ADVANTAGE PLAY AND COMMERCIAL CASINOS

COMMERCIAL CASINOS

Anthony Cabot*

Robert Hannum**

Introduction

Advantage play is a broad term to describe a situation in which a player through some method of play can acquire an advantage over the casino in the context of a gambling contract.[1] In other words, advantage play is where the player can overcome the mathematical advantage that is built into every house-banked casino game. Advantage play is more than a hypothetical question. Some experts believe that advantage players take as much as three (3) percent of all moneys wagered in commercial casinos.[2]

Casino-style gambling[3] involves a contract, which is simply a promise, or set of promises, between the casino and the player.[4] The law provides punishment for the breach of such promises.[5] In the context of casino play, the casino promises to pay the patron a predetermined sum if certain conditions are met. In turn, the patron agrees to place the sum of the wager at risk if those certain conditions are not met. Take slot machine play as an example. After the patron deposits the correct number of coins or tokens and activates the device by pushing the play button or pulling the handle, the major condition to payment of a jackpot is that the reels must come to rest with a winning combination aligned on the payline.

Most gambling contracts, however, have two unusual aspects. The first unusual aspect is that the major condition to the contractual obligations of the casino and the player is determined in whole or part on the outcome of chance, typically a “random” event.[6] Again, using the slot machine example, what determines the placement of the symbols on the payline in modern electronical slot machines is a random number generator within the computer that runs the slot machine.[7] A random number generator is merely an algorithm, or a computer program with a well-defined set of instructions, finite in number, that produces numbers that appear to be random.[8] Each number generated may correspond to a group of symbols on a reel-type machine. Some of these groups are combinations that result in the patron winning and others result in the player losing.[9]

In other games, the random events that determine winning and losing combinations are decidedly less technical. For example in craps, the random event is the roll of two dice; in baccarat and blackjack, it is the shuffle of a standard deck of playing cards; and in roulette, it is the spin of a wheel and the toss of the roulette ball.[10]

A second unusual aspect of a gambling contract is that the economic outcome of the gambling contract, which is based on the random event, almost without exception, will over time favor the casino.[11] This is because an advantage is built into every house-banked casino game.[12] This is typically accomplished by the casino paying less than “true odds” on every bet. For example, in roulette, the true odds of winning a bet on a single number is 37:1 because there are 38 different possible numbers that have an equal probability of coming up. The casino, however, only pays 35:1. Therefore, the casino retains a 5.26% advantage over the player.[13] This also can be expressed as the casino having a 5.26% positive expectation over the player or the player having a 5.26% negative expectation.

Probability is at the foundation of the gaming business.[14] Every wager in a casino is designed and calibrated according to the laws of chance to exact a certain percentage of the players' money.[15] This is how the casino makes money.[16] In the short run, a player may win or lose, but in the long run the total of all players' losses will exceed the total of all players' wins.[17] Mathematicians call this the law of large numbers.[18]

Several reported cases address the legal aspects of advantage play. These cases, however, have resulted in inconsistent decisions on important controversies such as casinos' rights to exclude advantage players and the legality of advantage play. Moreover, the court cases have not resulted in an analytical basis for consideration of the various legal aspects of advantage play.

This article will discuss advantage play in light of different legal and ethical considerations. It focuses on the relationships between the government, the advantage player and the casino in three contexts. The first context is whether the advantage player should receive any protection form the government to allow him to ply his skills without interference or exclusion by the casinos. In other words, should the advantage player have a right of access to the casino as opposed to the casino's right to exclude the advantage player?

The second context is how contract law should be interpreted in dealing with disputes between casinos and players involving advantage play. Here, the primary decision is whether the courts will require or not require the casino to pay alleged winnings to an advantage player.

The third context is whether the government should criminalize certain forms of advantage play.

Not all advantage play shares similar elements. All advantage play can be placed in one of five categories based on the following factors:

1. Is the advantage play consistent with the defined rules of the game?

2. Does the advantage player use information readily available to all players, as opposed to attempting to acquire information not readily available to all players, that would provide an advantage in determining or predicting what was intended to be a random event?

