Arguing as the devil's advocate, here goes .....

Poker fits the list:

1. Not all the activities on the enumerated list involve house-banked games, see, "pooling", in which the bettors share in a pool, the size of which is determined by the number of buy-ins/entries. The operator merely takes a fee, either a flat entry fee or a percentage-based fee, operates the pool and pays the winner(s).

2. Players seeking to enter a pool may exercise great skill in picking what team, fantasy team draft, et certera to buy as an entry. Skillful selection of an entry or drafting of a fantasy team may significantly affect the entrants chances of winning. Multiple pools may offer betting combinations to hedge outcome risk to the bettors, especially if parleys are pooled.

3. Matchbet operations, like BetFair's P2P model, provide an example of non-poker pooling.

4. So, a prospectively covered activity, like poker business shares a common characteristic with at least one specific example..... the operator offers in effect a paramutual activity, which customers can utilize skillfully or not.

That poker players exercise skill in THEIR selection doesn't save the business from IGBA coverage:

5. Since the business need not take outcome risk from the offered activity to "fit the list", does the element of skill of players in playing make a difference ? No, the Act aims at the operator, not the players, skillful or not. To paraphrase DF from above: "While there is skill involved in the poker game, it's not the operator's skill. the operator takes no active role in the outcome of the event that would cause a poker player to win the prizepool".

6. As a consequence, the specific coverage of poker businesses as such reaches a issue of specific state law, it is not eliminated as a threshold IGBA issue. Skill may matter in looking at a given State's laws.

Unfortunately, I think the devil wins the IGBA argument. I would really like to be proven wrong by the outcome of the motions.

(FWIW, I still like the parallel UIGEA argument that a business is not covered by THAT Act unless it takes outcome risk. Different statutes, different results.)

When is this happenening?

When is the actual court date and when will we know if they are guilty or not?

np, tks for checking. I agree with what you say and maybe if I re-quote it they get it a second time

True it may come down to the matter of deciding which properties are significant but in the form I suggested there are probably few shared by all members. The question of subsets and where to draw the line I considered but that's when it becomes more of an opinion - is that what you mean by sharing some 'sub-properties' and not sharing some affects the significance?

Do you think that it is insufficient to merely show that poker doesn't share a property common to all (assuming it can be done) and that it must be significantly different? Furthermore how does one define 'significantly' similar or dissimilar?

In the UK semi-recent cricket (no ball)match-fixing case against England there were arguments that drew a distinction between a betting agent that can affect the result and one that cannot. In this case Mr. Butt threw no balls of which others he was in contact with abroad bet on the event and profited amongst themselves.

I think this distinction is important and also for future legislation to counter cheating. I know in the UK the Govt. has/is discussing how to address match-fixing in response to this case and in preparation for the Olympics. It may also be relevant w.r.t. to IGBA here as a potential property I think you are describing.

P.S. Thanks to Running Uphill and D_F for explaining what "pool-selling" is specifically.
Quick reply - but if u are referring to the test I described above, first it can only be a common property of the set if all the enumerated members share it.

Secondly, it's not that we must show a prospective activity shares with one example in the enumerated list -that leads to triviality otherwise e.g. Bolita uses balls therefore football is covered

The test is IF there exists a property of the set shared by all and a prospective activity doesn't share it with at least one enumerated member then it can't be intended to be a non-explicit member. I just wrote it in clear logical construction as I see it but as Repulse says the idea is intuitive - surely if they all share a property then a prospect must share it to be a member else it isn't.

Look, I appreciate your post, it is well-written and seeks to resolve the issue through logic ..... as far as that goes. However, don't discount a need to show that poker lacks a relevant characteristic with the list to show it is not included:

Arguments that a poker business is not offering a banked game have been an argument against calling it "gambling" under the IGBA (Someone else can reread the Defendants' arguments, this is my recollection however.) Such argument fails when one of the explicitly listed examples itself share that "exclusory" attribute. Not all the specific examples are "banked games", so that cannot be a basis for exclusion of poker.

I think you've made the test for inclusion one that poker meets for inclusion. Do not forget that ALL the listed examples share a vital attribute with poker, people bet and wager money and win or lose based upon some outcome....... (unlike football or other balls games.).

