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Contracts and Poker: Fouled Hands

by Scott J. Burnham |  Published: Oct 20, 2021

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A faithful reader asked my opinion about a ruling that came up in his local casino:

“After the flop, the only players still in the hand were seat 4 (BB), seat 5, and seat 9. On the turn, seat 4 bet and seat 5 raised all-in. Seat 9 folded and tossed his cards in toward the center, but his cards slid too far and stopped when they just touched seat 5’s cards, which were positioned normally in front of him. Seat 4 snap-called. The dealer immediately stopped play and called the Tournament Director over to explain what happened."

“The TD’s decision was that although seat 9 did not purposely discard his hand into seat 5’s, and seat 9’s cards were able to be drawn back out again with 100% certainty, Seat 5’s hand was declared dead and seat 5 was not allowed to take back his all-in bet. No more cards were allowed to be dealt, and the pot was awarded in full to seat 4. Furthermore, the TD said it would have made no difference if seat 5 had used a card protector, since cards from one hand touching another immediately kills both hands.”

Is the TD’s ruling correct?

Tournament Directors Rule 65 is on point:

65: Accidentally Killed / Fouled / Exposed Hands

A: Players must protect their hands at all times, including at showdown while waiting for hands to be read. If the dealer kills a hand by mistake or if in TDs judgement a hand is fouled and cannot be identified to 100% certainty, the player has no redress and is not entitled to a refund of called bets. If the player initiated a bet or raise and hasn’t been called, the uncalled amount will be returned.

The first admonition is that players must protect their hands. Often players do that with a card protector (also called a card cap), which can be a cool one like a fossil or the one my son got me. If you don’t have a cool one, a chip will do, This should prevent the dealer from accidentally sweeping your hands into the muck, but as the TD in our question pointed out, it won’t necessarily prevent your hand from being fouled by another hand.

When my law students would ask about the proper application of a rule, I suggested that they first ask, “What is the purpose of the rule?” Obviously, the integrity of the game can be compromised when cards are fouled by being mixed with other cards or when cards are accidentally thrown into the muck – how do you know which cards belonged to the player?

The problem of identifying which cards belonged to the player is addressed in other rules. Rule 13B, which addresses the problem of a hand that is accidentally mucked, says that to have a claim at showdown, the hand must be “100% retrievable and identifiable.” Rule 14, which addresses cards that are discarded face down, says the cards can be tabled if they are “100% identifiable and retrievable.” Rule 15, which addresses the situation where a player prematurely discards thinking he has won, says that cards “not retrievable and identifiable to 100% certainty” are dead. Rule 65 says the hand has to be “identified to 100% certainty.” When drafting contracts and regulations, it is always a good idea to use the same words if you mean the same thing. Although they are worded differently, I think the intent of all these rules is the same – to assure that each player’s hand can be clearly identified.

WSOP Rules 108 and 109 are similar, except that in the WSOP Rules, “[a] protected hand is defined as a hand sitting on the table surface with a card cap (see Rule 112) placed on top of the hand.”

Note that the rules do not say a hand has to be 100% uncovered or 100% visible – it just has to be 100% identifiable. So, for example, if seat 9’s cards were thrown under or over seat 5’s cards, but it was still clear which cards belonged to seat 5, then even though the hand was fouled, it can still be identified to 100% certainty.

Therefore, it seems to me quite clear that the TD misapplied Rule 65 in this situation. Seat 5’s hand should not have been declared dead. When cards touch each other, the hands are not automatically dead if, as in this case, the player’s cards are identifiable.

But wait – there’s more! Assume for a moment that the TD’s ruling was correct. Rule 65 concludes: “If the player initiated a bet or raise and hasn’t been called, the uncalled amount will be returned.”

Here, seat 5 initiated a raise. Seat 9 then folded and fouled seat 5’s hand, so at that moment seat 9’s hand was dead, and according to the TD’s ruling, seat 5’s hand was dead as well. Since the hand was over at that point, it was too late for seat 4 to call the all-in. Therefore, according to that part of the rule, seat 5 should have had the amount of his uncalled raise returned.

Note also that seat 5 was totally innocent in this situation; the fault lies with seat 9. Rule 68 states: “When folding, cards should be pushed forward low to the table, not deliberately exposed or tossed high (‘helicoptered’).” Although stated as what a player “should” do, it seems reasonable to me to treat this as a rule that players must follow. Therefore, a player such as seat 9 should be penalized for violating this rule. Recall that a penalty can be a warning. Therefore, if the act was unintentional, a warning would be a sufficient penalty, but if a player intentionally or recklessly fouls the hand of another player, that player should receive a stiffer penalty. ♠

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