On Tuesday, Bill Rini wrote a great piece entitled “Who to Blame for Black Friday?” In it, he illustrates the “**wink, wink, nudge, nudge**” proposition that online poker has allegedly been from its inception and argues that, technically, you and I are to blame for Black Friday and its aftermath “because we didn’t demand better. We didn’t demand more transparency. We didn’t ask the right questions.”
I think that sounds good and is true in the sense that we each have to account for the decisions we make. But, I’m not sure it’s altogether accurate. And here’s why:
I’m a consumer. I’m not a marketing guru or a poker professional. I’m a mother who often makes purchasing decisions for my family on everything from what I buy at the grocery store, to clothes, cleaning products, entertainment decisions, and everything in between.
I’m not an expert and while I have the capability to research every decision I make, I generally trust what my local HEB is selling, as well as what’s marketed to me on the tube or radio, and in the newspapers and magazines I read. Even better, is when I get a recommendation from a friend. If it comes from someone I know, trust, and like, that’s pretty much where my business is going. It might not be the right way to make purchasing decisions, but it’s how I (and a vast majority of the US population) make such decisions. It’s also why marketing – like poker – is a multi-billion dollar industry.
Couple that purchasing behavior with the fact that I didn’t get into online poker in a real (serious) money way until 2009, well after the UIGEA made its big splash in 2006. The way I heard about where to play online poker was from sources like ESPN (marketed as “The Worldwide Leader in Sports”), where I could watch my favorite pros play in the WSOP and then see commercials for sites like PokerStars and Full Tilt. Not only were the ads shown on a respectable news channel, they were endorsed by the faces I’d see in those ads - my favorite pros like Daniel Negreanu and Phil Ivey (among many others).
In the face of the UIGEA, the roster of pro players for those sites only grew, and came to include well respected “regular” people, like Orel Hershiser, Dennis Phillips, and Chris Moneymaker, and well known celebrities, like Jason Alexander and Don Cheadle. As noted by Phil Ivey in his lawsuit against Full Tilt, “the great poker players have become celebrity figures….The celebrity status attributed to these poker players is akin to the celebrity status of professional athletes.” Not surprisingly, such people sell product.
To top it off, the Poker Players Alliance, whose mission it is to “establish favorable laws that provide poker players with a secure, safe and regulated place to play,” touted in a very straightforward fashion that the UIGEA “does not make it illegal for people to play [poker] on the internet.” (emphasis added).
So what’s a gal like me to do?
Rini argues that players like me “didn’t care.” Even in the face of scandal and fraud, “[n]umbers just keep going up.” He continues, “[a]s the money became more and more staggering in nature the online poker sites began to exert more and more power.” And everybody from the online sites, to the pros, to the television, online and print media in between rode that boom. And they rode it on the backs of people like me.
But here’s the thing – as Hunter Bick points out in this post for Drag the Bar – the UIGEA doesn’t even mention poker players. “It only mentions payment processing for financial institutions. It stipulates that financial institutions cannot lawfully process ‘unlawful internet gambling’ transactions. However, the law never defines what ‘unlawful internet gambling’ is, what games it applies to, nor does it provide any guidance whatsoever for what ‘unlawful internet gambling’ even means.”
I guess what I should have done was get a legal opinion before I played real money poker on the internet. Surely, that's what the PPA and the online sites and the pros (at least the ones with agents) did...right?*
As an attorney I’ve practiced municipal law, which in Texas often deals with open government and how governmental bodies deal with laws like the Texas Open Meetings Act. One important facet of the law deals with how such bodies make decisions. As you might expect, it’s often easier for a school board or city council to make decisions behind closed doors - less questions, and all that. But the law says, no, if it’s a matter of public business, then the public has a right to know about it.** To remain in compliance, the board or the city council will first ask their attorney for a written opinion before going into closed session. I would bet really good money that something very similar happened here for organizations like the PPA, the online sites, and likely many pros.
As just your everyday, average joe poker player, I didn’t know I should’ve been asking for one, too.
I agree that Black Friday will ultimately create a more regulated, and hopefully favorable, online landscape for players in the future. But, please don’t blame me and other players for Black Friday and its aftermath. A law was on the books and it was either not enforced by the Department of Justice, or it was not adhered to by the sites it sought to regulate, as it should’ve been.
Given all that, I believe blaming me for Black Friday is like blaming the mother whose child dies after eating an e-coli laced burger from the Jack and Crack dollar menu, or like blaming the owner of the 2007 Toyota Highlander Hybrid for the car accident on the I-5 when his brakes fail.
I don’t obtain a legal opinion before I buy a burger, much less a car. So please, Mr. Rini, don’t blame me.
If, however, blame must still be apportioned...the lawyers might be a good place to start.***
* Full disclosure, I looked for news stories, tweets, and/or other resources to support the assertion that sites like Full Tilt and PokerStars (and/or their shills) relied on such opinions from their hired guns. I did not find any. If you think it’s because there aren’t any, please leave your contact info in the comment section below because I have a bridge in Brooklyn I’d like to sell you.
** Section 551.144(c) of the Texas Government Code provides that: “[i]t is an affirmative defense to prosecution…that the members of the governmental body acted in reasonable reliance on a…written interpretation of this chapter in an opinion of…the attorney for the governmental body.”
*** To be fair, as I said at the beginning of this piece, we each are accountable for our own actions and the "I didn't think I needed a legal opinion to play" is overly broad/simplistic. The truth is (as most people know), ignorance of the law is no defense. The problem here is that the law does not clearly speak to us as players. It's for that reason that I think Mr. Rini's argument is somewhat misguided. Otherwise, I like and agree with much of what he has to say (particularly his thoughts on player apathy re cheating, collusion, and other player misbehavior).