Breaking Wind in the Capital Pursuit

Some days, it counts as a win if you don't die or shit your pants.

I'm calling today a win.

Over the past few years, I have had the opportunity to meet a good number of good folks who happen to love poker. I have enjoyed sharing some food, cards, and hijinks with a group of poker bloggers at the annual Winter Poker Blogger Tour (WPBT) held each December in Vegas. However, a subset of these fellow degenerates—loosely based in parts East—gather each year in G-Vegas (Greenville, South Carolina) for an event known as "Mastodon", a primal celebration of man's (and woman's) refusal to evolve. Mastodon has always been alternately alluring and frightening (check out the official invite/warning video), but this year, I figured it was high time I got high in South Carolina.

Part of this year's Mastodon festivities include an optional spin through one of the road races on tap for the Spinx Run Fest. Now I've been a runner since high school, but I gave up running road races years ago. As age and complacency have taken their toll, my commitment to running has gone from fanaticism to routine workout. So Mastodon—as well as the Vegas Rock 'N Roll half-marathon during WPBT in December—served as good motivators to kick my running up a notch.

I started training to get back in racing shape this summer, bumping up my mileage while throwing in the occasional long run (7+ miles) and tempo run (faster paced runs). I pegged the Des Moines Capital Pursuit 10 mile race today as a good training race, combining a long run with a chance to knock the rust off my road racing skills (such as they are). Back when I was a serious runner—10 years and 20 pounds ago—Capital Pursuit was one of the regular stops in my annual road racing repertoire, ranking behind only the Dam2Dam 20K as fun yet challenging distance races.

One of my best road races ever was finishing Capital Pursuit in 1:08:37 (6:51 min/mile pace). Considering I'm older, fatter, and lazier, my expectations for this year's Capital Pursuit were modest—don't die, and break 1:30:00 (9:00 min/mile pace). Secretly, I hoped to break 1:27:30. It's good to have goals.

Then last week happened. I was on the road for three days for work. I came down with a sinus infection I couldn't shake. I went to the doctor who put me on an antibiotic that led to, ahem, "intestinal distress". More ominously, the meds came with a four page brochure warning of horrific possible side effects. The most disturbing warning, taking up half the brochure, dealt with a rather alarming side effect. To paraphrase the warning:

CAUTION: This medication may cause spontaneous tendon rupture and random explosion or dismemberment of one or more extremities.

Well, that could put a damper on a casual run through the park.

Long story short, I took a full week off from running, mostly because running and intestinal distress make for an uncomfortable combination.  I thought about skipping Capital Pursuit, but I had paid for my registration, my sinuses were feeling better, and my knee and ankle were feeling as good as they've felt in years, having had a chance to let my chronic tendinitis calm down.

So there I was this morning, waking up at 4:45 a.m. to start the pre-race ritual I hadn't followed in at least eight years. Rehydrate with a couple of Gatorades (the low-cal version for my older, fatter body). Munch a granola bar to get some carbs in my system. Curl up on the couch with my dog in my lap while I read my Twitter stream and Google reader feed. OK, so that last part is new. I'm a modern runner.

The weather this morning was about as perfect as could be asked for a road race. Temperature was upper 30s at the start, and mid-40s by the finish. Light breeze, low humidity. The stuff where personal records (PRs) are made.

The race followed the long-traditional course from downtown to the state capitol, then up to the Drake University area, on to the Waveland neighborhood, then back down the Ingersoll business district before the final dash though the heart of downtown Des Moines to finish at Nollen Plaza. The course is fairly flat, with no major hills and all inclines fairly gentle.

I committed the newbie sin of starting out too fast, letting the adrenaline of the start and the pace of the lead pack pull me out at a fast clip around 8:00 to 8:10 min/mile for the first three miles. For those of you who aren't runners, you have to trust me that running 30-45 seconds per mile faster than your goal pace is very difficult, and a recipe for disaster. Even thought I felt comfortable at the fast pace, I knew I likely could not maintain that pace over the entire course in my current conditioning level. I decided to pull back a bit for the middle part of the race, going closer to the 8:30 min/mile pace, and feeling good about it.

Then, disaster struck. Somewhere in Mile 7, I felt the dreaded signs of the return of my intestinal distress. Being three-plus miles from the finish line and the nearest kybos, I was in the uncomfortable position of not knowing if my guts wanted to break wind or make it rain. Letting out a small test sample was inconclusive, as the mind senses butt sweat and assumes the worst. So, I had no choice but to suck it up and finish the race with a noxious bubble of who knows what churning up and down my intestines.

Just past Mile 7, when I wasn't sure if I could finish the race, I spotted the sig other and our dog, Berkeley. Berk looked like he wanted to jump into the race himself. Seeing Berk (and the sig other) gave me a little boost, and I started to pick up the pace. I didn't have as strong a kick at the end as I would have liked, but I still tripped off the last three miles right at 8:00 min/mile. As I was pushing toward the finish line, some 40-something woman came sprinting out of nowhere to try to pass me in the last block. I tried to dig in, but quickly realized I was not going to beat her. So, I got my azz kicked by a woman—along with several dozen teenage soccer players, AARP members, mothers and fathers pushing strollers with infants, and people who outweighed my fat azz by 30+ pounds. Such is the world of running; all can compete, and often effort and training matter more than physical talent. Still, I finished in a comfortable and satisfying 1:22:21 (8:12 min/mile pace) (54 minutes in Paul Ryan timing).

