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Contracts and Poker: Rules of Interpretation

by Scott J. Burnham |  Published: Apr 10, 2019

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An astute reader questioned something I wrote in my column on Solver Charts and Apps (Card Player Vol. 32, Issue 6). I wrote that the TDA rules did not prohibit paper solver charts (guides to which hands to go all in when short-stacked). He pointed out that TDA Rule 4 clearly states, “Betting apps and charts should not be used by players with live hands.” Was I mistaken? The rule provides in full:

4:  Electronic Devices and Communication

Players may not talk on a phone at the table. Ring tones, music, etc. should be inaudible to others. Betting apps and charts should not be used by players with live hands. Other devices, tools, photography, videography, and communication must not create a nuisance and are subject to house and gaming regulations.

Let’s look at this rule in light of the rules for drafting contracts. First of all, in contract drafting, language that obligates you to do something includes the words “must” and “shall.” Language that gives you the discretion to do something or not includes the words “may” and “should.” Therefore, when a rule says that you should not do something, as this one does, it is cautioning you not to do it, but it is not prohibiting you from doing it. If the TDA wants to prohibit apps and charts, it ought to use stronger language.

Secondly, to understand the meaning of words, we have to look at the context in which the words are used. The context of this rule includes the caption of the provision, which is “Electronic Devices and Communication.” It is not easy to determine the weight to be given to captions in construing rules. In statutes, that is, laws enacted by legislatures, captions are generally given no weight because they are usually not in the bill that is passed by the legislature and signed by the governor; they are added afterwards by an administrative body.

With contracts, however, the parties generally draft the captions as well as the rest of the contract, so they should be given more weight when it comes to understanding the meaning of the words in the rule. In this case, the TDA clearly drafted the captions as well as the content of the rules, so we can assume that they meant the captions to have some weight.

Finally, ambiguous language has to be construed to determine its meaning. The caption “Electronic Devices and Communication.” Is ambiguous because it is not clear whether it is referring to two different things – (Electronic Devices) and (Communication) or two things that are modified by one adjective – Electronic (Devices and Communication). The ambiguity is that under the first interpretation, the communication would not have to be electronic, while under the second it would. Each interpretation is equally reasonable. Which was intended?

An interpretive device that is often used to construe the language of contracts is the rule expressed in Latin as noscitur a sociis – to understand the meaning words, look at the accompanying words. Here, the entire provision contains these rules:

Players may not talk on a phone at the table. This rule clearly applies only to an electronic device.

Ring tones, music, etc. should be inaudible to others. This rule also clearly applies only to electronic devices.

Other devices, tools, photography, videography, and communication must not create a nuisance and are subject to house and gaming regulations. This one is admittedly not so clear about what it refers to. Maybe the authors of the rule weren’t sure either. It was probably written at a time when the various devices contemplated could not all be found on a phone or a watch. Recall for example, that when Gus Hansen was writing his interesting book Every Hand Revealed, he had to get up from the table and speak into a hand-held recording device in order to reconstruct the action. That behavior would undoubtedly fall into the rule.

Note that this sentence contains the only reference to “communication” in the rule. Whatever it means, I doubt it applies to oral communications, and Phil Hellmuth would probably not violate it by yelling across the table to his wife, “I can dodge bullets, baby.” In any event, given that so many of the neighboring words relate to electronic devices, it is likely that all the devices and communications referred to are electronic.

Let’s see if we can put this all together to see if the rule prohibits the use of a paper solver chart. We are clearly not talking about an “electronic device.” And we don’t seem to be talking about a “communication” either, because communication would generally be understood to require at least two people – one on either side of the communication. So it would appear that whatever meaning we give to the caption, it does not cover the use of paper solver charts. Nor does any other language in the rule seem to apply to devices or communications that are not electronic.

So I stand by what I said: this rule does not prohibit the use of paper solver charts. Nevertheless, is a TD likely to ignore all this legal stuff and do as my reader did and take the language out of context? Of course. And that is probably not such a bad result. But if the TDA wants to have rules that are easy to understand, then the captions should be consistent with the content of the rules, and when behavior is prohibited, the rule should use clear language of prohibition. ♠

Scott J. Burnham is Professor Emeritus at Gonzaga Law School in Spokane, Washington. He can be contacted at profburnham@yahoo.com.