by Joop Wassink
At the end of last week, various media wrote articles entitled: ‘District Court: Poker is not a game of chance’, in response to a judgment of the Amsterdam District Court dated 23 January 2014. According to one of these media, the lawyer of the acquitted suspects, Mr Plasman, LL.M., said that if the Public Prosecution Service does not institute an appeal now or loses an appeal, it means that everyone in the Netherlands may organise or participate in poker tournaments. This corresponds to some degree to his statement:
“Now that two courts have acquitted the defendants and the Public Prosecution Service has withdrawn the appeal against the acquittal by the Hague court, this leads to the situation that poker tournaments are also legal without a permit.”
He clarified this statement in more detail in an interview with the editors of Pokernews.nl. In my opinion, the statements by Mr Plasman and the headlines of various media cannot be accepted as correct, which I wish to explain in more detail.
District Court: Poker is not a game of chance
After studying the judgment, I cannot conclude that the District Court ruled that poker is not a game of chance, as reported by the media in line with the statement made by Mr Plasman. I do agree with Mr Plasman that the Dutch Betting and Gaming Act includes the framework and that this Act does not stipulate in concrete terms which games are and are not regarded as games of chance. It must concern a game in which people compete for prizes and/or premiums, where the winners are appointed by means of chance determination that the participants can generally not influence.
The Public Prosecution Service has summoned suspects to appear in court on account of their offering of such a game without a permit under the Betting and Gaming Act. These are criminal proceedings in which it is up to the Public Prosecution Service to prove the charges. Apparently, it has failed to do so. However, the District Court did not rule that poker is not a game of chance, but only that it cannot be legally and convincingly proved that there was a game of chance. The District Court took all relevant facts and circumstances of the specific case (including the absence of certain information) into account.
I can only conclude that this is a very casuistic judgment, which cannot be applied to any random poker tournament. It can be concluded from the judgment that things could have gone the other way entirely, as is clarified below.
District Court, legal ground 3.4.5
“As a result, there was a selection between (predominantly) less experienced players who dropped out and (predominantly) experienced players who went through to the final round (the final table), which is supported by the observation of [fellow suspect B] and others referred to in the file that it were often the same persons who reached the final table. In that sense, it is likely that experienced players could to an important and even large degree undo the effect of the chance determination referred to (the ‘chance generator’) on the instructions of prize winners. The District Court is unable to establish to which exact degree this took place. In any case, it cannot follow from the foregoing that the chance generator had a dominant influence. The public prosecutor has not put forward any arguments against the foregoing that lead to any other conclusion.”
All I can read here is that the public prosecutor has provided insufficient evidence. Because of the evidence to the contrary that was present (i.e. the same persons often reached the final table), the District Court ruled that in the game played here the skilful players could undo the effect of chance determination on the instructions of prize winners to an important and even large degree. This therefore does not lead to the judgment that it is not a game of chance, but merely that there is insufficient legal and convincing evidence available.
“In any event, the District Court must only answer the question that pertains to the game result (the appointment of winners). Since all players of the final table in this tournament received a prize, any influence exerted by the players of that table does not make any difference in the assessment of the accusation.”
The specific circumstances of the tournament are also (rightly) included in the judgment. The judgment could have been entirely different if persons who were eliminated before reaching the final table had also won prizes. And how about the frequently used construction where reaching the final table is not a guarantee for a prize, because only the five best players win a prize in the end.
“That is why, for the charges in this case to be proved, it must be established that the majority of the players tended to play the game during the period in question without the effort, concentration and experience necessary for the skilfulness to undo the effect of chance determination to a large degree. This cannot follow from the file in this case. (…) The above leads to the conclusion that the charges cannot be proved, which means that the suspect must be acquitted.”
It is impossible to get a clearer picture of the judgment. The public prosecutor had an evidentiary problem and therefore it could not be proved that the majority of the players could not influence the game result to a large degree. Again, therefore no ruling that states that poker is not a game of chance, but a judgment focused on the case about the lack of evidence. But what if it had become evident (by means of witness statements for example) that the majority of the players did have little experience and insight into the game?
Conclusion and recommendations
The above shows that especially the facts and circumstances of the concrete case and the presence of evidence are decisive for the outcome of such proceedings. The success of Mr Plasman in this case is a fact and the substantiation of the District Court is clear, but assuming that a same judgment will be rendered in another case is a game of chance, which Mr Plasman also rightly noted. What matters is how the game in question is played, how the tournament is organised and what the level of the various players is. I would therefore like to warn potential organisers in case they wish to rely on the principle of equality. That will not hold water if the cases are not similar with minimum differences.
In addition to the criminal law aspects, there is another problem when offering poker games, i.e. the administrative law aspects of the case. Just about all permits that are granted can be withdrawn at the time that it is assumed that the permit holder has committed an offence. There does not need to be an irrevocable conviction, a mere suspicion (for example a police report and information from the Criminal Intelligence Unit) is enough to justify withdrawal. The question is therefore whether this is a risk worth running, since it is possible that all permits have already been withdrawn irrevocably, at the time that there is not yet any irrevocable judgment in the criminal proceedings.
Please do not hesitate to contact us if you have any further questions with regard to the above.
J. Wassink, LL.M.[i]
Picture Copyright: Flickr.
[i] J. Wassink is a lawyer of the Vissers Advocatuur firm in ’s-Hertogenbosch and specialises, among other things, in the Betting and Gaming Act.