IT’S POKER, NOT GAMBLING

by Roy Cooke

An awful lot of what goes on in the world is about image. The casino industry has over the past decade engaged in a pretty successful image campaign, encouraging the use of the word gaming as opposed to gambling in order to make the business seem more acceptable. Wall Street and the media have pretty much bought into this semantic manipulation, and tend to describe the industry accordingly.

I have often referred to our poker world as being part of the gambling community, in part because poker rooms tend to be located in gambling establishments. In addition, many gamblers also play poker. Furthermore, many poker players treat the game as a gambling experience and approach it from a perspective not significantly different from the way they approach gambling games. The fundamental unit of both poker and gambling is the wager, a sum of money risked with the outcome determined by an event or series of events in which chance is one of the variables. (In most gambling, chance is the only variable.) These are all things poker has in common with gambling.

Regardless of these commonalities, poker is far more different from gambling than it is similar. They are mathematically, pragmatically, historically, culturally, socially, legally, and, in my opinion, morally differentiated. In the past, this has been for the most part a matter of small consequence, a subject for discussion and debate around the bar, perhaps, but not really important. Poker players explained to their wives and mothers that what they did wasn’t really gambling, but a game of skill. Times have changed, however, and the distinction between poker and gambling has become very important to the current and future health of the game.

Internet poker grew by more than 600 percent, both in number of players and volume of money bet, between the end of 2002 and the end of 2003. If poker is lumped with Internet gambling, it now constitutes 10 percent of the online gaming market. After years of sluggish performance and a static supply of players and money, poker is presently enjoying incredible popularity, fueled by the Internet, including Chris Moneymaker’s incredible parlay of $40 on an Internet cardroom site into the World Series of Poker title and its $2.5 million first-place prize. The popularity of TV poker, resulting from producer Steve Lipscomb’s introduction of the lipstick camera to show players’ holecards, has also been a major factor in the current healthy state of poker. The poker world has never seen anything like this, far surpassing the growth in the game when California opened up poker in the early ‘90s. But this growth is gravely threatened.

There are bills pending in the U.S. House and Senate designed to disembowel Internet gambling. One in particular, introduced by Sen. Jon Kyl, R-Ariz., is very close to coming to the floor and enjoys bipartisan support. The U.S. Justice Department, having plenty of excess resources not allocated to the war on terrorism, is using a 1960s-era law that was designed to inhibit illegal bookies to pressure financial institutions and media who do business with Internet gambling sites, and is promising prosecutions. Fearing competition, many stalwarts of the brick-and-mortar “gaming” industry have, in a strange bedfellows kind of partnership, joined with religious and “family values” groups to lobby for restrictions or prohibition of all forms of Internet wagering, including poker.

If poker is defined as substantially different from gambling (as contemplated by existing and proposed laws), the Internet version of the game that has been the engine driving growth can perhaps be insulated from the barrage of present and pending attacks. This approach is somewhat complicated by the reality that some online poker sites and some Internet gambling sites have related ownerships. For them, any regulation of either Internet gambling or poker is a loss, and they may not be happy about the idea of treating the two industries separately. But the best interest of poker is clearly served by legally bifurcating the two, and poker is what matters to me.

Personally, I think that while government regulation of both poker and gambling on the Internet may perhaps be appropriate to protect players from the unscrupulous, prohibition of either is wrong. There is much sentiment in America that government needs to tend to its own business, stick to the big issues like war and health care, and stay the hell out of people’s lives. Both the libertarians of the right and the civil libertarians of the left tend to support that philosophy. But as a member of the poker community, and one associated with an Internet poker site, I believe that if the government elects to choose regulation of wagering activity on the Internet, poker’s best defense is to make the case that it is not the same as gambling and should not be treated by the law in the same way. The most significant consideration is that poker and gambling are indeed different animals.

The biggest distinction between poker and gambling is that in pretty much all gambling, you are playing against the house. This can be particularly problematic when you are playing a computerized game against the people who control the program. If you win, the house loses. If the house wins, you lose. The games favor the house. In poker, the house has no interest in the outcome, and is an impartial provider of services-for-a-fee, a forum for the players to compete equally against each other.

