The court in Szczecin has recently issued a judgment in the broadly publicized case of poker players. In 2011, a group of acquaintances met in a rented restaurant to play an informal poker tournament in order to celebrate the organizer’s birthday. The participants were detained by the Central Bureau of Investigation – under the Polish provisions playing poker for money is permissible only in casinos, in other places it constitutes a criminal offense. The court found the organizers and participants guilty; some of them were sentenced to a fine and in the case of the others, a conditional discontinuance of proceedings was decided.
The key aspect to this case was the court’s determination that the participants engaged in playing poker, and poker is – according to the Gambling Act – a game of chance.
In this regard, an interesting practical problem arises – the issue of determining “chance”. The Gambling Act lists some games – including poker – explicitly as games of chance (and thus covered by the regulations), but apart from this it proposes that every game that fulfills the following criteria be considered a game of chance:
Games of chance are games over money or material prizes whose result depends, in particular, on chance and whose rules are specified by the game regulations.
This leads to the question – how should we interpret the expression: “whose result depends, in particular, on chance”? Where are the boundaries of “chance” in a game or competition? This is not an abstract question: while in the case of “ordinary” competitions there are no particular legal restrictions (they can be conducted quite freely), the situation is different entirely in the case of games of chance. The Polish Gambling Act, adopted in reaction to the so called gambling affair, is very restrictive: organizing games of chance is generally contingent upon obtaining the prior permission of authorities, e.g. Director of the Customs Office. For this reason, providing a clear answer to whether a given game is a competition or a game of chance is vital for anyone who organizes such games – media, advertising agencies and interactive agencies, but also for numerous web start-ups.
It turns out there are various interpretations regarding the matter of chance. There is, for example, an opinion that the chance factor, and not the player’s abilities, must be a prevailing element of a game in order for the game to be considered a game of chance. The administrative court in Poznań in a judgment of March 5, 2013, (I SA/Po 964/12) described it as follows: “a chance must constitute a key factor that impacts the game’s results. The occurrence of any given chance element in the course of the game does not decide that such game will be a game of chance; chance elements must constitute a basic factor impacting the game’s results and be present in the game by definition.”
The courts sometimes interpret chance a bit differently: “a game of chance is a game in which physical or mental capacity have no impact on the result. This means that both a player making the worst choice out of all options and a player making the best choice have equal chance to win, since the game is based solely on chance” (judgment of the Supreme Administrative Court of 10.02.1998 r., II SA 1260/97). This definition seems rational – it sensibly shows what the chance entails.
However, there is also a view that a game of chance is such a game that simply features an element of chance. It is sufficient that, for example, some stages of the game include an element of chance (even if everything else is an “ordinary” competition). A certain court considered as random such competition in which the prize was awarded to a person who provided the correct answer in a specific order (e.g. every fifth correct answer won). It was determined that in such an event the participant has generally no influence on when other persons will provide their answers to the questions in this competition – and thus this aspect is random.
According to media reports, the judge providing an oral statement of reasons for the judgment in relation to the poker players indicated that “dealing cards is completely random. This stage, however, impacts the result, so the game fulfills the prerequisites of a game of chance.” Such expressions (it’s curious whether they’ll be included in the written statement of reasons for the judgment) constitute another modification of the “chance threshold” and most probably a novelty in Polish decision-making.
If one was to think about it further, if we adopt this approach every game or competition will be random. A “random” dealing of cards is also a part of bridge and no one considers bridge as a game of chance. Each sports competition includes an element of randomness – such as wind direction in ski jumping or the coin toss at the beginning of a football game. If we’re organizing knowledge competitions and provide for a limited number of prizes (e.g. “the first 10 correct answers win”), it is up to chance who finds out about the competition earlier than the others. In more extreme cases, it could be said that internet competitions of this kind do not check the participant’s reflexes, but the speed of the participant’s internet connection. There is also one decision of the Supreme Administrative Court that regarded an SMS competition with prizes for some of the first provided correct answers as a game of chance. The court determined that analogies in this context between gambling games and physical or mind games are not admissible, but did not explain this position in further detail.
In this respect, there are many more problems – is a game “random” if a random persons get a chance to take part in a game or does the chance element emerge only during the game itself? Does selecting random questions for participants in a TV quiz entail the randomness of the game as such? There are simply no clear answers in Polish law to these questions. On the other hand, a dash of common sense and applying moderation when classifying certain acts as random are highly recommended.