SUMMARY OF THE ARGUMENT in Poker Player's Alliance (PPA) Amicus Curiae Brief:
Poker is an American tradition and a game of skill. Invented in the United States approximately two centuries ago, the game has always been popular. Tens of millions of Americans from all walks of life—including presidents, legislators, jurists, scientists, investors, police officers, physicians, performers, and teachers, to name just a few—regularly play poker.
Poker’s popularity is attributable, in significant part, to the fact that it has low barriers to entry, but is an incredibly rich game—indeed, leading academics have posited that poker’s complexity exceeds that of chess. Poker also taps into our competitive instincts, appealing to the same part of our collective psyche that loves sports. Moreover, poker is a social activity. It brings strangers together and cements bonds among friends; it bridges cultural, political, and socioeconomic gaps; and it provides tremendous entertainment and enrichment to the millions of Americans who play.
Poker’s popularity also stems from the fact that it is a game of skill. Millions of American poker players recognize what the evidence in this case established: that players succeed or fail based on how well they exercise a diverse array of skills. Unlike gambling, where stilted odds and systemic information asymmetries ensure that the players lose and the house wins, poker players have an opportunity, in every single hand, to outplay their opponents in a fair contest of skill.
When Congress enacted the IGBA, it did not target poker. The statute applies only to “gambling businesses,” and its definition of “gambling” does not mention poker games. A close reading of the definition reveals that it is confined to games of chance that do not share poker’s core traits. The IGBA thus includes three categories of activities: (1) organized sports betting, including bookmaking and pool-selling; (2) “pit” games, i.e., slot machines, roulette, and dice games in which the players play against the house; and (3) lotteries, including policy, bolita, and numbers. Each category falls cleanly within the traditional definition of “gambling”: playing games of chance for money. Each category generated substantial revenues for organized crime. And most importantly, for at least two reasons, each category excludes poker.
First, while the gambling activities in the IGBA are games of chance, poker is a contest of skill. As the evidence shows—and as the Government vigorously disputed below but now concedes, Gov’t Br. 14—skill predominates over chance in poker. Crucially, because poker is a peer-to-peer game, even an average poker player can win consistently. That is because a poker player competes only against the other players at his table, and it is the relative skill of these players that determines their results. This fact distinguishes poker from all of the games identified in the IGBA. It distinguishes poker from roulette, where the player competes against the house and the odds are rigged in the house’s favor. It also distinguishes poker from the types of organized sports betting (bookmaking and pool-selling) identified in the IGBA. Every sports bettor who hopes to consistently make money with a bookmaker must make better predictions than a professional oddsmaker—a feat that the typical better can accomplish only by luck, and therefore not consistently. But in poker, the players compete in a fair contest—typically, as in games like Appellee’s—against opponents of comparable skill.
Second, none of the gambling activities identified in the IGBA share poker’s distinct place in American history and culture. That matters because Congress would not have targeted poker without even mentioning it. Moreover, Congress was not interested in every activity that might conceivably be regarded as gambling, but only those activities that provided significant revenues to organized crime. The Government concedes that poker was not such a game. And indeed, poker was and is incapable of being such a game. Poker operators generate revenues through the “rake,” a small fee collected from each pot as compensation for hosting the game. Compared to pit games, where the house takes a losing player’s entire wager, poker rakes generate miniscule revenues. Similarly, organized sports betting and lotteries can generate massive sums by instantaneously collecting wagers from thousands of players without any physical footprint—they are perfect cash cows for organized crime, in a way that poker, which requires that players be physically present for extended periods of time, could not be.
When viewed in light of these distinctions, any superficial similarities between poker and gambling are insufficient to make hosting a poker game a federal felony under the IGBA. The legality of poker is instead a question of state law, and as the Government itself explains, states are actively regulating the game.