As an aside, I must apologize to anyone who was in the downtown Des Moines Marriott approximately 9:35 a.m. and happened to stumble on to my version of this scene:



Altogether, I was pleased with my race. My pacing was not perfect, but I ran the entire race without feeling stressed or winded, and I feel like I could probably coax a little better effort in my next race. Coming off a rough week, I ran better than most of my practice runs. It's tough to extrapolate this race to the longer half marathons coming up, but I feel I have a solid shot at meeting my goals of running Spinx in under 1:54:42 (8:45 min/mile pace), and Vegas in under 1:51.26 (8:30 min/mile pace).

Assuming I don't die in a South Carolina bar during Mastodon, of course.

Never Forget

Like most Americans of a certain age, I remember September 11, 2001 well. I had pulled an all-nighter at the office, working on an appellate brief. I had gone home for a quick nap, shower, and clean suit. I was ironing my shirt, watching CNN, when news broke of the first plane striking the Twin Towers. I remember thinking it was a terrible tragedy, but the idea of a terrorist attack was just one possibility. Then I watched as the second plane struck in the background of a live news update. That second strike made it real. There was no way it was an accident. America was under attack.

I remember going to the office, and watching in one of my partners' office as the Towers fell. I remember heading to a noon hour special Mass with several Catholic partners, even though I am a lapsed Lutheran. I remember heading home as they closed my building, the tallest in the Des Moines skyline, because right then the idea of a terrorist attack on an insurance building in the Midwest seemed entirely plausible. I remember watching hours of news coverage as America tried to come to grips with the thousands of little tragedies spinning off from the greater tragedy we were still unable to process.

Every generation has its defining event. For my grandfather's generation, it was Pearl Harbor, when America was pulled into history's greatest war against tyranny. For my father's generation, it was the assassination of JFK, the man who steered America away from the brink of nuclear war in the Cuban Missile Crisis, and was probably the last best hope to avoid the quagmire and historical-political repercussions of the Vietnam War.

For my generation, in 1995 I would have assumed our defining event to have been the Oklahoma City bombing, then the most significant act of terrorism on American soil. I still remember where I was when I heard the news of that attack—in my last year of law school, thinking about finals and the bar exam while supervising intramural softball. But somehow, the Oklahoma City bombing faded from the public memory in a few years, maybe because the terrorists turned out to be home-grown American radicals, maybe because times were good and Americans just wanted to move on. A few months ago, I was in Oklahoma City for a mediation. We walked past the Oklahoma City bombing memorial on our way from the parking garage to the soaring building where we were meeting. Our attorney rather off-handedly pointed out the memorial and mentioned how it was just part of downtown and not something he had visited in years. Just another historical marker for another historical event.

The terrorist attack on 9/11 truly was a defining moment for my generation. It dwarfed the Oklahoma City bombing in its scale, its brazenness, its evil. It was a sucker punch to the American psyche, an attack at the foundations of our culture on our home turf. The world changed for Americans when those planes hit the Twin Towers, the Pentagon, and the Pennsylvania countryside. We solemnly vowed we would never forget.

I remember the bitter political rancor that divided the country less than a year prior to 9/11, when a few hundred ambiguous votes and a split decision of the U.S. Supreme Court decided the hotly contested presidential election between George W. Bush and Al Gore. Yet in the days after 9/11, I remember being inspired by President Bush as he visited the still smoldering ruins of the Twin Towers. I remember my pride at Al Gore solemnly declaring, "George Bush is my President." I remember how Americans—so recently and so bitterly divided—came together, their political discord mended by a renewed sense of common cause.

We forgot.

Since 9/11, there have been three presidential elections, each more vitriolic than the prior. Americans are more polarized politically than ever. Red states vs. Blue states. Republicans vs. Democrats. Politicians willing to lie, dissemble, obfuscate, and slander merely to thwart the other side, without regard for the merits of the issue in dispute. America no longer has a common cause. It's good vs. evil, and evil vs. good. Compromise is a dirty word, an unacceptable surrender to the enemy. Bipartisanship is dead, slain by ideological purity.

I remember after 9/11 how Americans were careful to separate the terrorists from their Muslim faith. How politicians and clergy spoke of treating Muslims with compassion, to recognize that their faith does not condone such senseless violence, to understand that Muslims worldwide condemned the attacks and sympathized with our loss. I remember how the terrorists were our enemies, not Muslims.

We forgot.

Today, barely a decade removed from the atrocities committed by a fringe radical group more similar to the Oklahoma City bombers than to the average Muslim in the Middle East, the idea of a mosque in the same area as the Twin Towers is grist for conservative politicians and talk show hosts to whip up their base into a frenzy. These same radicals turn "Muslim" into a pejorative slander against our President, who makes the electoral calculation that it is better to declare his Christian bona fides than to defend the millions of Muslims whose faith follows a path of peace.