3. Does the advantage player attempt to take advantage of known errors by the casino?

4. Does the advantage player attempt to alter the random event that serves as the basis for the game result?

In light of these factors, the first category of advantage play is when the player uses superior skill in analyzing the game data that are available to all players and where both the players and casinos contemplate the use of such data as part of the contractual relationship. This data is typically covered by the basic rules of the game. This type of advantage play is only applicable to casino games involving some skill. This would include blackjack and video poker.[19]

One court noted that this type of advantage play involves a “highly skilled player who analyzes the statistical probabilities associated with [a casino game] and, based upon those probabilities, develops playing strategies which may afford him an advantage over the casino.”[20] The best and most prevalent example of this category would be the card counter in blackjack who has acquired skill in analyzing the cards played and can then determine when he acquires a theoretical advantage over the casino.[21] In blackjack, the basic rules provide that the player shall initially receive two cards and, based on the value of those cards, make decisions as to whether to hit, stand or take other actions.[22] Therefore, the game rules anticipate that the player will use the data.

The second category of advantage play is when the player uses superior skill in analyzing the data that are available to all players but such data are not part of the basic rules of the game but can impact outcome. An example of this is shuffle tracking, which will be discussed later, where the player predicts the order of the cards in the deck based on the location of the cards in the discard rack and how the dealer shuffled the deck. All the factors necessary to conduct shuffle tracking are available to all players, but the shuffle tracker is attempting to defeat the random event that defines the game. The basic contract between the player and the casino contemplates that the shuffle will be random. Therefore, a player who tracks the shuffle is gaining an advantage outside the basic rules of the game.

The third category of advantage play is when the player takes advantage of the casino's mistakes. This could include errors made by the casino in posting its terms and conditions or by taking advantage of malfunctioning gaming devices that either pay too much or too often. An example of this would be a person that trolls the casino floor at a grand opening seeking slot machines that are mislabeled as to the amount of the jackpot where the error favors the player.

The fourth category of advantage play is where the player acquires knowledge, not typically or readily available to other players, that provides an advantage in determining or predicting what was intended to be a random event. An example would be a blackjack player that is able to learn the dealer's hole card before having to make a decision on how to play his hand.[23] This category of advantage play also is outside the defined rules of play.

The fifth category of advantage play is where the player alters the random event to his favor. Examples of this would be where the player tries to manipulate the dice at the craps table so that they result in a combination that favors the bets placed by the player. Whether this category of advantage play is cheating has been the subject of inconsistent court decisions.[24]

Defining Casino Cheating

Most cheating at casino games is a form of advantage play where the purpose of the cheating is to overcome the mathematical advantage that is built into every house-banked casino game. But, not all forms of advantage play are cheating.[25]

Cheating usually involves one of three major distinct situations.[26] The first two major types of cheating involve criminalizing the player's acts to defeat the major condition of all gaming contracts, to wit, the random event. The first form is to alter the selection of outcome, by eliminating the random outcome of the event that determines the outcome of the contract. Altering the selection of outcome can be accomplished in different ways in different games. More colorful methods may include the use of loaded dice in a craps game or marking cards in blackjack. Switching a prearranged deck of cards with a deck used in the game is another form of this type of cheating.[27] This type of cheating, known as a cooler, usually requires the aid of at least one casino employee.[28] A person also may attempt to alter or misrepresent the outcome of a game or event after the outcome is made sure, but before the casino reveals it to the players wagering on the game.[29] For example, during a card game it is unlawful to switch cards with another person.[30]

Neither the public nor the courts tend to have a problem understanding this basic form of cheating. As one court noted: “The attributes of the game—its established physical characteristics and basic rules—determine the probabilities of the game's various possible outcomes. Changing these attributes to affect the probabilities is a criminal act.”[31]

The second form is to acquire “knowledge, not available to all players, of the outcome of the game or any event that affects the outcome of the game.”[32] Types of this form of cheating include card marking and crimping. A card marker can alter the backs of cards, and figure out the value of the dealer's hole card in blackjack.[33] Knowledge of the dealer's hole card assures the player of an advantage over the casino.[34] Another unlawful activity relating to cards is “card crimping,” which is the act of deforming a card, often by bending the corners, to make the point value of the card readable to the crimper from the back and the face of the card.[35]

A third major form of cheating against a casino is to increase or decrease the amount of one's wager after learning the result of the random event. A skilled cheater can increase or decrease his bet after the game ends. A cheater with a losing hand in blackjack, for example, can “pinch the bet” by palming one chip in the stack wagered. If the cheater adds a chip after learning that he has a winning hand, he pressed or past-posted the bet.[36]

A necessary element to all forms of cheating is the presence of intent. Uniformly, the courts have required scienter or fraudulent intent as an element of cheating.[37]

