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Illegal Gambling

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The Commonwealth of Massachusetts sponsors an assortment of lottery games – Megabucks, Mass Cash, Mega Millions, scratch tickets and the insidious Keno. As interest wanes in a particular lottery, the Massachusetts lottery trots out a new version, advertises it on radio and television, and reaps the bounty. To give the buyers the impression that scratch tickets involve something more than rubbing off squares or circles of dry silver colored paste, the Massachusetts Lottery gives these tickets exciting casino names like “Lucky Dice,” “Blackjack,” “Lucky 7’s,” “One-Eyed Jack,” and “Joker’s Wild.”

These are games of chance only. Commonwealth vs. Plissner, 295 Mass. 457, 463 (1936). The buyer is lucky or unlucky and there is little to nothing he can do to improve his odds. And these are long, long, long odds.

The Commonwealth of Massachusetts is making billions off gaming. Who buys the most lottery tickets? The poor and the gambling addicts. For the poor, a lottery ticket likely represents their only chance at the “good life.” To the gambling addict, a lottery ticket is a momentary distraction from his inner misery. Like a drug dealer-peddling crack on a street corner, the Commonwealth cares nothing at all for the downtrodden it hoodwinks into betting on a long shot, the lonely it turns into Keno zombies transfixed by a dusty television screen, or the afflicted it turns into gambling junkies. At least a Las Vegas casino serves you a free drink, offers entertainment, and may comp you a nice suite. You can lose at craps and still have a good time. For the Commonwealth, all that matters is the profit generated by the lottery.

Legality of Poker in Massachusetts

Playing poker for money – a game largely of skill – remains illegal according to the Massachusetts Attorney General’s Office, even if played for small stakes by a group of friends in someone’s home. See, Massachusetts Attorney General’s Office Advisory. Enjoy a few beers and laughs with your buddies over a card game and you place yourself at risk for criminal prosecution. For simply hosting a “home game,” a person may be charged under G.L. c. 271, §7 with a misdemeanor punishable by fines of up to $1,000.00 and up to one year in the House of Correction or with a felony punishable by fines of up to $3,000.00 and up to three years in state prison.

The Attorney General’s Office is, arguably, incorrect about the legality of poker. It classifies poker as a “lottery” made unlawful by G.L. c. 271, §7 – a very outdated statute. A game is considered an illegal “lottery” if:

  1. Players pay something of value to play the game (including entry fees and charitable donations) or bet money or anything of value during the course of the game; and,
  2. Winning players receive something of value, and
  3. The game is considered a game of chance.

Poker is a Game of Skill

 “Why does this still seem like gambling to you? I mean, why do you think the same five guys make it to the final table of the World Series of Poker EVERY SINGLE YEAR? What, are they the luckiest guys in Las Vegas? It's a skill game, Jo.”

Matt Damon, in “Rounders”

To date, no Massachusetts court has determined whether poker falls within the category of a “lottery” for purposes of applying the state’s archaic anti-gambling laws. Nevertheless, in determining whether a game is properly classified as “a game of chance,” Massachusetts’ courts assess whether chance or skill predominates. If luck, rather than skill, predominates the game is an illegal “lottery.” Commonwealth vs. Lake, 317 Mass. 264 (1944); Commonwealth vs. Plissner, 295 Mass. 457, 463-464 (1936).

Is poker a game of chance? To anyone who plays poker regularly, it is an absurd question. Stuey Ungar won the World Series of Poker in 1980, 1981 and again in 1997. Johnny Chan won the World Series in 1987 and 1988 and finished 2nd in 1989. Dan Harrington won the World Series in 1995 and finished 3rd (out of a field of 839) in 2003 and 4th (out of 2576 entrants) in 2004. Ungar, Chan and Harrington weren’t lucky, they were poker geniuses. So adept was Ungar at putting an opponent on a hand, some players felt as if they were playing with their hole cards face up.

The World Poker Tour, which hosts No-Limit Texas Hold’em poker tournaments all over the world, has turned amateur and professional poker players into celebrities. Gus Hansen, Phil Hellmuth, Phil Ivey, Mike “the mouth” Matusow, Scotty Nguyen, Erik Seidel and Chris "Jesus" Ferguson are now recognized all over globe for their incredible poker skills and consistent winning on the felt – not for how lucky they have been.

While some casual players bemoan or celebrate their “luck,” serious poker players focus on improving their games. They devour books on poker theory, watch poker videos, study books on interpreting body language, and discuss poker with their friends. Indeed, there are today more than 200 books on poker: books on strategy, tells, probabilities, etc. If luck, rather than skill, dictated the outcome, no poker player would squander his time or money on a book.