I remember when we sought those responsible for the 9/11 attacks and were viewed as the good guys, the righteous people seeking justice, not vengeance. I remember the broad coalition of our allies, and the support of those countries and peoples who prior to the attacks might have shared the terrorists' view of America as an arrogant, hedonistic behemoth who imposed her will on the world.

We forgot.

America's thirst for justice was subverted and perverted. We used the 9/11 attacks to justify a war against Iraq, a country with no connection to the attacks and posing no threat to American security. We began to torture enemies and suspected enemies, using euphemisms like "extraordinary rendition" and "enhanced interrogation techniques". We opened and continue to operate a concentration camp at Guantanamo Bay, enabling us to hold prisoners—even American citizens—idefinitely and beyond any judicial authority. We have Presidents of both parties asserting the authority to order the summary executions of not just foreign terrorists, but also American citizens thought to be terrorists. Those same Presidents who decry the loss of innocent Americans in the 9/11 attacks order drone strikes on terrorist suspects without regard for the collateral damage to innocent foreign civilians.

I remember when we viewed the 9/11 attacks as a fundamental attack on our American way of life. I remember how we swore we couldn't "let the terrorists win" by changing our core principles, by sacrificing our freedoms to assuage our fears.

We forgot.

Americans sold out their liberty for the illusion of security. Sensible security upgrades gave way to a nationalized system of security theater. Airports are filled with TSA agents irradiating and patting down millions of American citizens who pose no threat greater than transmitting the common cold with an unprotected sneeze. Now TSA agents are inspecting our beverages; it's only a matter of time before we all fondly remember the days when we did not have to strip naked before boarding a plane.

Even worse than the indignities of airport security are the more fundamental erosions of our rights. Today, the Homeland Security conglomerate mines the detritus of our daily lives, looking for suspicious patterns of behavior in the goods we buy, the books we read, the web searches we conduct, the people we meet. If we trip the wrong alarm, or piss off the wrong government official, we may find the full force of the government digging into our lives via secretive "national security letters" that circumvent our Constitutional due process rights. But it's all OK because the Government is simply trying to "prevent the next 9/11".

The 9/11 attacks unquestionably struck a major blow to the American way of life. But we do a disservice to those who died in the 9/11 attacks if we superficially remember their sacrifice while fundamentally altering our time-honored American values. Saying "we will never forget" is not about a monument or a memorial service. The best way to honor those who fell on 9/11 is to remember and celebrate the fundamental values of America—liberty, equality, and tolerance.

Never forget the essence of America.

In Cursura Veritas (In Running, Truth)

"You are never really playing an opponent. You are playing yourself, your own highest standards, and when you reach your limits, that is real joy."

~ Arthur Ashe

Last week, Republican Vice Presidential nominee Paul Ryan brewed a political tempest in a teapot when he was caught lying about his history of marathon running during an interview with Republican talk show host Hugh Hewitt. Ryan, a fitness fanatic, proudly claimed to have run a sub-3:00:00 marathon, specifically asserting he had run "Under three [hours], high twos. I had a two hour and fifty-something." Trouble is, Runner's World writer Scott Douglas did some research and found that Ryan's only recorded marathon time was actually 4:01:25 at the Grandma's Marathon in Duluth, Minnesota (generally regarded as one of the top ten marathons in the United States).

Ryan's campaign issued a statement admitting Ryan had not been truthful, but suggesting Ryan simply mis-remembered his time from a race 20 years ago. Although Ryan's explanation is probably good enough to satisfy the general public, among serious runners his explanation simply doesn't hold water. By asserting he had run a marathon in under three hours, Ryan was claiming to be among the elite of recreational runners. In the 2012 Grandma's marathon, only 145/3425 (4.2%) of men and 165/5788 (2.9%) overall runners cracked the three hour barrier. By contrast, Ryan's solid but unspectacular actual time of roughly 4:01:00 was matched in the 2012 Grandma's marathon by 1573/3425 (45.9%) of men and 2169/5788 (37.5%) overall runners. Ryan's boast is the poker equivalent of bragging about making the final table of the WSOP Main Event while actually busting out long before the money.

There is exactly zero chance Ryan simply made an honest mistake. Runners remember their times from their most significant races; maybe not down to the precise second, but certainly they remember whether they beat certain paces or times. For a marathon, the significant times all runners know are sub-3:30:00, sub-3:00:00, and Boston Marathon qualifying (generally between 3:00:00 and 3:30:00, depending on age and gender). Looked at another way, the pace for a sub-3:00:00 marathon is roughly 6:30 to 6:45 minutes/mile, while a 4:00:00 marathon is roughly a 9:15 minutes/mile pace. Trust me if you aren't a runner, but 2:30 minutes/mile is a big difference over one mile, and a massive (and painfully impossible) difference over 26 miles. So, breaking a significant, elite time barrier like 3:00:00 is simply not something a serious runner would forget or make a mistake about.

