Wednesday, September 7, 2011

Responsible for Black Friday...who me?!

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.***

[1]* 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.

[2]** 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.”

[3]*** 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).


  1. Good points, PL. I liked Bill's post, especially the way he (in my view) accurately characterizes how the industry & news sites operated -- for the most part -- over the last decade. I will say, though, that like you I had an instinctive "who me?" reaction throughout while reading it.

    I thought about how I'd pulled moneys off both AP & UB immediately after the AP scandal broke (in late 2007) -- i.e., well before the applesauce at UB. And how I'd written posts arguing others should do the same. And how from time to time I'd call out other improprieties in online poker on my blog, where only I have full editorial control.

    I thought about my role as someone who has done a lot of writing about poker for other sites, too, and how even within the affiliate-driven world of "so-called poker media," I felt I'd done well, generally speaking, to avoid contributing too greatly to the sort of ethically-dubious cheerleading that characterized a lot of poker writing.

    And like you, I thought about how as a player/consumer, my personal "blame" or responsibility for Black Friday was minimal at best. So I played at U.S.-facing sites. So what? I mean, hey, we're not samurais…. :)

    That said, I still think Bill makes a good point about how "we didn't demand better," even if circumstances were such that it was really hard to do so.

    When I first started playing online (in 2004), I felt entitled in many ways -- to a fair game, to fast payouts, to responsive support, everything. It took a while, but eventually the reality of online poker caused me gradually to let go of all of that. The passage of the UIGEA, the scandals, the increasingly sketchy regulatory framework, and other factors accelerated the change in both my experience with online poker and my attitude towards it, making me feel less and less as though I had a "right" to any of that stuff.

    And so, as Bill suggests, I came to accept a lot less from online poker. I still don't think I'm to "blame" (necessarily) for Black Friday, but I do see where Bill is coming from when suggesting how player apathy was not an insignificant factor here, helping prop up the sites to create the mess that resulted in BF.

    Thanks for the post.

  2. The post went through multiple drafts and in previous revisions was much, much more critical of the poker media, the PPA, and other people who knowingly turned a blind eye.

    However, we, as players, shoulder some responsibility too. PL, you say you got involved in 2009? Didn't it seem funny that all of these American focused companies were operating offshore? Didn't the bounced checks and other financial problems ring any alarm bells that something might not be quite right?

    But therein brings in the circular logic and synergy created when people collectively decide to turn a blind eye.

    We didn't think about all of these issues with online poker sites because the poker media spoke about them as if they were perfectly legal. The PPA told us online poker wasn't illegal so we could rest even more assured that we weren't doing anything wrong. And the gaming commissions seemed perfectly okay letting regulated rooms offer poker to US players so it must be okay, right?

    But all it would have taken is one party to stand up and say "Hey, if online poker is legal and the poker rooms respect US laws, can someone please explain why Stars and Tilt are offering online poker in Washington State where they have a specific law that makes online poker illegal?"

    All it would have taken is the players or the media or the PPA or the regulators or someone to stand up and ask questions.

  3. Thanks for the comments Bill and Martin. I respect you both. And, I agree with you both.

    I think just as my argument is a little simplistic, the counterargument of “all it would have taken is …[for] someone to stand up and ask questions” is also simplistic (and this is coming from someone who, arguably, might have been best suited to do just that – a lawyer – and I didn’t…so, take my counterpoint musings with a grain of salt).

    I believe many individual players did ask questions. I know I did. I did it because I had my folks and my family asking me if it was actually ok to play online poker.

    Since I can’t readily get an audience with Rick Perry (my governer), or my mayor, or chief of police, I did the only other thing I could think of. I looked online. First, I looked up online gaming laws in Texas. Nothing on point. Then I looked up case law on the issue. Also, nothing on point.

    Granted, I didn’t look very hard. But I did look. As a side note, I play in a home game with a Texas State Representative. Guess what – he plays online poker, too! (Well, he did before Black Friday).

    Armed with that, AND in the face of the PPA specifically touting that it’s not illegal to play online poker, what else am I, an individual player, supposed to do?

    I guess I should have abstained from playing online. In reality, that's probably the only thing that would have effected change. And then only if every other online American player did the same.

    Instead, though, I deposited money because I wanted to play. And, I had no trouble doing so.

    The only time I ever had a check bounce from an online site was AFTER Black Friday (that said – if you’ve seen any of my other posts, you know I’ve done a whole lot more depositing than I ever did withdrawing).

    I’m not a poker forum troll or groupie (appropriate term?). I also didn’t play at AP/UB once I learned about the cheating scandal.

    Moreover, I’m not a pro or a known commodity in the poker world. In all honesty, how much credence would a question, a request, a DEMAND from someone like me been given?

    Are poker players an apathetic lot? Sure (as are people in general). Do I believe in the Margaret Mead quote (“Never doubt that a small group of thoughtful, committed citizens can change the world. Indeed, it is the only thing that ever has.”)? Absolutely.

    But to lay responsibility for Black Friday and its aftermath on the backs of the players is pushing it. (Also, I recognize that’s not what you did. Instead, you did a very nice job of painting everybody (“players, journalists, employees of the poker rooms, site owners, affiliates, regulators, or whatever”) equally with the blame brush, which is fair, but is just not as sound bite-y as implying “It’s your fault”). And that’s the only reason I responded with my own sound bite-y counterpoint.