Another major difference between poker and gambling is that the rules of poker accord every player a statistically equal chance to win, but the rules of gambling games all give the house a definite advantage against the player, which over time is inexorable and inevitable. In essence, poker is fair, gambling is not.

The mechanics of poker and gambling are different in a fundamental way. In gambling, you post a wager, after which an event occurs over which you have little or no control, and which determines whether you win or lose. At the point where you risk your money, you are always an underdog. In poker, you receive your cards with an equal chance against your opponents, and then make decisions of whether or not to wager or match wagers made by other players as the hand progresses.

Poker is a game of skill. It is a contest of abilities, more akin to bridge or chess than it is to gambling, in that more-talented players will prevail against less-talented players. Chance can and will affect short-term results, but skill separates winners from losers over time. The claims of a few purported card counters and system players notwithstanding, skill can only mitigate your losses when you gamble, and chance rather than skill is the principal determining factor in your results. A California court said in 1938: “A game is not to be regarded as one of skill merely because that element enters into the result in some degree, or as one of chance solely because chance is a factor in producing the result. The test of the character of a game or scheme as one of chance or skill is, which of these factors is dominant in determining the result.” People v. Settles, 29 Ca App Supp 2d 781, 78 P 2d 274 (Appellate Department, Superior Court, County of Los Angeles, 1938)

There are other arguments that favor poker over gambling that are perhaps intangible but no less real than the ones mentioned above. Poker is a part of the fabric of America, woven into our history from Ulysses S. Grant playing with his fellow junior officers in the Mexican-American War through Harry Truman being interrupted at his poker game to learn that FDR had died and Harry had become president. From Mississippi riverboats to the California Gold Rush to the foxholes of Ardennes, the Chosin Reservoir, and Khe Sang, poker is part of our cultural makeup, our frontier heritage, our individualistic mentality. Presidents Harding, Coolidge, Roosevelt, Eisenhower, Nixon, and Johnson all frequently played poker. In some state capitols, more business of governing has been done at poker tables than in committee.

Beyond being historic, poker much more than gambling is ubiquitous. Kitchen-table poker and weekly poker night are staples of our society. In 1968, a report estimated that 50 million Americans had played some poker. That number has surely grown in the caddy shack, the bowling alley, or after Supreme Court hearings — and of course on the Internet and in hundreds of public cardrooms around the country that didn’t exist back in those days. You find poker in hundreds of movies, in the officers lounge of the Starship Enterprise, in the Travis Magee detective novels. And, of course, it’s all over cable TV.

Poker is democratic. It matters whether you have the money to play, but the game doesn’t care if you’re black, white, Asian, Hispanic, male, female, gay, in a wheelchair, or even an obnoxious jerk. You sit down with your buy-in at the green felt and you have all the rights, privileges, and the same chance to win as everybody else at the table. You’ll never get to play a pickup game against Michael Jordan or a round of golf against Tiger, or tear up the track against Matt Kenseth, but you can plop your buy-in down and take on Doyle Brunson or Howard Lederer. Where else in America can you parlay a $40 buy-in into a shot at $2.5 million with grit, skill, and a little luck? (And it’s not the kind of luck where the odds are rigged against you, I might add.)

Fair. Historic. Ubiquitous. Democratic. It’s mighty hard for gambling to make such a case for itself. But, then again, there’s no reason it should. Poker is, after all, a different thing.

Perhaps the weightiest relevant distinction between poker and gambling is the legal recognition by many jurisdictions that they are in fact different. A large majority of states prohibit gambling, but at least 37 states have some form of legal poker. California, for example, prohibits games played against the house, but permits poker. Florida has a provision against gambling in its state constitution, but has by affirmative act of its legislature distinguished and permitted poker on a regulated basis. Other examples abound.

I fervently hope the Feds will not further pursue restriction of either gambling or poker on the Internet. I hope the lobbyists who are making the case on behalf of the online casinos prevail and manage to shoot the whole thing down. But you can’t take hopes to the bank. To wait for the shoe to drop would be foolhardy and naive. To preserve the flow of new players and new money into poker rooms around the country, the industry must band together and properly define itself as something different and apart from the gambling business.

And aside from the legal issues, it wouldn’t hurt our image a bit.