Poker Skill Elements Receive Boost in Dutch, German Court Rulings

2nd February 2014 // Legal News, News

Poker’s growing recognition as a game of skill has received a boost this month in two separate court rulings in Europe. In the Netherlands, an upper-level Dutch court has reaffirmed an earlier ruling that a small, semi-private tourney was not illegal under Dutch gambling law, while in Germany, a middle-level administrative court (similar to an appellate court) has reversed a lower-court ruling that held poker tourney buy-ins to be gambling wagers.

The Netherlands case in particular is good news for fans of poker. The case in question had bounced around for about seven years, following the arrest of the owners and operators of a €10 re-buy poker tournament at Amsterdam’s Café de Viersprong Bussum.

The cafe’s owners, Richard Blaas and Rene Kurver, were finally vindicated last week, though the damage had long since been done: their cafe had been shuttered by police following their 2007 arrest.

The pair’s attorney, Peter Plasman, also figured in an earlier Dutch case where poker’s skill elements also played a role. That was the 2010 prosecution of Dutch pro player and tourney organizer Steven van Zadelhoff, who was charged with similar violations of the country’s gambling codes. Plasman appears to have drawn on his experience (and prior expert testimony) from the Zadelhoff case in winning acquitals for the former cafe owners, though he has cautioned in several public interviews that the issue remains unsettled, and verdicts are likely to be issued on a case-by-case basis.

As Plasman told a European PokerNews site in connection with the case, “The fact that two different courts came to the same conclusion might make the prosecutor say that it’s time to halt bringing people in front of the criminal court. That is to me a sound reasoning, but I can’t be sure.”

In nearby Germany, home to one of Europe’s most vibrant and numerous poker-playing populations, another “good for poker” ruling has emerged. This case involved the country’s recently updated Interstate Treaty on Gambling, which has gone through multiple rewrites in the last decade. The case in question specifically addressed a €15 administrative fee that was being charged on a satellite tournament to a larger poker event being held in the neighboring Czech Republic.

This one was a trickier sort of question, because it involved one of the three traditional legal prongs of gambling activity (consideration in the form of a direct wager) as used in many Western countries, but the court ruled that the fee in question was not a wager.

The recent decision came to light in a brief update on the DLA Piper gaming blog, which noted that this is the second such German legal ruling affecting entrance fees in recent months. The earlier ruling, dating from October of last year and affecting German fantasy sports leagues, appears to have employed similar legal logic. However, as the DLA Piper scribe Patrick Schwarzbart duly noted, the full text of this latest decision has yet to be released — which may include identification of the case’s defendant, who appears to a be a woman in Lutherstadt, Wittenberg. (Wittenberg is a German state.)

Here’s the text release of the German case, taken directly from the German court’s press release on the case, and as translated by Google:

Mere participation fee makes poker tournament is not for pecuniary gambling

The Federal Administrative Court in Leipzig has ruled today that a poker tournament in the variant “Texas Hold’em” at any rate not gambling within the meaning of § 284 of the Penal Code and § 3 para 1 State Treaty on gaming is when of the players only a participation fee € 15 is required which covers only the cost of events. The applicant held in Central Germany poker tournaments in the variant “Texas Hold’em”. She wanted to perform in June 2010, a so-called qualifying tournament in Lutherstadt Wittenberg, which was open to participation by anyone and its winners – apart from low-cups – the free participation opened to other tournaments where larger gains were in prospect.

The defendant city Lutherstadt Wittenberg said the tournament on the grounds that it was a forbidden gambling. Was unsuccessful, the applicant brought an action to the grounds of which recited, among other things, the participants had to pay a participant fee of € 15 addition, any cash use, so it was only a question an amusement game. The Administrative Court dismissed the action on the grounds that a mere participation fee is a fee for obtaining a chance of winning, because it would open the way to obtaining profits. On the appeal on the applicant, the Federal Administrative Court that judgment and remanded the case to the Administrative Court. Although there is a gamble if a fee is demanded for obtaining a chance of winning the participants.

For this purpose, but not enough any monetary payment required is rather that the fee is being demanded for the chance to win, so that there is a necessary connection between the payment and the chance to win. It at a mere participation fee is lacking in any event, if so exclusively or predominantly the event costs are covered. Because the administrative court has not yet been clarified whether the requested payment by the applicant fulfills these conditions, the case was remitted to the Administrative Court.

BVerwG 8 C 26.12 – Case of 22 January 2014 Lower court: VG Hall 3 A 124/11 – judgment of 11 June 2012