On the political side, Ryan's lie generated some discussion from pundits who were baffled why he would misrepresent something so trivial and so easily checked (James Fallows at the Atlantic and Nicholas Thompson at the New Yorker have some interesting thoughts on the subject). But to to frame Ryan's lie in a political context misses the point, in my estimation. In the rough and tumble of politics, Americans have come to expect politicians of every stripe to exhibit a certain casual disregard for the Truth, spinning fantastical policy proposals and unleashing outrageous attacks on the policies and character of their opponents.

But Ryan's marathon lie is not a political lie, it is a personal lie, an illusion to provide the bona fides for the legend of Raul Ryan, all-American hero. Ryan's marathon lie points to a deeper character flaw than mere craven politicking. In Ryan, we have a man who ran a perfectly creditable first marathon at a young age. Yet it wasn't enough for Ryan to be part of the proud pack of Americans who have completed a marathon in average fashion. Instead, Ryan's personal narrative required him to be among the elite of marathon runners. So, somewhere along the way, Ryan bedazzled his racing résumé.

Ryan's lie pales in comparison to some of the more odious examples of its ilk—misrepresentations of military service and honors, job experience, and educational credentials are more serious and probably more common. Even among marathon fraudsters, Ryan's lie is rather petty compared with the notorious Rosie Ruiz who cheated her way to short-lived victories in the New York City and Boston marathons, or the lesser known but more ambitious Kip Litton who was recently outed as having cheated in several marathons in a quest to break the 3:00:00 barrier in every state, going so far as to even invent one marathon entirely (hat tip to @Iggylicious for pointing out Mark Singer's excellent piece in The New Yorker).

Still, Ryan's lie is probably more disturbing to those of us who are serious runners. For the vast majority of runners, running is not about prizes and accolades, running is purely about personal growth. In an ironic twist, running embodies the Ayn Rand-infused self-made-man mythos Ryan has long demagogued. Runners start from different baselines of ability, and have different natural limits to their talent. But within those parameters, whether a runner improves is solely a function of how hard they want to work. Sure, runners will race each other, but mostly runners are racing themselves, chasing their own personal records (PRs), seeing if they can set a faster pace through a section of hills, or trying to kick a great last mile. The only way to measure improvement—the only way to "keep score"—is by stopwatch. A runner who cheats on his time insults those runners who have put in the effort, the hard work, to earn their times.

Make no mistake, marathon training is hard work. It takes dedication to stick with training in heat, humidity, wind, rain, cold, snow, and ice. It takes commitment to organize your daily routine to include two hours or more for running. It takes grit to keep pushing yourself when you've run fourteen miles and have six more to go, and your legs are burning with lactic acid and your chest is straining for oxygen. But most of all, it takes mental toughness to silence that voice in the back of your head that wants you to ease up the pace, take a walking break, cut short a workout, or enjoy an extra rest day. Paul Ryan probably had—and may still have—the physical talent to run a sub-3:30:00 or even a sub-3:00:00 marathon. But Ryan chose the easy path, awarding himself the honor of an elite time he couldn't be bothered to work for.

Maybe Paul Ryan's marathon lie shouldn't disqualify him from becoming Vice President. Of course, in my view, many of his political positions have already disqualified him. Still, if you are an undecided voter, next time you hear Ryan wax poetic about how Americans can achieve anything they want through hard work, just remember:

Paul Ryan doesn't believe that.

United States v. DiCristina—A Win for Poker Players (with an Asterisk)

"Well, let's not start sucking each other's dicks quite yet."

~ The Wolf (Harvey Keitel), in Pulp Fiction (1994)

As most poker players are aware, earlier this week a federal district court judge entered a ruling in United States v. DiCristina finding that poker is a "game of skill" and therefore is not "gambling" for purposes of the federal Illegal Gambling Business Act (IGBA). The lengthy decision by Senior Judge Weinstein is as thorough a discussion of the statistical evidence of the effect of skill in poker as one will likely ever see in a judicial decision. The opinion also contains an exhaustive review of practically every conceivable state or federal statute or appellate decision that addresses the regulation of poker in the context of gambling laws. Every poker player should read the decision to better understand the nature of the legal issues certain to arise as online poker continues down the path to inevitable legalization and regulation in some form.

I skimmed the decision when it was issued and Tweeted some initial thoughts (one of the advantages of being a lawyer is learning how to find the legally significant spots in a 120-page decision) (for the record, those Tweets are here, here, here, here, and here). After a more leisurely perusal of the decision, my initial thoughts remain valid, but I did pick up a few additional points of interest. Now many poker players probably just care about the bottom line—a win is a win, right? In law, however, how one wins is often more important than the case specific outcome. [FN1]

So, in no particular order, here are what I found to be the key points and interesting nuggets from the opinion:

Big win for poker players and the PPA:  There is no question that this decision was a win for poker players. Having a federal judge give careful consideration to the "poker is a skill game" argument and then endorse it in a thoughtful opinion is a win, regardless of the ultimate outcome on any appeal, and regardless of whether the decision is adopted by other courts or remains a one-off outlier. The Poker Players Alliance (PPA) also deserves kudos for not merely rehashing its prior arguments, but for finding an expert economist and statistician, Dr. Randal Heeb, who provided critical analysis and testimony that formed the underpinning of the decision (more on Dr. Heeb later). This decision would not have been possible without the solid work of the PPA's attorneys, and the PPA rightfully should be proud of the decision. [FN2].

