Opens Leaving Many Legal Questions Unanswered has opened its doors, allowing players to wager real money on matches of Counter Strike and Half Life 2 Deathmatch, with Day of Defeat to follow soon. The site’s FAQ points to what will be the issue for their viability going forward:

2. What are “games of skill”?
Games of skill, such as those we provide here, are games where the result and outcome are decided purely by the skill of the players involved and not by any element of chance or luck.
Unlike games of chance, skilled gaming is legal in most parts of the world and is determined by the skill of the participants.

While the statement is true, that many jurisdictions do not restrict games of skill, the US stands as a nebulous question in this regard in the wake of the Unlawful Internet Gambling Enforcement Act without the passage of the Skill Games Protection Act.

The questions facing are likely twofold.

1. Are the games they are allowing wagering on “subject to chance”?
2. Are the players “amateur athletes”?

Either of these could place the system well within the crosshairs of the UIGEA. Unfortunately, the answer to either question is convoluted at best.

Subject to Chance

The “subject to chance” language was most likely added to combat online poker, and as most people know, while there is a skill to playing poker, it is still subject to the luck of the draw. Anyone who’s played has probably had a run of bad hands in a row, and that’s just how the game can go. On the converse, you can also have a run of good hands in a row.

First person shooters can have the same effect. Everyone has had one of those rounds where you just spawn in the wrong place every single time. Or one of those rounds where you just seem to get every kill. Or in a game like Counter Strike, there’s always the chance that you get stuck with a horrible team. Or you’re the one dragging behind on an excellent team.

In the grand scheme of things, I would place most FPS games in about the same chance strata as online poker, and given that, they would fall in the UIGEA unless the SGPA passes.

Amateur Athletes

The classification of gamers as athletes is still widely debated. defines an athlete as: a person trained or gifted in exercises or contests involving physical agility, stamina, or strength; a participant in a sport, exercise, or game requiring physical skill.

To me, a gamer is, by that definition, an athlete, even though it is not in the traditional vision of an athlete. For that matter, if you consider professional billiards players or archers or marksmen or curlers athletes, then a gamer is much the same. These are sports of precision rather than brute force or extended stamina.

Why does this matter? Well the UIGEA references “includes any scheme of a type described in section 3702 of title 28.” This refers to the Professional and Amateur Sports Protection Act, which reads:

Sec. 3702. Unlawful sports gambling
It shall be unlawful for –
(1) a governmental entity to sponsor, operate, advertise,
promote, license, or authorize by law or compact, or
(2) a person to sponsor, operate, advertise, or promote,
pursuant to the law or compact of a governmental entity,

a lottery, sweepstakes, or other betting, gambling, or wagering
scheme based, directly or indirectly (through the use of
geographical references or otherwise), on one or more competitive
games in which amateur or professional athletes participate, or are
intended to participate, or on one or more performances of such
athletes in such games.

In short, it is illegal to bet on sports online. Therefore, if these games are considered “sports” online, and then it would be illegal to bet on them. Since Athlete is undefined in the act, it comes to the “common meaning” of the term, which arguably does include gamers.

These are just my humble estimations on the matter. or any similar site would need to retain counsel to examine their individual situation more closely. Of course, the Skill Games Protection Act may change the playing field, so to speak, of online gambling. We will have to wait and see.

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About Mark Methenitis

Mark Methenitis is an attorney in Dallas Texas. Mark received his Juris Doctorate and his Master of Business Administration from Texas Tech University and his Bachelor of Arts from The University of Texas.

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