For those who followed the poker case in New York, U.S. v. DiCristina, in which a 91-year-old federal judge ruled poker was a game of skill immune from federal prosecution under the Illegal Gambling Business Act, your heart was recently broken. In August, the Second District Court of Appeal overturned the 100-plus-page order and ruled under New York law that poker was a game involving skill but predominated by chance because of the randomness of the shuffle and deal of the cards.
The result of the case is essentially a return to the status quo across the country, and absent some act by a state legislature or by Congress, poker will remain a game subject to prosecution under federal gambling laws if it is part of a business enterprise.
The appeals court did note the legislative history of the federal act, which provided comfort language preventing federal law enforcement from storming the corner home game. Those games will need to be policed as they are today by local law enforcement.
In the grand scheme of things at the federal level, this case is a vignette in the broader story about the general dysfunction in Congress, the Department of Justice and the federal courts over exactly what to do with gambling on the Internet and, specifically for Ante Up readers, online poker. With Nevada, New Jersey and Delaware going live for their residents, it’s becoming more apparent that some of these licensees will push the envelope in the quest for players and increased liquidity for their Internet games. Pressure is mounting on California advertising companies to allow Nevada-based licensees to advertise to California citizens.
With the requirements for age verification and geo-location confirmation in the UIGEA, it’s only a matter of time before the DOJ and gaming enforcement officers in Nevada begin sending cease-and-desist letters to try to keep these businesses within their borders. At some point, a legal challenge will be filed as well, asserting a host of federal constitutional arguments, which have evaded review since the passage of UIGEA.
Bringing it full circle as you wait for your spot at your local table, I can only say get comfortable because we are no closer to a legitimate domestic Internet poker industry in the United States than we were before Nevada, New Jersey and Delaware legalized it for their residents.
Those licensees need liquidity for the industry to demonstrate viability, and it’s located in the wallets of players outside their borders in the large states such as New York, Florida, California and Texas. Until they can get into those wallets, the games in these states will be an empty shell of the industry that existed before Black Friday.
— Marc W. Dunbar represents several gaming clients before the Florida Legislature and teaches gambling and parimutuel law at the Florida State’s College of Law. Follow him on Twitter: @FLGamingWatch.