First meaningful win for poker: This decision is also important because it is the first court of consequence to issue a ruling that will have any precedential effect. To date, the handful of court "wins" for poker have all been issued by state district courts whose decisions have no binding or persuasive effect on other courts. Every appellate court to date has ruled against the "poker is a skill game" argument. But federal district courts occupy a unique spot in the legal authority realm. Federal district court decisions of consequence are "reported" (officially published) and can be cited as authority in other cases just like appellate court decisions. These district court decisions are not binding on other courts as an appellate decision would be, but they are often looked to as persuasive authority by appellate courts confronted with developing areas of the law. Having a thorough, well-crafted judicial opinion on the merits of the "poker is a skill game" argument on the books, so to speak, lends a certain gravitas to the argument which can bolster that argument if and when it is considered by other courts.

The decision has a shot at being affirmed on appeal:  The obvious question on most poker players' minds is whether the decision can survive if the government appeals. An appeal is not guaranteed, but given that the decision breaks new ground and cuts against precedents from other federal courts, and considering that the government invested a lot of resources fighting this issue rather than plea bargaining what otherwise looks to be a trivially routine gambling case, I would expect there to be an appeal. Now Judge Weinstein is known for a liberal slant, and has written groundbreaking criminal decisions that were later reversed on appeal. But the Second Circuit is less conservative than most federal courts of appeal, and Judge Weinstein is well-respected as a smart judge (and former law professor at Columbia). Also, the case involves a bread-and-butter interpretation of a federal statute rather than a hot button Constitutional issue, so ideological differences among the appellate judges will have very little impact on the outcome of any appeal.

The decision is going to generate a lot of attention among the appellate court judges for several reasons. First, the sheer length of the decision will signal that something significant is occurring. The reason for the length of the decision is that Judge Weinstein spends a great deal of time going over legislative history as well as an exhaustive analysis of poker-related statutes and decisions from around the country. That kind of effort simply is not put into a routine decision, and the appellate judges will certainly note that Judge Weinstein is setting up his argument for a novel interpretation of the IGBA. The weakest part of the decision is that it conflicts with: a) prior federal court decisions related to the IGBA in which state gambling law served as the sole determining factor as to whether a predicate offense had occurred, b) prior federal court decisions in which poker was the predicate gambling activity for an IGBA offense, and c) numerous state appellate decisions and several federal court decisions that have determined poker is "gambling", including some which have considered and rejected the "skill game" argument.

To be blunt, established case law weighs heavily against Judge Weinstein's decision, and it would be fairly easy for the appellate court to reverse the decision. But, many of the prior IGBA cases can be distinguished because they assumed that poker was within the scope of the IGBA rather than analyzing the issue. Also, this case has the best, most detailed factual record as to the "skill game" issue of any court challenge to date. In this regard, Judge Weinstein was a fortunate draw for poker players, as his decision does an excellent job of pointing out the flaws inherent in the legal and factual assumptions underlying the prior adverse decisions. Judge Weinstein has marked a clear legal analysis path for the appellate court, if it chooses to follow his lead.

Nonetheless, I think the deck remains stacked against poker players if there is an appeal. Despite Judge Weinstein's adept "skill game" analysis, poker is still regarded as gambling both under New York law and in the public eye. Poker's reputation in front of the appellate court will certainly not be enhanced by the highly publicized Black Friday prosecutions (and the DOJ's "Ponzi scheme" commentary), particularly given the context of the IGBA's anti-organized crime history and purpose. As I have discussed previously, poker's reputation is a tough hurdle to overcome. Poker's considerable historical and cultural baggage might well overwhelm Judge Weinstein's legal analysis. And if the Second Circuit decides it doesn't want to endorse legalized poker, existing precedents will make it easy for the appellate court to reverse the decision. The easiest and most likely analysis to be used by the appellate court to reverse the decision is to follow those federal courts which defer to state law to define "gambling", and to find that New York state law governs the issue of whether poker is "gambling".

Interestingly, if the decision is reversed on appeal, the portion of the decision analyzing the "skill game" argument would potentially still have precedential value. If the Second Circuit decides that state law controls the "illegal gambling" question and that no further analysis is required under the IGBA, then the Second Circuit would never reach the "skill game" analysis. In that situation, although the case would have been reversed, Judge Weinstein's analysis of the "skill game" argument would remain fair game for citation to other courts (lawyers refer to this by the phrase "reversed on other grounds").

