Poker may be a game that takes skill to win, but the chance turn of the card still trumps even a top player’s ability to bluff, read people and master the odds of drawing the high hand, the state appellate court ruled Tuesday.
That means what is arguably America’s most popular card game, played in rec rooms by friends and hyped in celebrity tournaments on cable, is still a violation of state anti-gambling statutes.
In making their unanimous ruling, a three-judge panel of the N.C. Court of Appeals rejected the arguments of Cary poker advocate Howard Fierman, who sought to upend existing case law on poker and establish it as a game where skill — not luck — is paramount over the long haul. North Carolina law makes it a misdemeanor to bet on a game of chance.
The court noted an oral argument by Fierman’s attorney, who compared the talents of a seasoned poker player to those of pro golfer Tiger Woods and the high likelihood he can beat a weekend duffer.
„This analogy, while creative, is false,“ wrote Judge Anne Marie Calabria. „In golf … the players are presented with an equal challenge, with each determining his fortune by his own skill. … Whereas in poker, a skilled player may give himself a statistical advantage but is always subject to defeat at the turn of a card, an instrumentality beyond his control.“
Calabria, with fellow appellate judges Martha Geer and Barbara Jackson in agreement, harkened back to a 1953 state Supreme Court ruling on whether a certain variety of pool was a game of chance where the high court wrote: „The test of character of any kind of game … is not whether it contains an element of chance or an element of skill, but which of these is the dominating element that determines the result of the game.“
„We determine that chance predominates over skill in the game of poker, making that game a game of chance….“ Calabria wrote.
Fierman said he was disappointed but praised the judges for taking his appeal seriously. The ruling did note the skill involved in poker, Fierman said, despite its ultimate finding.
„I think the ruling was written beautifully,“ he said. „I don’t agree with it, but I like the way it was addressed. It’s very nice to live where a private citizen can take a matter that is important to him and it be treated seriously and with respect by the court.“
Because the appellate court ruling was unanimous, Fierman does not have an automatic right of appeal to the state Supreme Court but can ask for one.
Fierman said he would meet with his attorneys and advisers next week but declined to say whether they would discuss an appeal.
The appellate court’s action upholds a May 2005 ruling by Durham County Superior Court Judge Orlando Hudson, who found that North Carolina anti-gambling statutes would make it illegal for Fierman to open a casino-style poker room.
Fierman leased property and established a limited partnership — The Joker Club LLC — but says he never intended to open the club. Instead, he was looking to gain legal standing to make his appeal.