The house has the edge in the courtroom, too



The old casino adage “you don’t bet against the house” is one we should keep in mind when considering any kind of gambling. A recent case of mine reminds of just how true this can be not just at the table where the house advantage is widely known, but also in the courtroom.

It seems a group of blackjack players who frequented the Seminole Hard Rock in Tampa thought they had figured a way to beat the house. Mind you their manner of trying to beat a casino was a little unconventional, but as I will explain it’s worth keeping in mind that no matter how creative your argument, chances are the house will win in the end.

Before the story a little history refresher is in order for those not familiar with the gaming compact between Florida and the Seminole Tribe. The Seminoles began dealing blackjack in 2007 after executing a gaming compact with then-Florida Gov. Charlie Crist. Some of my clients and some state legislators felt the compact violated Florida’s Constitution and the federal Indian Gaming Regulatory Act and were able to convince the Florida Supreme Court the same.

The court liked our arguments and found the provisions authorizing blackjack and other table games unconstitutional. This ruling created a legal limbo for the blackjack offered by the Seminole Tribe for about 16 months until a new compact was authorized by the Florida Legislature and signed by Crist.

During the interim period between compacts, the Seminoles kept dealing blackjack and these players alleged they were regular losers at the tables. Not content with their beatings, these players found a creative trial lawyer and filed a federal lawsuit to recover their losses arguing the blackjack during this interim period was illegal, and using an arcane statute, they attempted to recover their gambling losses.

The interesting hook on the story was that these alleged blackjack losers didn’t try to recover from the casino that had their money. They knew suing an Indian tribe would go nowhere due to sovereign immunity afforded Indian tribes under the U.S. Constitution. Instead they sought to recover from the billboard company that advertised the blackjack, the manufacturer of the chips used during the blackjack game and from the manufacturer of the software program used to track players for reward purposes. The statute they used to pursue these entities purportedly created joint and several liabilities for gambling losses for anyone directly or indirectly involved in an illegal gambling transaction, including those involved in the promotion, management or conduct of the activity.

Unfortunately for these creative but challenged blackjack players, the court did not agree with their cause of action. Finding in favor of my client and the other alleged co-conspirators, the court pointed out that no such cause of action existed. In fact, the Florida Legislature, ironically which was part of creating the alleged period of “illegal blackjack” between the voided and effectuated compacts, repealed the ability to seek such a remedy in 1974. The result for these players was the privilege of losing at the blackjack tables, disclosing the losses publicly in federal court and then being told those losses will stick because their lawyer sought a remedy under a statute that had been repealed for roughly 36 years.

The plaintiffs in this case were not unlike the scores of people who try to skip out on casino markers thinking if they run far enough a court will relieve a gambling debt or refund a gambling loss. Courts across the land even in the most conservative of states may be very aggressive against those involved in illegal gambling but they take a different tone when it comes to folks trying to get out from under their legally incurred gambling losses. I have seen cases against cruise ships, tribal and regulated casinos, credit-card companies, slot-machine companies, and now a chip manufacturer and a billboard company.

The central rule from all of these cases is the same: Don’t bet against the house! If you sit at a table and lose, don’t expect a judge or a jury to have sympathy for your losses and bad play; settle your debts and next time don’t play or play better keeping in mind the house always has the upper hand, and in most cases the better lawyers!

— Marc W. Dunbar is a shareholder with Tallahassee law firm Pennington, Moore, Wilkinson, Bell & Dunbar, P.A. He represents several gaming clients before the Florida Legislature and teaches gambling and parimutuel law at the Florida State University College of Law.

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