    I agree with you. Everyone could have done more. But wouldn't you also agree with me that the “more” that individual players like me could’ve done, is much different than the ­­“more” that someone like a name pro or a paid journalistic shill or the PPA could have done?

    Looking back, as I did in the immediate aftermath of Black Friday, I wish more people, particularly those in the poker media, would have been more willing to voice an opposing point of view. It seems
    a few did. Sadly, it wasn’t enough.

    The bottom line, however, is that I agree with you and Martin. We all must demand more and here we, all of us, did not.

    As a result, I respectfully request we blame Canada.

    And for the record, I hope that none of my arguments have been taken as personal attacks. No personal attack was, or is, intended.

    I'm on a writing mission and this got some juices flowing.

    Now, I feel as though I'm part of a meme.

  4. Instead of blaming my fine country, you should become a true high-roller and move up here . . . so you can play online poker. I figure you'll have a lot of fun until your government finally regulates the poker industry.

    -PL, Canadian division

  5. @Shrike: Blaming Canada is easier. :-)

    @PL: I see your points, however, I did not just lay the blame on player's backs. I spread it out over the entire industry.

    And obviously, the complete newbies don't know better but my blog is aimed at poker industry people and people beyond the novice level of player. If someone is reading my posts about how money moves around the backend of an online poker room or how action flops decrease rake collected by the poker room, I'm assuming that that person has more than a passing interest in online poker.

    But there are still way too many people going around and stating with no caveats whatsoever that online poker is not illegal. That means we still haven't turned the corner on educating people. We still need to do more.

  6. @Bill: That means we still haven't turned the corner on educating people. -> It would be nice if the mass media would finally start doing that but we all know that doesn't sell too well nor does it get much attention. It only ever gets much feedback when something bad happens ;)

    Of course we need to do more, but this has to be done in a constructive and reasonable way ... and that is the biggest problem in our current society (if you wanna blame someone, that is an accurate target). If we are honest with ourselves and do whatever we can, it is not up to us what others make out of it as long as we can live with the consequences.

    We need to establish independent news media that is not in some way connected to obligations, some might already exist but it takes some time before those voices will get heard.

  7. @zedamaster: I wish it were that easy :-)

    For news sites that do not take affiliate money from poker rooms:


    But to be honest, my biggest pet peeve in all of this are the number of supposedly sophisticated poker players pretending not to know. People who wrote volumes on sites like 2+2 about all of the legal twists and turns all the while claiming that online poker is 100% legal. After BF many are angrily going around and saying that it's Full Tilt's fault or the DOJ's fault or this or that person's fault. Never do they accept the blame for not using some common sense.

    Then there are the poker journalists (and the poker media, in general) who are now coming out and calling Full Tilt out when they wouldn't have dared written a sour word against them before BF when Full Tilt checks were keeping them gainfully employed. They knew poker was illegal. They just didn't write about it.

  8. @Shrike - if I was actually any good at poker maybe I'd give that a try! Canada's beautiful.

    @zedmaster - I'll echo what Bill said about Subject:Poker. I think @HokesHouse and his radio program (ShortStackedRadio) is a good resource as well, but I can't vouch for how they're funded.

    @Bill - your clarification re your blog being aimed at "poker industry people and beyond the novice level of player" makes sense. That's why I found the lumping in of all players to be a little misguided and over broad (which I've already kinda said ad nauseum, but I think you get my drift. Plus, I hope I made clear that I totally got that you hadn't laid entire blame on players's backs - and said as much).

    For most casual players, though (like my Mom and some of my girlfriends who played real money poker occasionally online but who wouldn't know "2+2" meant anything but "equals four"), their information about playing came from what they saw on TV. They're not using HUDs and studying strategy, and most didn't even know about the AP/UB cheating scandal, much less the UIGEA.

    I see the culpability, though, in that if we're using our credit cards online, use some common sense and know what you're getting into (in my Mom's case, any real money she has online has come from what she's earned from free money play points on Bodog - she's a non-HUD using beast).

    For many such players, a DOJ shut down is irrelevant, which...if I think about it, I guess kinda of proves your point as to sophisticated players. Out of the thousands that played online, though, I would wager that more were the fish than the sophisticated sharks. Of course I have no data to back that up.

    I also believe/concede from personal experience that individuals can have a much bigger voice through social media avenues then we've ever had before and that's awesome. Hopefully after this experience we will all (players, media, and pros, alike) do better, be better, and, yes, demand better.

    I'm really glad you posted what you posted, Bill, and I appreciate the exchange here.

  9. The concept of the film itself is very attractive and fascinating, and AK had given all his experience in the manufacture of the same sample on the screen later.

  10. @Bill "Didn't the bounced checks and other financial problems ring any alarm bells that something might not be quite right?"

    As myself and others noted during the discussions about the Reid bill, the vast majority of people having problems were playing on Full Tilt.

    One of my savvier cohorts started a poll in the Zoo (I didn't know how), and the ratio of people having problems on FTP versus PokerStars ran at about 10 to 1.

    So, it was obvious even then that Full Tilt was coming apart at the seams. PokerStars players didn't have this on their radar, and, as it turned out, didn't need to in the same degree.


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