The Legality of Poker Skill vs Luck

There is some hope that poker will be saved while sports betting and other games may vanish because poker is a skill game. If you're interested in a boring, but elaborate article about this topic, check this out.

I've also read some conflicting reports about the legality of playing skill games for money. It seems that there is some precident for making it legal to wager on games where skill predominates. Whether or not poker can legally be defined as a game of skill is a bit up in the air.

The first thing I heard on this topic was several years ago in an article in Cardplayer magazine. The article talked about a tax case where one poker pro argued that poker was a game of skill. As a result, he wanted to pay regular income tax on the money he made instead of the higher tax that he'd be forced to pay if his earnings were considered gambling winnings. He won the case and was allowed to pay the lesser rate.

But I've also read that poker is legally considered a game of chance. One definition says that in order to be a "game of skill" the elements of skill must predominate over those of chance in determining the outcome. The problem with using the definition on poker is in the short run luck dominates, while in the long run skill dominates. If you play one hand, the outcome is 95% luck, while if you play 100,000 hands the outcome is 95% skill. If you play an infinite number of hands the outcome is 100% skill.

One of the most interesting sections from the super boring article I mentioned above is this:

"I suggest that those interested in improving the law on skill v. chance work on expanding that definition to better specify the principal elements that constitute skill and chance. A weighing mechanism that could be considered by a judge or jury should also be set forth. A few states have passed so-called Chuck E. Cheese laws to allow businesses to legally offer low-cost arcade games with prizes of a low value. That law in Georgia includes a definition of "some skill" that is of interest even though it does not cover the real question, which is what does it take for skill to be predominate. Here is the definition from the Georgia statute:

"[S]ome skill" means any presence of the following factors, alone or in combination with one another:
(1) A learned power of doing a thing competently;
(2) A particular craft, art, ability, strategy, or tactic;
(3) A developed or acquired aptitude or ability;
(4) A coordinated set of actions, including, but not limited to, eye-hand coordination;
(5) Dexterity, fluency, or coordination in the execution of learned physical or mental tasks or both;
(6) Technical proficiency or expertise;
(7) Development or implementation of strategy or tactics in order to achieve a goal; or
(8) Knowledge of the means or methods of accomplishing a task.
The term some skill refers to a particular craft, coordinated effort, art, ability, strategy, or tactic employed by the player to affect in some way the outcome of the game played... If a player can take no action to affect the outcome of the game, the bona fide coin operated amusement machine does not meet the 'some skill' requirement of this Code section."


Clearly using the above criterion poker is a game of skill. But, the main thrust of this poorly written piece is that the precident says that poker is a game of chance. In fact the author goes on to say:

"Consider that on any one hand of poker it cannot seriously be contended that skill outweighs chance. Also, the results of any given session of poker (one night, one tournament, etc.) are not likely to be determined based on the preponderant skill of any given player. Perhaps the result of playing many sessions for a whole year is indicative of skill predominating over chance. But, perhaps not. Poker "player of the year" awards have become popular over the past few years. No one has ever repeated as the winner from one year to the next. Indeed few repeat in the top ten of those lists from one year to the next."

While the author says "few" repeat in the top ten from one year to the next, NONE would repeat if it was determined by chance. Also if you look at the top 50 (or the top 100) instead of the top 10 it's mostly populated by the same names year after year. Is it just chance that the same 50 people manage to make a million dollars a year, every year? Are they the luckiest people in the world? Did they all make it to the end of the rainbow and get a shamrock from a leprechaun that allows them to get luckier than their opponents?

What this fellow doesn't mention is that unlike MVPs in major sports where you're dealing with at most a few hundred players, in poker there are at least 10,000 players in the pool for player of the year. Also note that he says "in the past few years" poker player of the year awards have become popular and no one has won twice. How many years is a few? Ten at the most and probably more like 5. Since when does five trials constitute a significant number? Just because no one has proven themselves to be the best in a given year two years out of 5 we're supposed to believe that this is evidence that poker is not a game of skill? In the many decades of the NFL, only one player has repeated as MVP two years in a row. Does that mean that football is all luck? It must be all luck, after all only one team in NFL history has won all of their games. Surely if it were based on skill, the best team would win all their games every year. What about golf? Maybe Tiger Woods is just the luckiest player. After all he's only won 25% of the tournaments he's entered (which all have less than 150 entrants)in his career. Sure, the top 50 players on the PGA tour (and the cardplayer poker rankings) stay MOSTLY the same from year to year, but the order shuffles around and players come and go from that list. It's clearly all luck.

What about bridge? Or all other card games? Are they all just luck?

How about trading in stocks? Some stocks go up and others go down. Is it just the luckiest people who tend to pick the ones that go up? If that's a skill based process then why hasn't one trader proven himself to be the best two out of the last five years?

When you get down to the core of the issue, the key isn't history or "these people have done this, while these other people have done this". The fact of the matter is that poker is a game of decisions and these decision affect the outcome of the game. Any time you have a game that involves a complex decision making process some people are going to make better decisions using the same information than others. It's this abliltiy that seperates the good players from the bad.

If you want to read more about what I have to say regarding luck vs skill in poker in general you can read my post from July 20th titled "What makes a good poker player."