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Opinion

Skill or chance: what does it take to play poker in Fran ce?


ince one single French court recently ruled that poker is not a game of chance, the whole world believes this is the French position on the matter. However, this decision is a mistake. Firstly, because of the nature of the court that gave the verdict. Secondly, because of the criteria that were used to base the decision on and, thirdly, because the judge ignored the terms of both the 2010 Act regulating the French online gambling market ('the Act') and of a 1983 law on games of chance ('the 1983 Law'). The Toulouse Coult French law relies on the 'dominant factor' test to assess if a game that mixes skill and chance is to be prohibited or permitted. On 20 July 2011, a court in Toulouse described
poker as a game of skill. However, let us bear in mind that this only constitutes a first step in the judicial proceedings our attention should be focused on the next levels, either on the Court of Appeals or the French Supreme Court
(Cour de Cassafion).

Hold'em Poker is a game of chance and, for others, it is a skill game. Therefore, how do we know if skill predominates
on chance? ln the US case of Pennsylvania v Dent1, the judge considered that poker is a game of skill, just like the Toulouse Cour1. But, when the North Carolina Courl of Appealwas involved, in the Joker Club v Hardin'case, it ruled that the Texas Hold'em Poker is a game of chance using with the same rule, the dominant factor test. This varying case law on the predominance test shows it is not a safety rule so the next French court that will have to decrde a similar case can change its opinion about the nature of the Texas Hold'em Poker.

The law lf we look at $ 24 of the 2010 Act, offering games of Texas Hold'em Poker requires the approval of the ARJEL, the
French gambling regulator. When the website operates

without approval, the operator is breaking the 1983 Law The 2O1O Act also adds another level as it sanctions the
gambling websites and gambling houses equally. Further, $ 2 of the 2010 Act is dedicated to the predominance test and implies that Texas Hold'em Poker is a game of chance under French law. To conclude, we will need to wait for a dectsion from the Court of Appeals io know if French jurisprudence considers the game of Texas Hold'em Poker as a game of skill. ln the meantime, the French Supreme Court and the 2010 Act have both established that poker is a game of chance - at
least for now.
Matthieu Escande Member of the Advisory Board and Lecturer
Betforce.com Universit6 Paris I Panth6on-Sorbonne matihieuescande@yahoo.f r 1. Commonwealth of Pennsylvania v Watkins and Dent (2009 Pa. Super.). 2. Joker Club v Hardin, 92, 97 , 643 S.E.2d 626 (N.C. App. 2007).

This recent case law goes against established legal principles: on 28 May 1930, the French Supreme Court qualified poker as a game of chance. Therefore, the decision of the Toulouse Court is not exactly representative of French law. ln this respect, it is highly probable that superior courts will decide that Texas Hold'em Poker is a game of chance.

The 'dominant factor' test


French law describes a game of chance as one -where chance is the dominant factor. The judge needs to use the so-called predominance test to determine this. ln the present case, the Defendant used the testimonies of a Professor of mathematics, of a French bridge and chess champion and of one of the French Texas Hold'em Poker champions to demonstrate that there was more skill than chance involved in any poker game. This has important legal consequences. lf poker is not a game of chance, crrminal law cannot be used because, in French law, three elements should be present for it to be applicable: O a stake; O an expectation of profit; and the presence of chance. As the first two elements are material, the judge will have no difficulty finding they are present. However, the third element is based on subjective criteria. When the game combines skill and chance, the judge must decide which (if any) element predominates. This rule can easily be bypassed because, as said before, it is subjective and each judge may reach a different verdict. So, for some, Texas

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world online gambling sepiember 2011