Types of Advantage Play

Category One Advantage Play: Using Superior Skill in Analyzing Factors Within the Game Rules that Are

Available to All Players

Card Counting

Advantage play is often associated with card counting in the game of blackjack.[38] A card counter is a person who counts the value of cards played to figure out when the remaining cards in the deck are favorable to the player (such as when it contains more Tens than usual), at which point he increases his wager.[39]

Card counters track the value of the cards because as current cards are removed from the deck, the player's chances of winning the remaining hands played from that deck can increase or decrease depending on the cards previously played.[40] This can be measured by adjusting the expectation that the player has of winning future hands. The following table “shows the change in [a] player's expectation from basic strategy by removing one card of each value from a single deck.”[41]

Effects of Removal of Individual Cards[42]

(Change in player’s expectation)

2 3 4 5 6 7 8 9 T A

.38% .44% .55% .69% .46% .28% .00% -.18% -.51% -.61%

Changes in player expectation in the above table reveal that, generally, removing low cards from the deck will increase the player's expectation while removing high cards will reduce the player's expectation. Thus, when a preponderance of low cards has been played and the remaining deck is rich in high cards, subsequent hands will tend to favor the player. Conversely, if a preponderance of high cards has been played, subsequent hands will tend to favor the dealer. These observations form the basis for card-counting strategies. A player keeping track of the cards that have been played can recognize when the remaining deck is rich in high cards, and can then take advantage of the increase in player expectation at these times by increasing the bet size and/or altering playing decisions. When the remaining deck contains proportionally more small cards, the counter will lower his bet. With proper use of such a strategy, a player can achieve a positive overall expectation (i.e., the casino advantage will be negative).[43]

Several reasons exist as to why a deck rich in high cards favors the player such as:

· Naturals are more prevalent.[44]

· The dealer is more likely to bust when hitting stiffs.[45]

· Player double downs are more effective.[46]

· Player splits are more effective.

· Insurance can be effective.[47]

The edge gained by a card-counter depends on several factors, including the number of decks in play, the penetration (how far into the pack cards are dealt before reshuffling), the rules of the game, the bet spread and the system used. A skilled counter will typically have a 0.5% to 1.5% advantage over the house. More decks and shallow penetration (not dealing very far into the pack before reshuffling) tend to decrease the counter's advantage.[48]

Video poker as played in casinos is a game of mixed skill and chance. In a typical video poker game, the player randomly draws five cards from a deck of fifty-two cards and has the option of keeping or discarding up to all of those cards.[49] For each card discarded, the player will randomly draw an additional card from the cards remaining in the original fifty-two card deck.[50] The combination of cards remaining in the player's hand is compared to a pay chart.[51] If the player has any of the required combinations, he is paid according to the pay chart.[52] The skill element involved in video poker is the determination of which cards to hold or discard.[53]

Some casinos offer video poker machines that when played at optimum skill pay back more on average than they would collect. The casinos rely on players not being able to play at optimum skill to insure a profit.[54] Despite this, some players can play at optimum skill and have an advantage albeit slight (about .5%) over the casino.

Progressive Slots

Progressive slots are slot machines in which one or more of the payouts increase by a set amount for each coin or credit played that does not result in the player winning that payout.[55] While slot machines are games of pure chance, on accession the slot machines, typically with progressive jackpots, may provide the player with a positive expectation or advantage.[56] Knowing when a machine with a progressive jackpot provides a positive expectation involves skill.[57] For example, suppose a progressive slot machine has a top payout of $100, and five cents of every dollar bet increases the progressive jackpot. If the player plays the machine for $1 and does not win, the progressive jackpot will increase to $100.05. The progressive jackpot will increase in this way until it is won and will then be reset to its original starting point. If the progressive jackpot increases to a certain point without being won, then the theoretical payout results in a positive player advantage.[58]

This slight statistical advantage is what attracts the [professional] slot teams. [These are organized and financed teams of professional slot players that attempt to exploit those progressive slots that have a positive player expectation.] Only certain progressive slot machines will meet the slot team's criteria. First, the number of slot machines that are linked to the progressive jackpot must be manageable. The team needs to monopolize all the slot machines to avoid the risk that a non-member will win the jackpot.[59] [Second, the slot team must know certain fundamental aspects of the machine including its house advantage and frequency of payout for all reel combinations. Third,] the statistical frequency of hitting the progressive jackpot must be consistent with the slot team's bankroll. No slot team has an unlimited bankroll. Based on probabilities, the team needs to have enough cash on hand to play all the [linked] machines [with the progressive jackpot until one team member] hits the progressive jackpot.[60]