In Commonwealth vs. Club Caravan, Inc., 30 Mass. App. Ct. 561, 563 (1991), the Massachusetts Appeals Court indirectly conceded poker is a game of skill when it ruled that video poker, despite failing “to utilize most of the skills that make for a good poker player (e.g., the use of bluffing, raising, throwing in a hand), nevertheless employed some element of skill (albeit ‘less than twenty-five percent’) because it rewarded prudent calculations of the probabilities of filling in various ‘dealt’ hands through discards and draws weighed against the known rewards if the draws should be favorable.” The Court in Commonwealth vs. Plissner, 295 Mass. at 463-464 noted that “[t]he mere fact that skill as well as chance may enter into a game, however, does not prevent it from being a lottery.”

In a well reasoned decision the Oregon Supreme Court in State v. Coats, 158 Or. 122, 74 P.2d 1102, 1106 (1938) addressed whether a pinball game constituted an illegal “lottery.”  The Court opined, “If any substantial degree of skill or judgment is involved, it is not a lottery.  Of course, all forms of gambling involve prize, chance, and consideration, but not all forms of gaming are lotteries.  A lottery is a scheme or plan, as distinguished from a game where some substantial element of skill or judgment is involved.   Poker, when played for money, is a gambling game, but, since it involves a substantial element of skill judgment, it cannot reasonably be contended that it is a lottery.” Poker is nothing if not a game of judgment. If a player consistently exercises bad judgment at the table, he’ll hemorrhage money. A very skilled player exercising good judgment will, over time, win money.

Recently, Pennsylvania Judge Thomas A. James, Jr., ruled that Texas Hold’em is a game of skill and, therefore, under Pennsylvania state law not gambling. Judge James opined: “In determining the skill/chance aspect of gambling, some states have relied on a ‘predominance test.’ Under this test, ‘an activity is considered illegal gambling if a person risks something of value on an activity predominately determined by chance for the opportunity to win something of greater value than he or she risked. The Pennsylvania courts appear to be in line with those using the predominance test. Using the predominance test, in conjunction with analyzing skill versus chance using the four prong dominant factor test, it is apparent that skill predominates over chance in Texas Hold’em poker. First, each player has a distinct possibility of exercising skill and has sufficient data available to make an informed judgment. Second, each player has the opportunity to exercise the skill, and they possess the skill (albeit in varying degrees). Third, each player’s skill and efforts sufficiently govern the results. Fourth, the standard skill is known by the players and governs the results. Sill comes with varying degrees of competence, but that is the case with any competition involving skill. The academic studies and the experts generally agree that a player must be skillful to be successful at poker.  At the outset, chance is equally distributed among the players. But the outcome is eventually determined by skill. Successful players must possess intellectual and psychological skills. They must know the rules and the mathematical odds. They must know how to read their opponents’ ‘tells’ and styles. They must know when to hold and fold and raise. They must know how to manage their money.”

A bad player looks at his cards and decides whether to bet or not, with little to no regard for the situation he finds himself in. In contrast, a successful poker player recognizes that poker is a situational game and he analyzes the situation before acting. He is able to assess the strength of his opponent’s hand by: (1) considering his opponent’s position; (2) detecting the opponent’s betting patterns; (3) observing his body language, facial expressions, etc.; and, (4) comparing that information against the community cards, if any. From the available information, a good poker player will make draw reasonable conclusions about the strength of his opponent’s hand and decide whether betting (as well as how much to bet), checking, or folding is his best option. Indeed, while concluding that he is currently behind in the hand, a good poker player will calculate his “outs,” the probability of hitting one or more of those outs, and the “pot odds” his opponent may be offering him. While luck or chance may ultimately determine the outcome of a hand despite a solid player’s accurate calculations, the skill level of a player determines whether he wins a poker tournament or comes out ahead over the course a lengthy cash game. Over many hands, no amount of luck is going to save an unskilled player from the abyss. Skill predominates over chance in poker.

Attorney Mahoney is an accomplished poker player. If you or a loved one is charged with a gaming offense, give him a call at 617-492-0055.

Poker Hosted by Non-Profit Organizations

According to the Massachusetts Attorney General, under Massachusetts law, only a veterans’ organization chartered by the Congress of the United States, a church or religious organization, a fraternal or fraternal benefit society, an educational or charitable organization, a civic or service club and other clubs or organizations operated exclusively for nonprofit purposes may, after acquiring the necessary local and state permits, host a poker tournament, “Las Vegas Night,” or lottery. Although the law requires these charitable institutions to use the proceeds exclusively for educational, charitable, religious, fraternal or civic purposes, or for veterans’ benefits, these institutions must pay the Massachusetts Lottery Commission 5% of the proceeds. Like any organized, ambitious criminal enterprise, the Commonwealth must always get it’s cut.

A non-profit organization considering hosting a “Las Vegas Night,” a poker tournament, or a lottery, Massachusetts heavily regulates these benign civic events and it is very easy to run afoul of the laws governing such events. The Attorney General’s Office provides a summary of how the state’s gambling laws are applied to non-profit sponsored poker tournaments. It may be worthwhile to consult with a lawyer before holding a tournament.

If you or someone you care about is charged with an illegal gaming offense, contact us at 617-492-0055 or use our online contact form to schedule a free in-office consultation.

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