I understand the argument that PLAYING poker involves a degree of skill in that activity, but so does sports-betting, picking a winning sports pool entry, et cetera. I appreciate the distinction you draw between a betting agent who can or cannot influence the outcome of the underlying activity ..... but think it is swamped by two arguments:

1. The IGBA addresses businesses, not players, so how the outcome of the play is determined is likely irrelevant to the fact that the business provides a service/platform for someone else's betting or wagering activity, polices the games, and pays the winners. This is not a game loser for IGBA defendants, just a requirement that State law be examined re poker, extraterritoriality, et cetera.

2. Was Congress, in addressing 50 different States really drawing a disctinction that would exclude poker, as opposed to other listed non-sports wagering businesses ? (I happen to think not, although the argument has greater legs re the UIGEA language on coverage.)

The judge could rule on the motions any day now. The Trial is set to start April 9th.

From this article:

I agree it should be a jury question. I thought the Defendants' briefs were very persuasive on that point.

But bear in mind, a jury is not going to use a mathematical method for determining if the statute includes poker. It's just going to be given an instruction, probably based on the language of UIGEA and state law (material degree of chance), and asked to determine whether poker is gambling under that definition.

Now, you could have the COURT decide this issue, but the problem there is that there's a line of cases holding poker is gambling under the IGBA. And those precedents count.

Of course the factual question of whether gambling took place, and if so, were the defendants aware gambling was taking place (whether they knew the gambling violated a specific law isn't a prerequisite), will be left to the jury. But that doesn't equate to the jury being asked to decide whether poker by definition is gambling.

The defense likes to raise the issue of golf being subject to chance, which like everything else in life it is, but that doesn't make golf tournaments gambling, because over the 72 holes of a standard tournament, chance (luck) is mostly negated by skill.

But that doesn't mean there couldn't be gambling occurring during on a golf course, players could be wagering more on the result of one shot than the prize for winning a tournament, but that wouldn't make the golf business a gambling business unless it was aware of those side bets, such as having proof they were escrowing those bets in exchange for a percentage.

Since the sites in question not only allowed per single hand betting, they actually fostered it, escrowed it, and made the bulk of their income on raking the placement of these bets (cash games), their knowledge is flagrant and the only question left to the jury is whether they were subject to chance.

Unless they deny shuffling the cards (RNG), then there is essentially nothing for the jury to decide, whether skill prevails over chance in the long run can not be placed into evidence when the prizes (pots) in cash games are awarded based on the short term.

The jury will be instructed to answer simply whether the winner of any of the wagers the defendants had knowledge of were subject to chance, and short of jury nullification, if the glove fits you can't acquit.

As to poker not being similar to any of the other examples of gambling listed in the IGBA, the case they site for precedent is one where they list types of structural changes which can't be made without consideration of disabled people, but the case itself isn't about a structural change it's about a staffing change.

The fact that case wasn't thrown out on summary judgement is the only surprise, it's certainly not precedent setting that the higher court said it should have been. Staffing in no way belonged on a list of structural changes, to say that poker is as different from pool setting as adding stairs would be to changing the hours in which a ticket vendor is on staff is absurd.

The government gave a good response to when then they talked about the requirement of mens rea, saying that just because the manufacturer of a gun tells you it isn't a machine gun doesn't make your ownership of it lawful, the government only needs to prove that you knew it was in your possession.

Taken a step further, if an automatic weapons law listed several types, and years later technology made a new type of gun possible that didn't seem to fit the other types, the government wouldn't be held to prove that your new laser weapon had a mathematical common denominator to the guns on the list, the question becomes had it been available at the time the list was made, would the legislature have included it on the list.

Kitchen table poker games may not be exactly what Congress had in mind when drafting the IGBA, but had they known technology would allow a business to sell poker on a mass scale in the US without so much as setting foot on our land, surely Congress would have included it.

FYP That Congress only learned of the ipoker "threat" after passing the iGBA actually argues against coverage.

.... They could have amended the IGBA, but they did not do so, nor did they amend the Wire Act, the principal statute against unlawful interstate gambling, to cover poker.

Thee were MANY proposals to amend federal laws to cover ipoker, and testimony that federal amendments were needed to provide a federal coverage outlawing ipoker, but none of them passed, except the UIGEA.

I don't think that argument matters, because there's caselaw that says that IGBA covers poker, and because IGBA (like UIGEA) defers to state law to determine what constitutes an illegal gambling business (and New York state caselaw also defines poker as illegal gambling).