The slot team can use the Poisson probability distribution “to determine the probability of hitting the jackpot over the course of a specified number of plays.”[61]

[The Poisson] distribution [named after the 19th century French mathematician Simeon Poisson] is commonly used to calculate the probability of rare events. [As applied] to gaming devices, the probability of X jackpot hits in n plays [can be computed using the following formula:]

where μ is the average number of jackpot hits over the course of the n plays (or the number of cycles in the n plays), and e is the mathematical constant approximately equal to 2.71828. The value of μ will depend on the particular game and the number of plays, and can be computed by dividing the number of plays in question by the number of plays in a cycle.[62]

To illustrate, consider a 3-reel, 96 stop per reel slot machine with a cycle of 884,736 plays (96 X 96 X 96) and one jackpot combination. This machine will average one jackpot for every 884,736 plays. The probability the jackpot will not be hit over the course of one cycle (μ=1) is:

[63]

“This implies that 63.21% [(subtracting P(0) from one)] of the time there will be at least one jackpot over the course of a cycle.”[64] The probability of no jackpot over the course of any other fixed number of plays can be obtained by replacing the value of μ with the appropriate average as described above.[65] The following table shows the probability of no jackpot being hit on this example machine for a variety of numbers of plays.

Probability of No Jackpot: 884,736-play

Cycle Slot Machine

────────────────────────────────────────────────

(μ) Jackpot

────────────────────────────────────────────────

1 million 1.130 67.7057% 32.2943%

2 million 2.261 89.5708% 10.4292%

3 million 3.391 96.6320% 3.3680%

4 million 4.521 98.9123% 1.0877%

5 million 5.651 99.6487% 0.3513%

6 million 6.782 99.8866% 0.1134%

7 million 7.912 99.9634% 0.0366%

8 million 9.042 99.9882% 0.0118%

9 million 10.173 99.9962% 0.0038%

10 million 11.303 99.9988% 0.0012%

────────────────────────────────────────────────

The probabilities in the table above refer to the behavior of an individual slot machine for which the probability of hitting the jackpot on a single play is a little better than one in a million (1/884,736 = .00000113). Over the course of one-million plays on this machine, the probability of hitting the jackpot is 67.7%, with this probability increasing as the number of plays increases. If several machines are considered, the probability that at least one hits the jackpot during the course of a fixed number of plays will be greater than the probability that one specific machine will hit during this same number of plays.[66] For example, the probability that at least one machine in a carousel of ten of these same type will hit the jackpot during one-million plays on each is (assuming independence) .99998766.[67]

The previous table shows a progressive slot machine that has a cycle of 884,736 and a probability of a little better than one in one million of hitting the progressive jackpot on any given play.

If the probability of hitting the progressive jackpot is one in ten million [as might be the case on a different machine], the slot team would need an astronomical bankroll to have reasonable assurances that it would hit the jackpot before running out of money. Therefore, slot teams avoid the “mega” jackpot progressive that have very infrequent hits or winners. To minimize their potential exposure, they concentrate on progressive carousels that feature lower jackpots with a higher frequency of payouts.[68]

The team can calculate its risks by determining the size of its bankroll, on average how many pays that the bankroll will finance given the machine's pay-outs on the various reel combinations and the probability of hitting the progressive within this number of plays.[69]

Shuffle Tracking

Many commercial gambling games rely on proper randomization to ensure fairness and maintain the desired house advantage or players' win/loss rate. Gaming regulators, for example, acknowledge the importance of randomization in gaming devices such as video poker, slot machines and shuffle machines by requiring that they meet minimum confidence levels on standard statistical tests.[70] Indeed, a primary “regulatory concern is that the device selects the cards or symbols within acceptable levels of randomness.”[71]

In card games, the random aspect of the game is the shuffle of the cards by the casino. This is done either by a mechanical shuffler or by hand. Regulatory authorities usually review and approve mechanical shufflers to assure that the outcome of every shuffle will appear random. Non-machine card shuffles are not typically subject to such regulatory scrutiny. A nonrandom shuffling process may alter the odds of a game, if players can use a predictable pattern inherent in the shuffle process as an advantage play.[72]

