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BGonline.org Forums
Some information
Posted By: Daniel Murphy In Response To: Some information (Steve Mellen)
Date: Wednesday, 20 October 2010, at 3:07 a.m.
The "dominant factor" test may not be the best test, but it's not the worst. It's one for which a very good argument can be made that backgammon passes.
This seems to be a decent place (since the "Bad news from Belgium" thread went off-track) to jump in and say that advocacy for backgammon as a mind sport needs to be tailored to specific legal obstacles in specific jurisdictions.
(1) A game or certain activities may be regulated with respect to wagering. For example, athletic sports are never defined as games of chance, but sports betting is usually illegal or highly regulated. Or a law might prohibit contests with entry fees or registration fees above some nominal amount, regardless of whether the game is one of skill or luck or both. There is, for example, case law in New York state of gaming law convictions for charging 25 cents a seat in a home bridge game. Or for example, a home poker game may be stricly illegal, or legal as long as the host takes no cut, charges nothing for refreshments, etc. I recall reading about a poor woman, a dangerous criminal, convicted in New York state of gaming for charging people 25 cents a seat in a home bridge game. I believe that was many years ago. I hope she's out of jail now. It's worth noting that (my understanding is that) playing bridge (or poker) for money is not illegal in New York state, but "facilitating" (illegal) gambling is --
(2) A law might name a game and apply regulations to it. For example, under the new Danish gaming law poker is defined as a "casino game," and thus subject to the regulations applied to casino games. Argue as you might in a Danish court that poker is a game of skill, poker would still be regulated under the laws governing "casino games," until the law is changed.
The history of poker in California has taken some strange twists. My understanding of California law is that games are legal unless prohibited by name. Chuck Humphrey discusses this in detail at gambling-law.us.com. Prohibited games today are "faro, monte, roulette, lansquenet, rouge et noire, rondo, tan, fan-tan, seven-and-a-half, twenty-one, hokey-pokey, or any banking or percentage game played with cards, dice, or any device...." Note that "twenty-one" is on the list, which is why California card rooms don't offer blackjack -- instead they offer a very similar game sometimes called "California Aces." Backgammon is not on the list. Hurrah!
As for poker, a law passed in 1885 put "stud-horse poker" on the list. What's that? Well, in 1947 the California Attorney General opined that "stud-horse" poker was "stud" poker, and therefore illegal, but draw poker games (like lowball) were not "stud-horse" poker and therefore legal. In 1990, a court ruled that "Texas Hold'em" was not a stud poker game. So Texas Hold'em was legal, but seven card stud was not. The provision regarding "stud-horse" has since been removed.
(3) A law might define a game as a "game of chance." For example it might say "Checkers is a game of chance" and outlaw or regulate checkers. Again, arguing that checkers is a game of skill won't change the law.
I don't know of any laws that define backgammon by name as a game of chance. There may be some.
The 2010 Danish gaming law did not define backgammon as a game of chance or as a game of skill. It did, however, specifically mention "tournament backgammon" along with "tournament bridge" as games not within the scope of the gaming law. That's nice (or half nice -- there's no exemption for nontournament backgammon.
South Carolina law apparently exempts backgammon from being an "unlawful game":
SECTION 16-19-40. Unlawful games and betting. ... If any person shall play at any tavern, inn, store for the retailing of spirituous liquors or in any house used as a place of gaming, barn, kitchen, stable or other outhouse, street, highway, open wood, race field or open place at (a) any game with cards or dice ... except the games of billiards, bowls, backgammon, chess, draughts, or whist ...but the sentence continues
" ... when there is no betting on any such game of billiards, bowls, backgammon, chess, draughts, or whist or shall bet on the sides or hands of such as do game...."To me that sounds much like the Danish law -- tournament backgammon is O.K., but moneygame backgammon is not -- but I am not a South Carolina lawyer. Is playing for a stake in a money session a "bet"? Maybe not. Is an entry fee in a tournament a "bet"? Maybe so. Oh, and it looks like playing on Sundays is a no-no:
SECTION 16-19-70. Keeping gaming tables open or playing games on the Sabbath. ... Whoever shall ... permit any game or games to be played in his house on the Sabbath day, on conviction thereof before any court having jurisdiction, shall be fined in the sum of fifty dollars ....(4) More often, a law will define "games of chance," games in which the outcome is determined in part by skill and in part by luck. Some test may be specified that is to be applied to determine whether a game is a game of chance. Or as Steve noted, it may be up to a court to determine which test to apply. Such tests seem to take one of three forms:
(a) If there is any presence of luck, the game is a game of chance. I've misplaced the cite, but that seems to be the case with Belgian gaming law.
