Skill Versus Chance in Gambling Law

In the United States, many states apply a “dominant factor” test to determine whether or not an activity constitutes gambling. The dominant factor refers to the amount of skill versus the amount of chance in the outcome of a game. If the outcomes are based predominantly on chance, then it’s a gambling game. If the outcomes are based predominantly on skill, then it’s NOT a gambling game.

This is of particular interest to poker players, since most poker players see poker as a game of skill. When you’re not using a legalistic definition of gambling, poker certainly qualifies, because gambling just means to wager money. Whether or not skill is the predominant factor in who wins isn’t a factor in the non-legal definition of the word, so poker is definitely a gambling game.

But different judges might have different opinions as to whether or not skill is the predominant factor in poker. For example, over hundreds or thousands of hands, it’s impossible to argue that skill is not the predominant factor. But in the course of a single hand, surely chance is the predominant factor in determining the winner? Anyone who understand the ideas of expected value and short term variance understands that.

But which one of those two situations does a court look at? The answer is that it depends on the state, the judge, and court precedents. It probably also depends on how good the lawyer in question is.

Another thing to keep in mind, when it comes to skill versus chance in poker, is that it’s a rare event when a poker player is arrested or cited for anything. I used to play at an underground cardroom in Dallas, and they busted the owners for running a gambling business. But they also ticketed the players, which is a misdemeanor around here. Misdemeanors don’t sound like a big deal, but they could interfere with your ability to find a job at some point in the future. (Most employers do a criminal background check on prospective employees.)

In other words, most police officers see playing poker as a minor offense not worth bothering with, but not all of them do. And most police officers probably see as running a gambling business, like a cardroom that takes a rake, as something a lot more serious, which in Texas, it really is–because it’s a felony. (I thought about opening my own cardroom in the DFW area, but I decided that the risk level was too high, both legally, and in terms of getting robbed.)

To make things even more complicated, some states don’t even bother with the whole skill versus chance debate. In those states, if you wager something of value, then that’s gambling, and if gambling is illegal, you’ve broken the law.

Here’s a list of states that take whether or not it’s a game of skill into account when deciding whether or not illegal gambling is illegal gambling. Don’t forget that just because you think poker is a game of skill doesn’t automatically make it legal. Cops, courts, district attorneys, and judges all have opinions, too, and they’ll outweigh yours most of the time.

  • Alabama
  • Alaska
  • California
  • Connecticut
  • The District of Columbia
  • Georgia
  • Hawaii
  • Idaho
  • Indiana
  • Kansas
  • Kentucky
  • Maine
  • Massachusetts
  • Michigan
  • Minnesota
  • Mississippi
  • Missouri
  • Nebraska
  • Nevada
  • New Hampshire
  • New Mexico
  • North Carolina
  • North Dakota
  • Ohio
  • Oklahoma
  • Oregon
  • Pennsylvania
  • Rhode Island
  • South Carolina
  • South Dakota
  • Texas 
  • Utah
  • Virginia
  • Washington
  • West Virginia
  • Wisconsin
  • Wyoming
That looks like a long list, and it is, but in other states, the situation isn’t as clearly defined. Also, those legal standards can (and probably will) change. If I’ve made any mistakes putting this list together, feel free to correct me in the comments section–that’s what it’s there for, after all.
The bottom line is that even though poker is considered a game of skill by most people, that doesn’t automatically make it legal. Many states don’t care whether skill is involved in the betting or not–if there’s betting, then it’s illegal. (Some examples include Arizona, Arkansas, Illinois, Iowa, Louisiana, and Maryland.) In other states, the laws are vague regarding the role of skill toward the definition of gambling.
And even in the states where games of skill aren’t considered gambling, poker might or might not legally be considered a game of skill.
So think about it before you get involved in an illegal or underground card game. There are consequences involved with breaking laws, even if they seem silly or unlikely to be enforced.

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