If I were a betting man, I would wager that the decision is ultimately reversed on appeal. But the odds against poker players are not nearly as long as they have been in past cases, and with a favorable panel of judges the decision has at least a puncher's chance of surviving on appeal. [FN3]

The decision is limited in scope:  The decision only addresses the narrow question of whether poker is "gambling" for purposes of the federal Illegal Gambling Business Act (IGBA). As I have discussed in prior posts, when it comes to statutes, definitions are critical. "Gambling" for purposes of one statute may not be "gambling" for purposes of another statute. So the mere fact that poker is regulated as gambling under New York law (or another federal or state statute) is not necessarily dispositive of whether poker was gambling for purposes of the IGBA. Likewise, merely because the court ultimately found that poker was not gambling for purposes of the IGBA does not mean that poker is no longer illegal gambling under most state laws and possibly other federal laws. Still, if the decision holds up, it would remove one weapon from federal prosecutor's anti-poker arsenal.

Poker is illegal under New York state law:  Although the defense team abandoned its argument that poker is not gambling under New York state law, the court nonetheless found that the argument had no merit. The decision explicitly noted that, "New York courts have long considered that poker contains a sufficient element of chance to constitute gambling under that state's laws." Another defendant could always raise a challenge to New York's state law on poker, but it seems doubtful that such a challenge would be successful.

Poker is still illegal under most states' laws: The decision contains an exhaustive listing of state laws and appellate decisions which consider poker to be gambling subject to ban or regulation (see Section II(5), pp. 47-51). The list is pretty bleak from a pro-poker perspective. Most states either explicitly define poker as gambling, or have found poker to be within the definition of gambling, regardless of the amount of skill involved. Again, poker players must keep in mind that, even if skill predominates chance in poker, states can still define "gambling" in such a manner as to encompass poker. The decision doesn't change how any state gambling laws view poker. So if poker was illegal gambling in your state prior to the decision, it is still illegal today.

Poker may still be illegal under federal law:  The decision only interpreted the IGBA. There are other federal statutes that could still be used by federal prosecutors against businesses offering poker, most notably the Travel Act. Unlike the IGBA which contained its own definition of "gambling", the Travel Act simply relies on a violation of a state gambling law to establish the predicate offense. Also, note that the Travel Act prohibits use of "the mail or any facility in interstate commerce" to "distribute the proceeds of any unlawful activity" or "otherwise promote, manage, establish, carry on, or facilitate the promotion, management, establishment, or carrying on, of any unlawful activity". This arguably could mean that merely mailing checks, promotional materials, or awards to players could be a violation of the Travel Act. So far federal prosecutors have not used the Travel Act in any poker-related prosecutions (at least not to my knowledge), but that might change if they lose the IGBA as a tool because of this decision.

House-banked game defense was rejected:  The PPA and many poker players have argued that the fact that poker is not a house-banked game (like blackjack, or three-card poker) is a significant distinction in determining whether poker should be considered "gambling". Even Judge Weinstein rejected that argument, rather summarily (p. 109). This argument is one of those situations where an important factual distinction winds up having no legal significance. So legally, if money gets wagered, it's probably gambling, regardless of how the house makes it profitable.

Revenge of the nerds:  As noted earlier, it is obvious that Judge Weinstein was impressed by Dr. Heeb's statistical and economic research. Although there have been a number of studies that purported to prove that poker was a "skill game", those studies merely demonstrated that skill had an effect on the game, and none of those studies really reached any meaningful conclusions as to the relative effects of skill and luck on the outcome of the game. Dr. Heeb did some really interesting and persuasive analysis directed to that specific issue. One analysis showed that the "long term" required to allow skill to overcome chance is not nearly as long as might be imagined, perhaps as low as 1,000-3,000 hands (rates that can be seen over the course of a long, deep-stacked tournament or a relatively short period of cash game sessions). Another analysis attempted to isolate the skill element of poker by cleverly demonstrating how winning and losing players showed significantly different win rates even when playing the same hand (the examples Dr. Heeb used were K9o and QJs). Any fan of Freakonomics-style analysis would enjoy the court's discussion of Dr. Heeb's testimony. I don't think it is an overstatement to conclude that Judge Weinstein's decision likely would have turned out differently without Dr. Heeb's analysis.

The court's discussion also noted that most online players in the large dataset used by Dr. Heeb were losing players, with 90-95% of players showing net -EV. This statistic was somewhat higher than I would have expected. This statistic could also be used on appeal to argue that, since most players are expected to lose, poker is no different than house-banked games. Judge Weinstein dismissed this argument as irrelevant to the issue of whether poker is a "skill game", and I agree that it is not relevant. But that fact still is one that might be of interest to an appellate court.

