‘Game Of Skill’ Ruling Has Life Beyond NY Reversal

August 08, 2013


The Second Circuit’s reversal of a federal judge who held that poker is a game of skill, not illegal gambling, was based narrowly in New York statutory language and may do little to blunt the influence of the provocative opinion as other state courts grapple with gambling prosecutions and lawmakers mull gaming policy, legal experts say.

The “game of skill” case involves Lawrence DiCristina of Staten Island, N.Y., who was convicted by a federal jury of conspiracy and illegal gambling in July 2012 under the Illegal Gambling Business Act after he was charged with running an illegal card game.

But after hearing testimony from poker and statistics experts, U.S. District Judge Jack Weinstein set aside the verdict, saying in a headline-grabbing opinion that because “the poker played on the defendant’s premises is not predominately a game of chance, it is not gambling.”

Judge Weinstein — known as a jurist “who is not afraid to issue a landmark ruling,” according to DeVore & DeMarco LLP complex litigation specialist Joseph V. DeMarco — drew an immediate vow from prosecutors that his opinion would be challenged.

On Tuesday, prosecutors prevailed against DiCristina as the Second Circuit, in a decision that bypassed questions of skill and luck, reinstated the verdict and ordered the defendant to be sentenced on conspiracy and fraud counts.

“The language of the statute is clear,” the Second Circuit said, noting that New York law defines gambling fairly broadly as games that involve a material degree of chance and allows for federal claims.

The appeals court also said the “game of skill” argument put forth by the defendant “improperly conflates the important distinction between gambling, which is not prohibited by the IGBA, and operating a gambling business.”

In fact, the Second Circuit went out of its way to say that the “question of whether skill or chance predominates in poker is inapposite to this appeal.”

About 25 states, for example, have laws requiring that luck “predominate” and not just exist in a material degree for a game to be considered gambling.

State lawmakers, too, could take cues from the “game of skill” ruling, according to Daniels College of Business risk analysis and gaming professor, Robert Hannum.

“Right now it’s a gray, nebulous area as you go from state to state,” Hannum said. “But I’m convinced that poker should be characterized as a game of skill.”