October 01, 2010
The poker world is abuzz with news of PokerStars abrupt decision yesterday to block residents of Washington state from playing for "real money" in PokerStars tournaments and cash games (hat tip to the first source to reach me with the news via Twitter, the esteemed folks at Pokerati.com). The ban includes players with a Washington address on record regardless of where they are playing, as well as players physically present in Washington state regardless of state of residence. The ban also prevents those same players from participating in any play money activity with PokerStars if any cash prize is awarded for such play. According to a PokerStars FAQ page, FPPs, tournament tickets/dollars, and similar earned bonuses will be converted to cash equivalents, and players will be able to withdraw or transfer money in their accounts.
In its official statement, PokerStars pinned the blame for its decision squarely on last week's Rousso decision by the Washington supreme court which rejected a constitutional commerce clause challenge to the validity of the 2006 statutory ban on all online gambling in the state:
PokerStars today announced that it would cease providing real-money poker to residents of Washington State. To date, PokerStars has operated in Washington on the basis of legal opinions where the central advice was that the state could not constitutionally regulate Internet poker, or at least could not discriminate in favor of local cardrooms and against online sites. Last week, however, the Washington Supreme Court for the first time rejected that position and upheld the state’s Internet gaming prohibition.
In light of this decision, following extensive consultation with our legal advisors, we believe that the right course of action is to now block real money play by Washington residents on the PokerStars.com site. This policy will remain in effect until the law changes or subsequent legal challenges succeed. ...
The timing of the PokerStars pullout from the Washington online poker market is rather curious. Although PokerStars wants to claim that their decision to block Washington residents was required by the recent Washington supreme court decision, the actual timeline of events shows that dog won't hunt:
- Online poker in Washington was likely illegal prior to the legislature passing the explicit online gambling ban.
- Online poker in Washington was unquestionably illegal after the legislature passed the explicit online gambling ban which became effective in June 2006.
- Online poker in Washington remained illegal after the Washington district court upheld the statutory online gambling ban.
- Online poker in Washington remained illegal after the Washington court of appeals upheld the statutory online gambling ban.
- Online poker in Washington remains illegal today because of the Washington supreme court ruling upholding the statutory online gambling ban.
- Online poker in Washington will remain illegal even if appealed to the U.S. Supreme Court, unless and until the U.S. Supreme Court grants certiorari and reverses the Washington supreme court decision (two highly improbable events).
So, why would PokerStars choose to ban Washington residents now, rather than four years ago? The smart money is on HR2267, the federal online gambling bill which only passed out of committee in the House of Representatives in late July.** HR2267 includes a so-called "bad actors" provision which would preclude from any federal online gambling licensing any current site that has operated in violation of state or federal laws. Now, I happen to think that current online poker sites are in fact violating gambling laws beyond Washington's statewide ban, but that's a discussion for an upcoming post.* In any event, four years ago, the status quo of no federal regulation coupled with benign neglect by state governments enabled online poker sites to continue operations with little risk of criminal liability. In fact, over that timeframe, PokerStars and Full Tilt have transformed themselves from marginal bit players into the two largest players in the U.S. market. So, it was clearly in PokerStars' business interests to pretend they were in full compliance with state and federal gaming laws, including Washington's outright ban on online gambling.
Times change, however, and federal licensing is now moving closer to reality. Yet federal licensing seems likely to occur only with the support of current brick and mortar gaming giants (Harrah's, MGM, and various tribal casino interests) who will demand a "bad actors" prohibition. So, PokerStars' current business interests require it to pay more than lip service to the legality of its operations. Thus, purely as a business decision, PokerStars can withdraw now from the Washington market using the Rousso decision as cover for its change in policy, at the relatively minor cost of sacrificing a small number of players and associated revenues, in exchange for the appearance of complying with state gambling laws and a better shot at avoiding a "bad actors" designation if federal licensing ever becomes a reality. Missing out on Washington state revenues for a few months or years is a small price to pay for a better shot at a lucrative federal license down the road, which may be the only way for PokerStars to maintain its dominant position in the lucrative U.S. market.
As always in poker, it's all about the money.
* I have a couple of posts coming over the weekend related to two issues: a) Was the PPA stupid to bring the Rousso case?, and b) Does the Rousso decision really change anything in terms of whether online poker is legal? In the meantime, there is some interesting reading in the 2+2 forums on the PokerStars withdrawal from the Washington market, HERE, HERE, and HERE. It's interesting to note how many Washington poker players apparently had no clue about the statutory ban, the Rousso case, or the Washington supreme court decision.
** EDIT (1 Oct. 2010): The original text stated HR2267 passed the House, instead of merely the House Financial Services Committee. As reader Local Rock pointed out in the comments (and as I noted in an earlier post about the bill), there is a significant difference between passing out of committee and passing the entire House.