The decision is probably not a game-changer:  Even if the decision is affirmed on appeal, its impact on the poker legalization fight is likely to be minimal. In many states, whether poker is a game of skill is utterly irrelevant as poker is explicitly regulated as gambling. In other states where poker's status is not defined by statute, courts have already ruled that poker is gambling, and those courts are unlikely to reverse course after having decided the issue. The decision probably has little application to other federal gambling statutes because the decision is based on the IGBA's particular definition of "gambling". The decision is unlikely to affect federal or state poker legislation efforts as legislation is mostly a political issue which will not be swayed by one court's technical legal analysis of one federal law; poker simply isn't the kind of hot button legal-political issue like abortion or health care where a court ruling matters to legislators. It is possible that anti-gambling groups will use the decision to press for an explicit ban of online poker, but nothing I've read suggests that anti-gambling groups would have any better success passing a poker ban than pro-poker groups have had in passing poker legalization; those issues appear to be in stalemate at least through the upcoming elections. Most likely, the decision will ultimately have only symbolic value.

PokerStars may be the hidden winner:  Because the decision is from a different court, it does not change the pending DOJ Back Friday criminal or civil forfeiture cases other than to make it marginally easier for the remaining defendants to leverage a better plea bargain or settlement because the DOJ's IGBA and associated money laundering charges are now in a somewhat weaker position. The Black Friday cases are ultimately more about the banking and financial shenanigans of those involved than the underlying poker businesses themselves. But the decision certainly strengthens the argument to be made by PokerStars to state gaming regulators that merely running an online poker business did not violate federal law. Even if the decision is reversed on appeal, PokerStars could still argue that if a respected federal judge thought that poker was not regulated by the IGBA, then they certainly had a good faith belief they were not violating the IGBA. Of course, there would still be the matter of PokerStars allegedly violating state gambling laws, the UIGEA, federal money laundering laws, and federal banking laws. But if the applicability of the IGBA and the Wire Act can now be called into question, it becomes easier to raise doubts about some of the other laws in the mix.

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[FN1]  Think of the recent U.S. Supreme Court kerfuffle over the Affordable Care Act; although the Act was upheld, the legal reasoning in the decision placing limits on Congress' Commerce Clause authority may ultimately prove critical in decisions far removed in time and subject matter from the health care debate.

[FN2]  The PPA's success in this case, however, does not change my prior critiques of the PPA's "legalization by litigation" strategy. The discussion of whether the damage done by the PPA's earlier legal blundering is redeemed by this decision is better reserved for a separate post.

[FN3]  Thinking way down the road, if the Second Circuit affirms Judge Weinstein's decision, it could potentially set up a U.S. Supreme Court appeal to resolve a conflict among the various circuit courts of appeal as to how the IGBA is interpreted. This would be most likely if the Second Circuit finds that state law does not control the determination of what constitutes "illegal gambling". A lot of stars would need to align for poker to have a day in that Court, but these are the types of issues that are SCOTUS' bread-and-butter cases (i.e., interpretation of a federal statute, and resolving conflicts among the circuits).

Did Pappas and the PPA Just Shoot Full Tilt Players in the Foot?

Last Friday, Poker Player Alliance (PPA) executive director John Pappas wrote an editorial for Forbes.com calling for Congress to enact legislation authorizing online poker. The Pappas editorial was headlined, "The DOJ Has Spoken: It's Time For Congress To Legalize Online Poker", which seemed rather strange following the recent $731 million dollar settlement of the DOJ's forfeiture claims. But the headline was not misleading; Pappas in fact asserted:

The hidden gem in this settlement agreement, however, has much larger stakes for American poker players as well as online poker more broadly. In the agreement, the U.S. Attorney’s Office very clearly left the door open for PokerStars, and it’s now-owned Full Tilt Poker, to become licensed online poker operators as soon as the United States decides to license and regulate this great American pastime.

This sends an important message to Congress. The Justice Department could have very easily banned PokerStars and Full Tilt Poker from the United States forever. Yet it chose not to. It chose to clearly recognize that online poker can and should be a viable industry in this country. Now the question is, will Congress listen?

In legal writing, a good rule of thumb is that any statement or contention that uses "clearly" to describe a factual or legal conclusion is likely highly contested. Let's take a quick look at the Full Tilt settlement agreement. In paragraph 7, there is a standard clause stating that the settlement agreement is not an admission of fault. And in paragraph 10, the agreement provides that Full Tilt and its affiliated companies (which would include PokerStars as its new owner):

are precluded from offering online poker for real money in the United States until if and when it becomes permissible to do so under relevant law.

The DOJ press release announcing the settlement contained similar language, as well as a rehashing of the criminal indictments and civil forfeiture claims it had filed, in all their illegal gambling, bank defrauding, money laundering, and Ponzi scheming glory. Certainly nothing in either document contains any indication that the DOJ "chose to clearly recognize that online poker can and should be a viable industry in this country."

In advocacy, it's certainly permissible to argue for a conclusion that rests on an inference drawn from incomplete premises. Here, however, Pappas has crossed the line and falsely insinuated both that the DOJ has taken a position with respect to a thorny and contentious political question, and that the DOJ is in favor of legalization of online gambling despite its recent high profile prosecutions of the major online poker sites.

Blatant misrepresentations like this only serve to undermine the credibility of whatever information or point of view an advocate is attempting to convey. Perhaps Pappas and the PPA felt that their little bit of sophistry would score some easy points with a public unfamiliar with the details of the DOJ-Full Tilt settlement, and was worth risking the PPA's credibility. Even so, Pappas' misrepresentation was a stupid and unnecessary rhetorical gamble.