Shuffle tracking may allow a player to follow segments of cards through a shuffle and by so doing know roughly when these segments will appear during ensuing rounds of play. If such tracking can be employed in a situation when slugs of favorable or unfavorable cards have been identified in the pre-shuffle pack (for example, in blackjack where multi-deck shoe games are quite common), a player could then utilize knowledge of the slug locations during the play of the next shoe by adjusting strategy and bet sizes accordingly. Such shuffle-tracking techniques are not possible, of course, if the shuffle is random.[73]

Given the absence of empirical study in this area, Bob Hannum, one of the authors of this article conducted research into shuffle tracking theory. Using standard casino playing cards, two professional dealers shuffled a variety of six-deck, two-deck and single-decks. Cards were ordered from 1 to n prior to each shuffle iteration and the post-shuffle position recorded for each card. Thus for each iteration of each shuffle procedure, data consists of the permutation array π(1), π(2), . . . , π(n)), where π(i) is the pre-shuffle position of the card whose post-shuffle position is i.

Six-deck shuffles were chosen to reflect procedures in use at selected major Las Vegas Strip casinos in early 1997. Thirty shuffle iterations were obtained representing six different shuffle procedures (see below for further details). While the data here reflects shuffles executed according to these procedures, inconsistencies exist in dealers' adherence to the house procedure on live games.[74]

A mathematically random shuffle would tend to produce graphs with no apparent pattern. Inspection of the six-deck shuffle plots exposed the striking nonrandom nature of procedures A and F.[75] For procedure A,[76] the similarity of the displays across the twelve iterations suggests that this shuffle is quite predictable. A similar comment can be made for procedure F,[77] though the small sample size of two iterations advises some caution. Given the nature, strength and consistency of the patterns of these two procedures, knowledge of the order of the cards before a shuffle could aid in knowing the order, at least in terms of segments of cards, after a shuffle. The graphs for procedures B,[78] C,[79] D[80] and E[81] reveal a much less obvious level of orderliness. Although these visual representations make clear the nonrandomness of shuffle procedures A and F, a detailed statistical analysis will show that all six procedures fail on most tests for mathematical randomness.[82]

Summary Statistics—Six-deck Shuffles

─────────────────────────────────────────────────────

Shuffle Concordance Table K-W Test Rising Avg. Gap

Procedure Coeff. W1[83] χ2 Value2[84] Statistic1[85] Seq. Size

Avg. R (χ2 Value)

─────────────────────────────────────────────────────

(m=12) 0.932** 4,752.8** 229.7** 25.6** 23.3

(152,469**)

(m=4) 0.798** 211.6** 72.3** 84.5** 82.9

(18,693**)

(m=4) 0.497* 94.8* 20.6* 62.5** 60.4

(12,035**)

(m=4) 0.563** 164.5** 46.0** 78.8** 77.0

(19,354**)

(m=4) 0.776** 586.6** 103.5** 86.5** 84.9

(9,557**)

(m=2) 0.752** 513.7** 85.9** 64.5** 62.4

(15,393**)³ [86]

* p < .05

** p < .01

─────────────────────────────────────────────────────

Given casinos have fixed shuffle procedures, when one such procedure results in a non-random shuffle (particularly as non-random as those in the empirical study cited above) an advantage player could observe, then simulate and study this procedure to determine where specific clumps of cards from the pre-shuffle deck will likely be located in the post-shuffle deck. Once this “mapping” from the pre- to post-shuffle decks has been accomplished, a player can utilize this knowledge as a method of advantage play by predicting when favorable and unfavorable cards will be dealt after the (non-random) shuffle and then varying bet size and strategy accordingly. This “shuffle tracking” method of exploiting non-random shuffles to identify clumps of favorable or unfavorable cards in the post-shuffle deck has been refined to advantage play techniques such as ace prediction, ace tracking, sequence tracking and key carding.[87]

Category Three Advantage Play: Taking Advantage of the Casino's Mistakes

Mistakes in Posting Its Terms and Conditions or Taking Advantage of Malfunctioning Machines

Some advantage players create the advantage by intentionally exploiting mistakes by the casino, its employees or by malfunctioning gaming devices. A good example is the advantage player or team of players that are present on opening nights of any new casino. They understand that errors are most likely to occur when a casino is in the midst of training employees and deploying several hundred or thousand new gaming devices. In an unreported case, a newspaper described the exploits of one such player that began on the opening night of a casino as follows:

