NC Court of Appeals Rejects Poker as Skill

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NC Court of Appeals Rejects Poker as Skill

by George Smart, Editor

The case went on appeal August 23, 2006. Today the North Carolina Court of Appeals ruled that poker is a game of chance and not skill, saying that while skill can enhance a player’s chance of winning, the luck of the draw means poker is ultimately a game of chance.

Background:

Making state and local papers in the last two years is a well-tanned entrepreneur from Cary, an avid golfer (hence the tan) whose venture, according to the state, wasn't even legal. He took the state to court, lost, and is now kicking it up a notch -- to the North Carolina Court of Appeals.

What is this golfer up to? Howard Fierman wants poker declared as a game of skill, not as a game of chance (and therefore illegal) as the state now interprets it. This ruling means Fierman could open a local poker room where the house takes a fee (called a rake) for each hand dealt, just like in Las Vegas or Atlantic City or the many card rooms in California and elsewhere.
While luck is a factor, Fierman believes poker is a game of skill, just like pool, bowling, or golf, any of which you can legally bet on in North Carolina. Curious? See NC Statutes 14.292 and 14.293 at the NC Gambling Laws page.

California's decades-old discussion of how to evaluate poker led to that state's determination that poker was a game of more of skill than luck.

"A game is not to be regarded as one of skill merely because that element enters into the result in some degree, or as one of chance solely because chance is a factor in producing the result. The test of the character of a game or scheme as one of chance or skill is, which of these factors is dominant in determining the result?” -- People v. Settles, Appellate Department, Superior Court, County of Los Angeles, 1938.

Fierman wants a similar determination here in North Carolina. He realized he had to get case law to support him. To do that meant going to court. Fierman wrote Durham District Attorney Jim Hardin in 2004 and asked for his opinion on a proposed casino-style poker room. Fierman also incorporated as The Joker Club LLC and proceeded to sign a lease for a what he called a "shack" off I-85 in Durham. When Hardin responded that such a business would be illegal, Fierman lost his lease on the building.

Local TV crews were quick to film the rundown building. "Despite what the media reported, I never intended to open at that facility," says Fierman. In fact, he chose the cheapest building he could in part knowing that Hardin's likely opinion would deep-six it. Why? Such a loss establishes legal standing (something at stake) to pursue the larger question of legal poker. Without this standing, it would have been very difficult to bring a case to trial.

With a lost lease as legal standing, and using attorneys Marcus Hill, Allen Powell, and Butch Williams, he sued DA Jim Hardin. Durham Judge Orlando Hudson upheld Hardin and the state's position in 2005. Despite Hudson's ruling, Fierman cites Hardin's and Hudson's fairness and responsiveness to his legal requests. However, he finds major faults with Hudson's ruling -- and these constitute the basis for the appeal.

According to Fierman, Judge Hudson failed to judge the case on its merits. The majority of the evidence and witnesses presented supported poker as primarily a game of skill. Chance plays a part, but only a small part. Instead, Judge Hudson erroneously concluded that "the Legislature has the authority to determine whether poker is a game of skill or a game of chance, and to make a clear decision as to whether poker is allowed in North Carolina." Then, interestingly, Judge Hudson went on to rule that poker was a game of chance.

Fierman wants to remove poker from the back rooms and elevate its image from an "under the table" activity to an entertainment and skill-testing opportunity for the masses, just like bowling and billiards. He is also acutely aware that playing poker in private home games can be dangerous for a number of reasons: frequent cheating, potential for personal injury, and robbery.

Legalizing and regulating the game would also bring jobs, local tax revenue, and greater security for players within a casino environment. If eventually approved and licensed, building, staffing, and running a casino will take tons of cash, but Fierman is confident he'll get all he needs. "People are calling begging me to invest, but I won't accept investors until the chances of success are very high." For now, he bankrolls the attorneys and expert witnesses by himself. His extensive network of poker authorities, including Mike Sexton, Daniel Negreanu, Roy Cooke, and others are on call to present a powerful array of arguments and data to support a definition of poker as primarily skill-based.

The recently approved state lottery also has relevance to Fierman's project. "The lottery, though nothing to do with poker, had taught us that the general public has become desensitized to gambling to the point that they just don't care."

Fierman has a precise memory. He quotes statutes and case law word-for-word. He recites a poem from Omar Khayyam as easily as he describes pot odds. This is a man who is always thinking many moves ahead. Says Fierman, "Poker is about maneuvering situations where you have mathematical or psychological advantage to win."

Full Text of Appeal may be found in PDF format at www.trianglepokerjournal.com/

Photo of Howard Fierman by George Smart.

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