A-Rod's poker game is illegal. Is mine, too?

Answers to your questions about the news.
Aug. 4 2011 7:20 PM

A-Rod's Poker Game Is Illegal

Is my poker game illegal, too?

Young man playing poker.

Alex Rodriguez is under investigation by Major League Baseball for allegedly participating in poker games held at a record executive's Beverly Hills mansion. ESPN.com has called these private affairs "illegal." Does that mean my home poker game is against the law, too?

Julia  Felsenthal Julia Felsenthal

Julia Felsenthal is an assistant at Slate.

Probably not. Gambling laws differ from state to state. California, where Alex Rodriguez allegedly played, prohibits eleven specific games under Penal Code 330, as well as any "banking" or "percentage" game. Poker is not on the list, nor does it qualify as a banking game (in which players bet against the house). In a percentage game, the organizer makes money beyond his own winnings in exchange for hosting. It follows that poker played in a private home is legal so long as the proprietor does not demand special compensation. But even if he does, there's a loophole: If the organizer "rakes the pot," or removes a percentage fee, no more than five times, the game is technically still legitimate. Of course, in A-Rod's case, we have no idea whether he was involved in a percentage game or how many times the organizer raked the pot, so it's hard to determine whether the Yankee is guilty of anything more than violating the MLB's industry rules.

Private gambling is very rarely prosecuted in California. In the state's history, nobody has ever been prosecuted for raking the pot more than five times in a private game. If, against all odds, you were prosecuted, you would be charged with a misdemeanor. Other states regulate participation in private poker games differently. About half the states, including New York, do not have laws against participating in a private poker game. On the other end of the spectrum, Utah has outlawed gambling entirely and provides no exemption for at-home poker playing. Even in Utah, though, violating those laws results only in a misdemeanor charge.

Gambling laws in California date back to the 1870s and 80s, when the state decided to crack down on the casinos that had sprung up during the Gold Rush. As a result, many of the 11 games specifically outlawed by the California penal code—faro, monte, roulette, lansquenet, rouge et noire, rondo, tan, fan-tan, seven-and-a-half, twenty-one, and hokeypokey—are unfamiliar to the modern-day gambler. The original list actually included a 12th game, stud horse poker—not to be confused with stud poker. The two games' similar names did in fact confuse the state's attorney general, who outlawed stud poker in 1947 with the understanding that the two games were identical. (The ruling was overturned about 20 years ago. As for stud horse, it was eventually removed from the list.)

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In order for a game to constitute gambling, it must involve a prize, consideration, and chance. Recent judicial decisions in Pennsylvania and Colorado have challenged the status quo notion that poker really qualifies, since it seems to require more skill than luck. In Colorado, a man named Raley started a bar-poker league in which the league kept 10 percent of the $20 entrance for league expenses and to pay the dealer. He was charged with illegal gambling. He was subsequently acquitted on the strength of testimony from a professor of statistics and mathematics at the University of Denver, who presented a study demonstrating that skilled players win poker games 97 percent of the time. Both the Colorado and the Pennsylvania decisions were eventually reversed on appeal, reiterating the established understanding of poker as a form of gambling based predominantly on chance.

Got a question about today's news? Ask the Explainer.

Explainer thanks Joe Kelly of Suny Buffalo, I. Nelson Rose of Whittier Law School,and Bob Snyder of Bob Snyder & Associates.

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