Wanted : the legal status of poker in France

Publié le 06/11/2011 par Thibault Verbiest, Geoffroy Lebon

Since a ruling of July 20th, 2011, the status of poker in France is become somewhat uncertain what is not to displease the actors of the gaming industry working to challenge the characteriza-tion of game of chance.

The French online gaming specialists are stirred, the poker would not be a game of chance any more.

Indeed, the last July 20th, the judicial judge rejected for the first time this qualification. However, it is traditionally used by the French courts  and the legislator .

Therefore, this ruling of the Toulouse criminal Court runs counter the French tradition and raises questions about the true legal status of poker.

The abandoning of the qualification of game of chance

The organization of gambling in France is based on a general prohibition except special dispensation expressly provided by the law.

Pursuant to settled case law , recently enshrined in Article 2 of the law No. 2010-476 of 12 May 2010 , is a game of chance the game where chance prevails over skill.

Now, poker fanatics dispute the assimilation of this game to a game of chance. According to them, the outcome of the game mainly depends on the skill of players. For some time, this view tends to be systematically defended in court in support of notably mathematic and scientific studies related to the course of the game of poker.

In 2009, the Court of appeal of Versailles was not convinced by that argument which was based on excerpts from several books on the “Texas Hold’em” and its variants .

Nevertheless, the analysis of this case demonstrates any sensitive grounds of the Court suggesting the relevance of the exposed defence and the difficult of the judges to conceal some consideration to the arguments that resulted from it.

On the other hand, the Court of Toulouse was less suspicious because it ruled that poker is not a game of chance on the basis of three testimonies bringing to light the relativity of chance in this type of game (regularity of the best players’ results, the importance of the intrinsic qualities of the players as the technique or the cunning).

What legal status for the game of poker ? 

It follows a certain consensus of the first instructions of the trial of the criminal Court of Toulouse . This case law should be construed as labelling the poker as a skill game.

This construction would necessarily impact on the recent opening up of the French online gambling market in which the poker is one of the concerned sectors but also on the effective application of common law in respect of the game of poker such as the contract law.

It seems on the other hand to carry less consequence in the tax matters where the administrative judge already held that the principle of non-taxation of gains from games of chance was not applicable to the poker .
However, Toulouse judges did not expressly mention that the poker is a skill game. They simply stated that all pieces of evidence “brought the conviction to the Court that poker called “Texas Hold’em” is not a game of chance”.

Consequently, would we not consider poker a sport ? This qualification is far from being superfluous when we really take into consideration the environment of this game.

Succeeding in poker events (WSOP, WPT, EPT…) requires a preparation and commit-ment phase at least as substantial as that of top athletes . Furthermore, in some coun-tries such as Lithuania poker is recognized as a sport.

Besides, in the absence of definition of the sport and physical activity concept in the Sport Code , nothing seems to directly oppose the election of poker as a sport. Moreover, chess is regarded as a sport in France . As for bridge, the qualification of sport has been denied on the sole ground that “practiced primarily as a leisure activity that involves the intellectual abilities, [it] does not tend to involve physical performance” .
As a result, the Toulouse Criminal Court’s decision brings new perspectives to poker which are of interest for the International Federation of Poker that endeavors for several months to prove that poker is an intellectual sport.

The French online gaming specialists are stirred, the poker would not be a game of chance any more.
Indeed, the last July 20th, the judicial judge rejected for the first time this qualification. However, it is traditionally used by the French courts and the legislator.

Therefore, this ruling of the Toulouse criminal Court runs counter the French tradition and raises questions about the true legal status of poker.

1. THE ABANDONING OF THE QUALIFICATION OF GAME OF CHANCE

The organization of gambling in France is based on a general prohibition except special dispensation expressly provided by the law.

Pursuant to settled case law , recently enshrined in Article 2 of the law No. 2010-476 of 12 May 2010 , is a game of chance the game where chance prevails over skill.

Now, poker fanatics dispute the assimilation of this game to a game of chance. According to them, the outcome of the game mainly depends on the skill of players. For some time, this view tends to be systematically defended in court in support of notably mathematic and scientific studies related to the course of the game of poker.

In 2009, the Court of appeal of Versailles was not convinced by that argument which was based on excerpts from several books on the “Texas Hold’em” and its variants.

Nevertheless, the analysis of this case demonstrates any sensitive grounds of the Court suggesting the relevance of the exposed defence and the difficult of the judges to conceal some consideration to the arguments that resulted from it.

On the other hand, the Court of Toulouse was less suspicious because it ruled that poker is not a game of chance on the basis of three testimonies bringing to light the relativity of chance in this type of game (regularity of the best players’ results, the importance of the intrinsic qualities of the players as the technique or the cunning).

2. WHAT LEGAL STATUS FOR THE GAME OF POKER ?

It follows a certain consensus of the first instructions of the trial of the criminal Court of Toulouse . This case law should be construed as labelling the poker as a skill game.

This construction would necessarily impact on the recent opening up of the French online gambling market in which the poker is one of the concerned sectors but also on the effective application of common law in respect of the game of poker such as the contract law.

It seems on the other hand to carry less consequence in the tax matters where the administrative judge already held that the principle of non-taxation of gains from games of chance was not applicable to the poker .

However, Toulouse judges did not expressly mention that the poker is a skill game. They simply stated that all pieces of evidence “brought the conviction to the Court that poker called “Texas Hold’em” is not a game of chance”.

Consequently, would we not consider poker a sport ? This qualification is far from being superfluous when we really take into consideration the environment of this game.

Succeeding in poker events (WSOP, WPT, EPT…) requires a preparation and commit-ment phase at least as substantial as that of top athletes . Furthermore, in some coun-tries such as Lithuania poker is recognized as a sport.

Besides, in the absence of definition of the sport and physical activity concept in the Sport Code , nothing seems to directly oppose the election of poker as a sport. Moreover, chess is regarded as a sport in France . As for bridge, the qualification of sport has been denied on the sole ground that “practiced primarily as a leisure activity that involves the intellectual abilities, [it] does not tend to involve physical performance” .

As a result, the Toulouse Criminal Court’s decision brings new perspectives to poker which are of interest for the International Federation of Poker that endeavors for several months to prove that poker is an intellectual sport.