He noticed a bank of slot machines where the payouts for the $100 machines and the $1 machines had been mistakenly reversed. Over the course of several hours, he won $27,000 in cash and comps by collecting $100 machine payouts from the $1 machines.[88]

Other advantage players attempt to find slot machines that are overpaying, in other words, those which have defective software or hardware that results in their receiving more coins than they would otherwise be entitled.[89]

Hole-Carding

Hole-carding is a technique used primarily in blackjack to learn the value of the dealer's hole card before the player needs to make a decision on how to play his or her hand.[90] The advantage derived from hole-carding can be more substantial than card counting.[91]

Most hole-carding is done intentionally. One surveillance expert described a typical team that took advantage of a weak dealer.[92] In that case, the team consisted of two people.[93] One person was in the “third base side,” meaning the seat nearest to the dealer's right hand, and the other in the first spot, nearest the dealer's left hand.[94]

Not only was the third base player slouching in his seat, his signals to the other player were simple.

The hole-carder on the third-base side of the game had a stack of green ($25) chips and red ($5) chips. To signal stand, he touched the red (stand/stop), to signal hit, he touched the green (hit/go) and for insurance he tapped the green stack with a chip pinched between his fingers to represent an `I' (insurance). The dealer later was proven to be a weak dealer and not in the group.[95]

“In the case of the player sitting on the third base side, slouching, he was right 74 percent of the time at reading the hole card.”[96] If a person knows the dealer's hole card, the player has an advantage over the casino through having additional information to figure out whether to double his bet, surrender a hand (thus, only losing half a bet), or determining whether to hit or stand.[97] The impact that “hole-carding” has on the house advantage will vary depending on the advantage player's proclivity to correctly identify the hole card and to what advantage he uses the information. If the player knows the dealer's hole card every time and played every hand to maximum advantage, it would result in a 10% advantage over the house.[98] The typical advantage player, however, would not play to maximum advantage because, for example, hitting a 19 against the dealer's 20 would be too suspicious and draw inquiry.[99]

“Shining” is a form of hole-carding where the player learns the dealer's hole card by using any reflective device.[100] This could include a metallic cigarette lighter, a facet on a ring, a polished fingernail, or a small mirror.[101]

While the differences between cheating and advantage play may appear simple, various courts have struggled with the distinction particularly in dealing with certain forms of categories two, three, four and five advantage play. In each case, the ultimate question becomes how far a player can go to exploit a casino's errors, omissions or other vulnerabilities before such activity should be a crime. Category five advantage play, however, would appear to clearly meet all the elements of casino cheating but have still created conflicting court decisions.

Slot Handle Manipulation

While no longer a relevant concern to the casino industry because of advanced technologies, slot handle manipulation was the basis for significant litigation.

The “cherry squeeze” or “handle popping” involved the handle manipulation of mechanical or electro-mechanical slot machines to control the reel alignment.[102] The facts of one case revealed that a player pulled the slot machine handle down two-thirds with his right hand, and then gently hit the handle with his left hand.[103] This activity did not damage the machine. By using this technique, the manipulator stuck two reels on the payout line while the other one was spinning, thus setting the machine up for a jackpot.[104]

In a series of cases involving slot handle manipulation, the Nevada Supreme Court reached surprising decisions.[105] The court held that “handle popping” was not covered by the criminal statute prohibiting the altering of the outcome of a random event because “[t]he physical characteristics and potential pay offs of slot machines are not altered by handle manipulators.”[106]

Dice Sliding

The Nevada Supreme Court did not follow the same reasoning as slot manipulation in a case involving dice sliding.[107] In craps, players are given the opportunity to “toss” two dice that will result in numbers from 2 to 12, although these numbers come up with different frequencies.[108] This “toss” is the random event upon which the gaming contracts between the casino and the players at that table will be decided.[109] In dice sliding, the skilled player is able to slide one or both dice across the table rather than tossing them and allowing them to roll.[110] Thus, a predetermined “roll” may be chosen and the outcome of the game manipulated by the slider.

In Skipper v. State, a dice slider challenged his cheating conviction on the same ground as that raised by the handle popping slot players in the earlier handle popping cases.[111] Claiming that the criminal statutes[112] were unconstitutionally vague,[113] Skipper argued that the statutes failed to alert the average dice player that dice sliding constituted criminal conduct.[114]

The Nevada Supreme Court rejected the argument finding that the rules of craps clearly require a roll of the dice (the random event that is the basis of the contract).[115] As the dice do not roll when they are slid, dice sliding violated the rules of the game and, as such, the average player should be on notice that sliding violates the anti-cheating statutes.

