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Legal Niches: Law of the Game
Poker, The Internet, and The Skill-Chance Continuum
By Mark Methenitis
To illustrate the issue, the game of poker has to be examined from both a chance and skill angle. For the purpose of this discussion, imagine that the poker game in question is consistent between the online and real world application, because changes in the rules would make this analysis less accurate. From a chance perspective, the games are theoretically identical. There are the same number of cards dealt at random in the same manner. Seeing this identical chance element may make many people stop their analysis, and that is the trap I initially fell into.
However, examining the games from a skill angle, there is a difference. Now, bear in mind this analysis is examining online poker without the use of webcams or other direct feeds on the actual faces of the players. Running a poker that requires active webcam use and participation (i.e. every player's actual face and upper body must appear on camera at all times) may very well be no different than playing in person. But assuming a more traditional online poker venue where representation is by avatar and some sort of chat system, the online variant only has some of the skills that could be used in a real life game. Specifically, the online game does have the skill of reading your cards odds (although this may not be as great since online players can be referencing statistical information while playing) and reading your opponents' betting behavior. Real life poker adds the entire dimension of reading the body language and behavioral quirks of your opponents. Theoretically, someone who took full advantage of all potential skill play in real life poker would be playing a greater skill game than someone utilizing all skill in online poker.
Thus creates the difficulty. If skill/chance is a spectrum, as practically all legal scholars cite, then how can online and real life poker be reconciled? Both have identical chance elements, but one has greater skill elements than the other. This leads to one of only two conclusions: Either skill and chance must be viewed in terms of a relativistic percentage scale, meaning that games with identical chance elements can have variable chance percentages based on the total skill elements in the game or the skill/chance spectrum can be extended, and is therefore not a static spectrum as it is often discussed. To put this into numeric terms, if poker has a chance value of 40, then under the first theory, the maximum value is always 100, so online poker would be 40/60 while real life poker would be 30/70. Under the second theory, the respective ratios would be 40/60 and 40/93.333 for a possible total of 133.333. Clearly either one accounts for this particular issue, and neither one is universally optimal over the opposite approach. Of course, it's not as thought anyone is applying numerical analysis to the skill/chance ratio at this time.
However, where this may matter is for the discussion should the trend continue toward the legalization of skill games online versus the contined banning of chance games in the US, especially if a bill like the Skill Games Protection Act should pass. Really, this operates as an interesting thought exercise that may later prove more troublesome for figuring out there the skill game line will need to fall if this division is in fact going to determine online gambling legality in the US going forward.
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