(b) If luck is a determiner to some "material degree" the game is a game of chance. I gather from my reading that it can be debated what "material degree" means and whether the element of luck in some game meets this test. But I gather, too, that "material" does not mean that luck outweighs skill, but rather that the element of luck is "not insubstantial, or inconsequential." It sounds like a test in which two judges might easily come to different conclusions about the same game.
(c) If luck is the "dominating factor" determining outcome, the game is a game of chance.
Two court rulings that Humphrey cites in his discussion of California law clarifies the "dominating factor" test. California law does not define "games of chance" but a Los Angeles County ordinance did. In one case, the court found that bridge was a game of skill, saying:
"The term 'game of chance' has an accepted meaning established by numerous adjudications. Although different language is used in some of the cases in defining the term, the definitions are substantially the same…. It is the character of the game rather than a particular player's skill or lack of it that determines whether the game is one of chance or skill. The test is not whether the game contains an element of chance or an element of skill but which of them is the dominating factor in determining the result of the game.Humphrey also cites another California case (also, apparently, involving a county ordinance), which said:
"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?"This test leaves it up to a court to weight the relative importance of skill and luck, and like the "material degree" test, seems open to conflicting interpretations. But if bridge -- with its random deal of the cards, and playing the odds, for instance, of a successful finesse (not to mention the odds that the bidding and play at one table earns a top score compared to other tables) -- if bridge meets this test, surely so does backgammon.
In one of the ends of the forks in the other thread, there was a suggestion that backgammon is obviously a game of skill -- a "pure skill-based" game -- because if anyone with some knowledge of the game plays against an opponent making random moves, the random mover is very unlikely to win. That struck me a bit odd, and perhaps I've not grasped the significane of the argument, so I'm glad a similar argument has come up here.
Odd, because (1) decision-making in backgammon is the one part of the game which is entirely skill. But (a) before those decisions are made, random dice rolls partly determine the set of actions available at each decision point, and (b) random dice rolls after the decisions partly determine the success or failure of the decisions taken. And because (2) no one plays competitive backgammon making random moves. And because (3) I don't see this argument successfully meeting, in most cases, the actual challenge that some law about games of chance may present.
But I do think it has some relevance, especially when it's turned around. In other words: a game consists of a series of decision making points -- in backgammon, deciding which pieces to move and which cube actions to take. Let's hypothesize that there is some strategy that might be adopted in making these decisions. One such strategy is to make them at random. Then the question is: is there some strategy that is better than making random decisions? If no strategy is better than random decision-making, then the game is entirely luck!
That's helpful -- roulette, lottery, keno, and the like are obviously not skill games. But the test doesn't say much about the absolute and relative importance of skill and luck. Chess: not a game of chance, no luck at all. Tic-tac-toe: not a game of chance, no luck at all, but very little skill. Blackjack: not a game of chance, but suppose instead of a random decision maker, we suppose a player who follows the very best strategy. Might it not be argued that such a strategy is so simple that luck, not skill, is the "dominant" or "material" factor? Rock-paper-scissors: a game of luck -- no strategy can beat random decision-making. However, I think it can be shown that there is some strategy that can beat nonrandom decision-making. So is rock-paper-scissors a skill game skill or not?
And backgammon: not a game of luck. But is it not-a-game-of-luck like chess? or like tic-tac-toe? Does it matter? Not at all, apparently, in Belgium. Or (for tournament backgammon) in Denmark. But it might, if the test is one of "material degree" or "dominating factor." In which case, I think we have much better arguments for backgammon as a game of skill, than that a player with some skill can beat a player who choose moves at random.
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