Weinstein declared that since poker did not fall under the definition of gambling provided by the Illegal Gambling Business Act (IGBA), the case against a defendant earlier convicted of violating the IGBA by hosting Texas Hold’em games should be tossed out.
The lengthy decision accompanying Weinstein’s ruling includes a great deal of expert testimony demonstrating the skill component in poker, as well as a thorough review of other state and federal decisions affecting the legal status of our favorite card game.
The ruling will still need to survive an appeal. Also, it only concerns the IGBA, and there remain other federal and state laws in which poker still falls under the heading of illegal gambling.
That said, Judge Weinstein’s ruling nonetheless represents the first instance of a federal judge describing poker as a skill game.
Thus will U.S. v Dicristina likely become a significant reference point for future cases in which the luck-vs.-skill argument in poker arises.
“There's Luck in All Sports”
The day after the ruling, Cowherd took to his radio show to offer his thoughts about it. He did so despite his own ambivalence about poker.
“I don’t play poker,” began Cowherd.
“I’m not particularly fond of playing poker,” he added, though admitted he respected the game “without being a consumer of it.”
One lucky pass can make a career.
After summarizing the ruling, Cowherd said he thought it was great that the skill component in poker was finally being recognized in this manner.
He then turned to the sports world to illustrate how many games assumed to reward skill also involve a significant element of chance.
“There’s luck in all sports,” explained Cowherd, pointing out how last year’s NFL season ended with certain teams (Houston, New England) suffering end-of-year injuries that probably helped the New York Giants -- whose players remained healthy -- emerge as the Super Bowl winner.
“Right before the Super Bowl, Gronk rips up his ankle,” pointed out Cowherd, referring to the Patriots’ All-Pro tight end, Rob Gronkowski.
“Never had an injury problem -- high school, college, pro,” explained Cowherd, but the ill-timing of the tight end’s injury last year was “bad luck” that significantly affected his team’s chances of winning.
Cowherd went on to list other examples of luck in football, including Doug Flutie’s famous last-second, game-winning pass for Boston College versus Miami way back in 1984 that “made his career.”
“Was Doug Flutie’s ‘Hail Mary’ skill?” asked Cowherd somewhat rhetorically, knowing that most who’ve seen the play would have to concede that luck played a significant role.
What is Luck? And What is Skill?
Cowherd’s question about Flutie’s pass points to a larger truth -- namely, that there are a lot of examples of events in sports that get interpreted as not involving luck when in fact they very much do.
The 2003 bestseller Moneyball by Michael Lewis about the Oakland A’s and their unique approach to evaluating baseball talent provides numerous examples that support Cowherd’s argument that luck plays a role in sports.
Moneyball: Blew the doors off baseball skill.
Some are perhaps less obvious than a key player suffering an injury or a successful “Hail Mary” pass.
To share one example, near the end of Moneyball there appears a discussion of the “sabermetrician” Voros McCracken and his investigation into what exactly makes great pitchers successful.
(A sabermetrician is someone who performs deep analysis of baseball statistics in order to reveal objective truths about the game.)
Specifically, McCracken was interested in proving or disproving the assumption that great pitchers “coaxed hitters into hitting the ball in a way that was less likely to become a hit.”
McCracken knew pitchers could be held responsible for strikeouts, walks, and home runs.
But what about balls put into play? How much were pitchers really responsible for whether those balls resulted in outs or hits?
A Question of Control
To look at the question another way, McCracken was trying to distinguish between luck and skill when it came to pitching.
Following a thorough analysis of hundreds of pitchers and the results of balls put in play against them, McCracken determined that pitchers had virtually nothing to do with the frequency of hits per balls in play.
In other words, what often had been regarded as a measure of skill when it came to pitching was in fact completely out of the pitcher’s control.
Greg Maddux: The Mike Matusow of baseball. (Photo: SI).
McCracken showed how with all pitchers, strikeouts, walks, and home runs allowed tended to stay the same from year to year, but hits per balls put in play varied greatly, and not according to the pitcher’s perceived ability.
For example, the great pitcher Greg Maddux went from a 2.22 ERA in 1998 to a 3.57 ERA in 1999.
Maddux gave up considerably more hits in 1999, but his strikeouts, walks and home runs given up -- the things he could control -- stayed the same.
In fact, as McCracken showed, Maddux gave up more hits per balls put in play than any other pitcher in 1999.
To put it in poker terms, Maddux was “running bad.”
He was pitching much like he always did, but having more batters get lucky and “hit ’em where they ain’t” (to use an old baseball adage).
Moneyball contains lots of other interesting investigations into questions about luck and skill in baseball.
And like Lewis’ earlier book Liar’s Poker (about bond traders on Wall Street) it’s a title that should interest poker players in many ways.
Luck + Skill = Life
So luck is part of poker, and it’s part of other sports, too.
But just as most would agree skill ultimately predominates in football and baseball, there’s ample evidence to support Judge Weinstein’s ruling that skill outweighs chance in poker, too.
It’s a skill game, Jo.
“I’ve said this before about sports gambling and poker,” said Cowherd as he concluded his commentary on the ruling, adding that he doesn’t “understand the stigma” often assigned to both in popular culture.
“There’s a reason a handful of people” consistently do well at both, he argued, making a point that might remind some of Mike McDermott’s “It’s a skill game, Jo” argument in Rounders.
“If it was luck, you wouldn’t know their names," said Cowherd.
"But you know Phil Ivey and you know Phil Hellmuth, because they end up regularly on the final tables at the World Series of Poker.
"So, finally, somebody gets it right.”
Those of us who play poker well know both luck and skill matter. Most of us also know how often luck and skill get confused for one another.
Even seasoned players can be influenced by results to mistake a bad play for a good one, if a fortunate river card falls. Or a good play for a bad one, if an opponent hits his two-outer.
However, we also know it’s that fascinating mixture of luck and skill that helps make poker especially interesting and fun.
Like sports, and many other aspects of life, too. And thus worth defending.
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