By Eliot Jacobson, Ph.D.

The saga of the 14 gamblers who won $1.5 million from the Golden Nugget in Atlantic City by exploiting un-shuffled cards in mini-baccarat continued this week. In case you missed the story, in April, 2012, these 14 players (the “Atlantic City 14″) noticed that the cards being used on a mini-baccarat table were un-shuffled. As a consequence, they won 41 straight hands. This week presiding judge Donna Taylor once again ruled in favor of the casino finding that the game was illegal as played.

Early on in the dispute, casino owner Tilman Fertitta offered to let the Atlantic City 14 keep their winnings if they would drop their other claims against the Golden Nugget, including illegal detention and racial discrimination. I have no idea what these players experienced during their detention, but clearly they collectively felt that their claims were worthy of rejecting the settlement offer.

However, there is another way to view Fertitta’s settlement offer. What if this group had viewed the $1.5 million as a settlement for their claims of illegal detention and racial discrimination, provided they drop their claims for their baccarat winnings? From this perspective, to accept Fertitta’s offer, they would only need to conclude that their baccarat winnings were not legitimately earned. The key task for them was to find an affirmative argument based on which they could demonstrate that a valid game of baccarat had been played.

Up until the Phil Ivey vs. Crockford’s case was resolved last October, it would have been reasonable to assume that if the Atlantic City 14 were legally seated at the table, playing by the rules and conditions offered by the casino, using the cards and other equipment provided by the casino, then an implicit contract had been made and they should be able to keep any money they won. But the final ruling in the Ivey/Crockford’s case changed everything. What Justice John Mitting ruled was that,

“It was not simply taking advantage of error on her (the dealer’s) part or an anomaly practiced by the casino for which he (Ivey) was not responsible. He was doing it in circumstances where he knew that she and her superiors did not know the consequences of what she had done at his instigation. This is, in my view, cheating for the purpose of civil law.”

This was a precedent setting ruling. Players could be found to have cheated (in a civil sense) at gambling even though they were playing by the policies and procedures set by the house, using the cards and equipment supplied by the house, and did not consider what they were doing to be cheating at the game. Justice Mitting’s argument was at once both stunning and reasonable. It was stunning that Mitting did not hold Crockford’s accountable for the deficiencies in their operations. It was reasonable when considered in the context of cheating at social games like chess and bridge.

For example, if you were playing chess and your opponent forgot to place his queen on the board, you would either point out the missing queen, or when your opponent noticed it, you would offer to restart the game. Anything less and you could reasonably argue that no game had taken place. Likewise, in bridge, if the cards were dealt in order from an un-shuffled deck, the players would likely throw in their hands and ask for a re-shuffle. In other words, for social games, everyone expects the games to be played in the manner in which they were intended to be played.

The line for cheating set by Justice Mitting and Judge Taylor appears to move casino gambling into the living room, as a collegial game played friends. In other words, the casino is now an equal participant in a social game over which the gambler is not supposed to be able to gain an undue advantage when he observes that the game is not being operated within its natural boundaries.

In the case of the “Atlantic City 14,” they certainly recognized that they were not supposed to know the exact order of the cards in the remainder of the shoe. Common sense would have lead them to consider the equivalent of such knowledge to be cheating at any social game. If the legal test for cheating at a casino game (in a civil sense) is that it is comparable to cheating at a social game, then the Atlantic City 14 cheated at mini-baccarat and the Golden Nugget should not have to pay. If the Atlantic City 14 had reached this conclusion, they would be $1.5 million dollars richer today.

These precedent setting cases are going to make a huge difference in settling similar disputes going forward. The next big test is the edge sorting lawsuit between the Borgata and Phil Ivey. Things are moving fast. It is unclear where the line will finally be drawn to separate advantage play from cheating. The future of advantage play hangs in the balance.

Eliot Jacobson’s new book, “Advanced Advantage Play, Beating and Safeguarding Modern Casino Table Games, Side Bets and Promotions,” is now available from Amazon.com. It is the first book to give in-depth coverage to advanced methods such as edge sorting.

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