It's not just the general public tracking the ongoing fight over online poker on Forbes, after all. A much more likely audience for Pappas' article is the DOJ itself. Considering that the PPA is lobbying the DOJ for full repayment of Full Tilt player account balances, it seems foolhardy for Pappas to poke—and probably provoke—the DOJ by publicly asserting the DOJ wants to legalize the very conduct it has just spent years investigating and prosecuting in a high-profile manner. It's certainly not the smartest public relations strategy.

Of course, the PPA probably has little or no credibility with the DOJ in any event. It is no secret that the PPA pre-Black Friday funding came predominately from Full Tilt and PokerStars, the PPA's current funding comes predominately from PokerStars, the PPA's primary founders and directors were owners of Full Tilt (Howard Lederer and Chris Ferguson, who both remain subject to DOJ forfeiture actions), and the PPA's congressional spokesperson was a shill for Ultimate Bet/Absolute Poker (Annie Duke). Given how the DOJ views that poker rogues gallery, the DOJ's granting the PPA permission to submit a letter on repayment of Full Tilt players begins to feel like a classic case of "You'll be given a fair trial and then shot."

Pappas' article in Forbes is simply the latest in a long line of amateur hour moves by the PPA. Poker would be better off if sometimes the PPA just shut up.

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ADDENDUM (16 August 2012):  Today, Shamus over at Hard Boiled Poker took a look at the Pappas op-ed in Forbes, and as usual shared some interesting insights. Give his blog a read every day for great poker commentary.

Earlier this week, Chris Grove at Online Poker Report posted a thoughtful contrarian response to my commentary. First off, I find Online Poker Report to be a consistently solid source for poker news and commentary, and encourage poker players to check it out if it's not already in your regular reading. Second, I do have a few responsive comments, but Online Poker Report apparently does not accept comments, so I will post them here.

Starting with one of Grove's last points, Grove and I are in agreement as to the weakness of Pappas' contention that the DOJ has endorsed the legalization of online poker:

It’s not a great argument.   It’s not even really an argument at all – more just two ideas in proximity.  There is a big, big step between the DoJ leaving the door open for PokerStars / Full Tilt Poker in a future, regulated US market and a full-throated DoJ endorsement of that market.

However, Grove doesn't view Pappas' contention that the DOJ "chose to clearly recognize that online poker can and should be a viable industry in this country" as a misrepresentation. "Instead, Pappas is offering one possible interpretation of what one might read in the tea leaves of legal language – a pretty common pastime that rarely gets you called a liar."

As I noted in my initial post, there is simply no evidence to support Pappas' contention. Let's call a misrepresentation a misrepresentation. Although I understand Grove's instinct to be charitable as to Pappas' intentions, Pappas wrote the piece not as part of an everday run-of-the-mill BS session, but as an op-ed in a major business publication in his role as the leader of an advocacy group which is currently engaging and presumably plans to continue to engage in dialogue with the DOJ. As a lawyer, I am in front of administrative agencies regularly. If I or someone from my company started publishing false statements about key agencies, I would fully expect to receive a cool reception next time I had business in front of that agency, and my company would rightfully hold me responsible for creating tension in the relationship between my company and the agency. Pappas similarly owes a heightened duty to the PPA's members not to provoke the DOJ, particularly when the PPA is actively lobbying the DOJ on an issue considered important by many of its members.

Finally, Grove points out what he feels is an inconsistency in my concerns—how can Pappas' comments affect the PPA's credibility with the DOJ if, as I contend, the DOJ already has a pretty low regard for the PPA?

Well, which is it? Is the DoJ parsing Pappas’ every word like a starstruck schoolgirl triple-reading Tiger Beat? Or could they care less?

My guess, for what it’s worth, is that they treat the PPA just like they treat any lobbying organization interacting with the agency during the course of official business (heavily weighted toward general indifference). I’m sure this isn’t the first time the DoJ has dealt with backed by tainted money.

Perhaps the problem here was a lack of clarity in my initial critique of Pappas and the PPA. It is entirely possible for the DOJ to view the PPA with skepticism as a general matter, and for the Pappas article to further damage the PPA's credibility with respect to the pending remission issue. Look, as a lawyer, I have had numerous cases where my client had credibility issues. In such a case, the last thing I want to do is something that adds fuel to the fire. Here, the PPA was given the opportunity to present the views of its members to the DOJ. Even though the PPA's close connection to Full Tilt and PokerStars likely gives the DOJ a certain degree of uneasiness, the DOJ will still give at least some consideration to the points raised by the PPA. Why on earth would Pappas think it was helpful to achieving the PPA's goals to jab the DOJ by misrepresenting its position in such a public manner? What possible good can come of it?

The Pappas article may in fact ultimately have little or no impact on how the DOJ considers the points raised by the PPA on the Full Tilt remission issue. My point is that Pappas was foolhardy to even take a chance on provoking the DOJ with his ill-advised commentary.