With millions of dollars at stake, casinos faced tough questioning about whether their games were fair — but it wasn’t clear who will ultimately win the jackpot.
BOSTON (CN) — Blackjack players who claim they were cheated out of tens of millions of dollars by Massachusetts casinos appeared to face better odds in arguments Wednesday before the state’s highest court.
The court heard two class actions claiming that many players were unknowingly steered into a variant where they got a payout of only 6:5 for a blackjack — an ace along with a 10 or face card — instead of the traditional payout of 3:2.
On a $20 bet, that’s the difference between winning $30 versus $24. Over hundreds of thousands of hands, the differential amounts to as much as $30 million a year for the casino operators, the players claim.
The state gaming commission argued in an amicus brief that what the casinos did was OK under its rules, but the rules are anything but clear.
“What we have here is a mess,” said Justice David Lowy, who was frustrated by the rules’ apparent inconsistency.
Several of the judges focused instead on fairness to the player.
“To the unsuspecting causal blackjack player, they would be completely unaware that the stakes are stacked against them,” complained Justice Serge Georges.
“I’m not James Bond,” added Justice Scott Kafker. “I don’t know all the rules when I show up at the table.” Kafker then asked doubtfully, “Is this a distinction that players know and understand? It seems like inside baseball.”
A state judge sided with the casinos in one of the cases below, and in the other a federal judge sided with the gamblers.
The federal judge then certified the question to the Massachusetts high court so it could issue consistent rulings in both cases.
The rules provide for a standard version of blackjack with a 3:2 payout and a “6:5 variation” in which other factors (such as the number of decks used, splits and insurance) are more favorable to the gambler. But they also suggest the possibility that a casino can pay 6:5 odds without playing the 6:5 variation, which is what was done by the Encore casino near Boston and the MGM casino in Springfield.
That’s unfair, argued the gamblers’ attorney, Joshua Garick. “If you’re going to change the rules, you have to give something back to the player,” he said.
He also argued that, even if the gaming commission were correct, the casinos still had to post an explanation for what they were doing, which they didn’t.
“There are 61 pages of rules,” observed Kafker. “That’s gonna be a big felt.”
Garick said that a summary of the rules just had to be in plain sight, such as on a placard.
The casinos’ attorney, Wayne Dennison of Brown Rudnick in Boston, argued that it was obvious to the player how many decks were being used, so the player “can make an informed choice.” He also noted that the gaming commission had approved the table layouts.
Lowy worried that “there’s a greater unfairness going on” because the casinos were offering the 3:2 game at higher-stakes tables and so steering people with gambling problems to more expensive games that they couldn’t afford.
Lowy asked Garick if the judges needed to defer to the gaming commission. Garick replied that “lazy deference” wasn’t appropriate because the commission’s interpretation was “absurd” and “just doesn’t make sense.”
“Why would you have a game with rules for 6:5 if you didn’t have to follow them?” he asked.
Kafker observed that the gaming commission “said in its brief that just posting the odds is enough. I’m not sure I’m convinced by that.”
But Kafker had another concern. If the court held for the players, he asked, how would it fashion a remedy? “Is every blackjack table taped?”
Dennison replied that, “I assume there are videos available that show gameplay. But you point out an enormous discovery problem.”
At one point in the argument Dennison, who was appearing remotely, lost his connection and disappeared.
“That will make my job easier,” quipped Garick.
“You like those odds better?” asked Justice Elspeth Cypher.
“Sorry,” said Kafker as the court paused the proceedings to resolve the technical glitch. “We’re not letting you play solitaire.”