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Feds Insist Poker is Not a Game of Skill

This Wednesday, federal prosecutors asked the Second Circuit to overturn a ruling that poker is a game of skill not regulated by criminal anti-gambling law.

On Aug. 21, 2012, the U.S. District Court for the Eastern District of New York had decided that poker is a game of skill and that´s why running a poker game or business is not subject to federal prosecution under the federal Illegal Gambling Business Act. “Because the poker played on the defendant’s premises is not predominately a game of chance, it is not gambling as defined by the IGBA,” the judge said in his ruling after hearing testimony from poker-playing experts. The Poker Player’s Alliance filed a friend-of-the-court brief related to the debate over whether poker is a skill game. This ruling was expected be another step toward legalizing online poker.

However experts say that doesn’t mean New York racetracks, clubs or other businesses should run out and hire Texas hold ’em dealers just yet.

New York-based attorney Joseph V. DeMarco of DeVore & DeMarco LLP said “It’s a district court ruling; other courts are free to hold otherwise,” “And the ruling says nothing about the reach of state law in this area.”

U.S. District Judge Jack B. Weinstein, who made the ruling above, knew there was a good chance of an appeal. “A reversal of this decision and reinstatement of the jury verdict by the Court of Appeals for the Second Circuit would not violate the defendant’s double jeopardy rights,” the judge added in the ruling.

The appeal came this Wednesday when federal government insisted that playing poker for money is gambling and they asked the Second Circuit to overturn a ruling that poker is a game of skill not regulated by criminal anti-gambling law.

According to Assistant U.S. Attorney Taryn A. Merkl who talked to a panel of judges in Manhattan; a lower court order exempting poker from the Illegal Gambling Business Act defies common sense. Of course it would be naïve to think that federal government cares a bit if poker is a game of luck or skill or fate or whatever. What federal government tries to save are the tools they use to interdict lucrative gambling operations.

“What is gambling? Wagering, placing a bet,” Assistant U.S. Attorney Taryn A. Merkl continued. “Any sensible definition [of gambling] must include the concept of wagering.”

Luckily Neal Katyal of Hogan Lovells, a lawyer involved in the previous ruling, came to the rescue of common sense ““It is not actually, when one looks at all the evidence, a game of chance. Poker is a unique game of skill,” he said. “You will improve. You don’t improve when you’re rolling a roulette wheel or something like that.”

However federal prosecutors stand firm behind the the 43 year old Illegal Gambling Business Act. This act was enacted in 1970 and it lists games like slot machines and roulette wheels in a partial list of prohibited activities. None of the games listed in the act require any skill, unlike poker.

I don´t think federal prosecutors really believe that poker is a game of pure luck. They know, just like any other sensible person that poker is a game of skill in which luck is involved. So why are they appealing to that ruling? Money. And politics. But mostly money. The same prosecutors who argue that poker is a game of luck, have used the 43-year-old IGBA in hundreds of cases and likely made hundreds of millions of dollars in recoveries under the law. Common sense and justice on one hand, hundreds of millions of dollars for the federal government on the other; must have been a really difficult decision for the prosecutors..

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