investigation and any lawsuits that result from this situation. ♠

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