Congress passed a statute that says that you aren't allowed to run an illegal gambling business, as a supplement to state anti-gambling laws, many of which define poker as a form of gambling. As a statutory interpretation matter, it's quite wrong to force Congress to amend the statute to specifically cover poker.

The defendants' best hope on this is NOT making a legal argument to a judge, but making an argument to a jury.

Maybe initially I wasn't clear enough and confused the issue by combining what are essentially two parts/issues.

1. Do you (not you per se DQ but in the sense "one") accept for a set enumerated just by examples the following is true?
2. Do you agree that the IGBA set of enumerated games is a set of enumerated examples as in the above set X?

3. Do you agree then that given the above ONLY w.r.t to considering if a candidate element is an implicit member above or not that the above test exclusion applies?

I.e. within just the listed "IGBA list paragraph" you find no issue or logical fallacies in the way that an enumerated list allows one to prove that a candidate is NOT a member?

IMHO this is how the enumerated list should be considered and the Judge make directions to the parties and jury that:

IF the defence can show both a property of the set and that poker fails to share this property then it is not an implicit member of this set. What follows on from that conclusion is another matter. I would say if a candidate is proven to not be an implicit member and would still be considered then why have the IGBA set in the first place (i.e. implies the list is unnecessary and the precedent every word is important, no superfluous words e.t.c applies )

That is all I was trying to say and not even go as far to do the second part - I merely intended to cite the oft mentioned potential properties and that I consider if an agent can affect the "underlying outcome" as a strong contender.

The second issue is assuming you agree with the above then the relevant questions are what properties shared by all members are of the IGBA "gambling set" and does there exist one which poker doesn't share.

@ DQ have replied above about your comment on House-banked games.

Agree if it is used it would be as an instruction by the Judge - I may have expressed it in formal logic construction but it's intuitive form as repulse noted is what would be likely communicated.

I accept that there is precedent that they consider poker under IGBA (at least in partnership with NY State law) but just as the recent opinion letter suggest that the Wire Act only covers sportsbetting and not as wide scope as it's previous interpretation and enforcement then why can't potentially online peer to peer poker be not covered if new evidence or interpretation exists?

This is what i don't understand - if the existing laws already cover it then as you say why is there recent testimony especially in the UIGEA precursor that amendments are needed?

AFAIR didn't the Judge in re Mastercard say that because of lobbying and testimony of federal amendments to expand the scope of the Wire Act beyond sportsbetting it lends weight to the argument that the Wire Act only covers sportsbetting?

I would think as technology and law changes one has to keep up and can't without foresight cover all angles . That is why we have amendments and why there exists mail fraud, wire fraud e.t.c IDK but maybe one of you will know if there is/was an old crime for tampering or 'hacking' a "morse code telegraph line"? The original draftees could never have pre-empted the Internet

Personally, I think showing that is sufficient and that the differences of poker are significant, but it all comes down to how significant is defined. I think being a competitive strategy game is tremendously significant. The law doesn't necessarily agree on this level of significance. I have learned that there is a great divergence between legal precedence and math/logic on these issues so I always defer to the actual legal experts in these discussions, as I shall do this time as their posts seem very good.

I will add that, at least in my more normative world, there is an important difference between the meaning of the phrases "poker involves skill" and "poker is a game of skill". The former might apply to noninteractive one-player games which can be played with varying levels of ability (blackjack) and can indeed be said of most market-based activities such as horse pools, sports betting, etc. But the latter phrase, to me at least, is a statement on the structure of a closed game, something that people get together to play with each other and has a defined beginning and end.

The legal tests seem to focus on whether or not skill of participants is involved, but I like the more specific statement of "poker is a game of skill" as it is more descriptive. In the language of the thread, competitive strategy games are a proper subset of activities which involve skill

At the very least, I think we as a community can pay more attention to the fact that these two phrases are actually quite different, even if we sometimes have to focus on "involving skill" for legal standards.

The Wire Act was different. It has pretty specific language that limits it to sports betting. You can still make an argument that it goes more broadly, but it's a tougher argument.

Most federal gambling statutes just contain some sort of really broad, generic definition of gambling and then leave the details to state law. UIGEA and IGBA are these sorts of statutes. The Wire Act was a rare, more specific federal gambling statute.