Again, the basis of the crime of dice sliding is that the person intentionally slides the dice to impact the random element of the game.[116] If a player improperly throws the dice so that they slide instead of being rolled, the condition of a random event would not be met, and the dice would be thrown again.[117] The thrower, however, has committed no crime.[118]

Dice sliding should be contrasted with dice setting. The latter is a process by the shooter or thrower in a dice game to exert some control over the numbers that the dice will show after they have been tossed.[119] The concept is that the thrower arranges the dice in their hand before throwing them. By controlling (and standardizing) the motion of the throw, dice setters claim to be able alter the random selection of results to favor certain dice combinations that will give them an advantage over the casino.[120]

Dice setting is different than dice sliding because the dice setter is working within the prescribed rules of play to attempt to influence the roll. The casino prescribed the rule with the belief that regardless of what proper method that the advantage player employs, it will not impact the random-aspect of the throw. In other words, the casino considers dice setting to be more based on superstition than science.

Current Casino Responses to Advantage Play

Because casinos are commercial enterprises, effective advantage players negatively impact net revenues. Some casinos do not take any measures to deal with most advantage players, such as card counters, reasoning that the harm caused does not justify the cost or consequences of taking affirmative action against the advantage players. Other casinos, however, undertake affirmative steps against advantage players where legally available, including criminal arrest, civil exclusion or changing the rules of play. Criminal arrest both removes the advantage player from the casino and serves as a deterrent to other advantage players. As discussed later, this is a limited option that is available only where the type of advantage play employed is specifically illegal.

While some forms of advantage play such as card counting are “not considered cheating, nor . . . illegal,”[121] some casinos routinely exclude suspected advantage players from gaming. These casinos may exclude advantage players at their discretion.[122] For example, no Nevada statute requires casinos to admit suspected card counters.[123]

Allowing a casino to bar advantage players and others has a common law origin. “At common law, proprietors of privately-owned places of entertainment and amusement were not obligated to serve the general public.”[124] In many states, the major gambling establishments were racetracks. Cases involving exclusion of patrons from racetracks have provided substantial support for this common law principle.[125]

Casinos also may counter some forms of advantage play simply by changing the rules of the game. These countermeasures are often statistically designed to reduce or eliminate the player advantage.[126] For example, any advantage created through card counting, of course, is negated when the deck is shuffled. Possible casino countermeasures against card counting include (1) preferential or at-will shuffling,[127] (2) using multiple decks,[128] (3) changing maximum bet or restricting the bet size to the table minimum for new players to the game,[129] (4) having shills occupy all other seats at the table, (5) limiting players to a single wager,[130] (6) prohibiting players from joining game in midshoe,[131] (7) short cut—placing cut card further from back,[132] and (8) using an automatic shuffler or a continuous shuffling shoe.[133]

Technology also has evolved that could allow casinos to achieve advantages over the advantage player.[134] One example is the use of “smart” gaming tables.[135] These tables can use a variety of technologies to track wagers made, cards dealt, and payouts.[136] For example, one smart table can track every card that is dealt out of a shoe in the game of blackjack.[137] This table potentially could be used by a casino to call for a reshuffle anytime the deck favors the advantage player.[138]

Likewise, strategies are available for slot teams that play progressive slot machines with a positive player expectation. One strategy is for the casino to retain the discretion to limit players to playing one machine.[139] “Thus, when a slot team tries to monopolize a carousel, they will need more team members and incur greater expense in doing so.”[140]

Another strategy is

to reduce the increment with which each play of the slot machine will increase the progressive jackpot. If, for example, five cents of every dollar normally goes to fund the progressive, this can be reduced to one cent. This substantially increases the risk to the slot team organizer because he will not receive as much of his money back in the form of the jackpot.[141]

Therefore, the jackpot has to be higher before positive player expectation justifies risking the team bankroll.[142]

How Law and Regulation Address Advantage Play

Protected Right of Access to Casino Games of Advantage Players Have

Advantage players have have attempted to use constitutional and statutory protections against discrimination to create a right to gamble. Advantage players have alleged that their exclusion violates the federal civil rights statutes and the Fourteenth Amendment to the United States Constitution.