The movement to legalize Internet gaming has come mainly from the U.S. House of Representatives, most notably from Barney Frank (D-MA). Frank has so much seniority and the Democrats have such a large majority, that he can get any bill he wants through the House. But to become law, it must also pass the Senate, and be signed by the President. Barack Obama will not veto a bill from the Democratically controlled Congress.
Which means everything depends upon having someone shepherd a bill through the Senate.
That shepherd has finally arrived. On August 6, 2009, Sen. Robert Menendez (D-NJ) introduced his “Internet Poker and Games of Skill Regulation, Consumer Protection, and Enforcement Act,” S.1597, the “i-Poker Act.”
Although designed to be a companion bill to Frank’s proposals, the i-Poker Act is both more and less.
It goes into much greater detail in every area, especially in areas of protection for the general public and compulsive gamblers. Yet, it authorizes only “an Internet-based game in which success is predominantly determined by the skill of the players, including poker, chess, bridge, mah-jongg, and backgammon.”
Where the i-Poker Act first runs into trouble is in defining poker. I have testified as an expert witness on what is, and what is not, poker. It’s not easy. But it is certainly not this:
“The term ‘poker’ means any of several card games that are commonly referred to as poker; that are played by two or more people who bet or wager on cards dealt to them; in which players compete against each other and not against the person operating the game; and in which the person operating the game may assess a commission fee or any other type of fee.”
Having seen how “the game commonly referred to as bingo” has resulted in unending confusion under the Indian Gaming Regulatory Act, I suppose I should thank Sen. Menendez for helping to make so much work for lawyers.
The i-Poker Act creates another great make-work project for gaming attorneys. The bill would exempt from licensing any game of skill that is now “not regarded as gambling under an applicable provision of State or Federal law . . . .” Nobody knows what that would mean for a state like Colorado, where a jury ruled that poker was not gambling because it was predominantly skill, but the trial judge then decided that in future cases no evidence on skill versus chance would be admitted.
The i-Poker Act is clear in some areas. For example, no one will be able to set up a club filled with terminals for online poker play.
What about overseas operators who stopped taking bets after passage of the UIGEA in 2006? Both bills contain language that looks like it was designed to exclude foreign operators.
Anyone who failed to file a required federal or state tax return cannot be licensed. And there is no opportunity to cure the mistakes. So, if someone finds an obscure state tax form that should have been filed for “doing business” in that state, the web operator is barred forever.
On the other hand, the i-Poker Act has language absent in the House bills, declaring that an operator who files an application within the first 90 days cannot be denied a license on the ground that it took online poker bets from the U.S. In fact, this language looks like even operators who are still aiming their poker sites at the U.S. market can be licensed.