Andriy Fomin, an attorney at Barristers LLP: "The courts have ruled that poker is not a game of chance"

Poker has come a long way in its struggle to secure its place among other sports and has emerged victorious. The courts have finally recognized poker as a game of skill. Poker is now included in the register of recognized sports in Ukraine.

The Ministry of Youth and Sports of Ukraine has recognized competitive poker as an official sport. The relevant provision is contained in Order No. 3780 of the Ministry of Youth and Sports dated August 16, 2018.

This is good news for all fans of the game in Ukraine. In general, poker is rightly considered one of the most popular card games in the world. People gather at special clubs where they can play their favorite game, and such poker clubs are completely legal and operate successfully in many countries around the world.

In Ukraine, the situation regarding poker prior to August 16, 2018, was ambiguous: For some time, poker in Ukraine was quite popular, recognized as a sport, and completely legal; it was later banned and classified as a game of chance. In recent years, competitive poker in Ukraine has generally been in a semi-legal, ambiguous status. This legal uncertainty regarding poker allowed law enforcement agencies to react inconsistently—on a “case-by-case” basis—to the organization and conduct of poker tournaments, which created fertile ground for corruption.

The History of Attempts to Regulate the Status of Poker

If we trace the rather complex process of recognizing poker as a sport, the first regulatory document governing the status of poker in Ukraine was Order No. 261 of the State Committee for Youth Policy, Sports, and Tourism of Ukraine dated February 7, 2001, No. 261, which recognized competitive poker as a sport not included in the Olympic Games program.

During the period from 2008 to 2009, given the government’s active opposition to the gambling industry and the debate surrounding a bill to ban the gambling industry, the question of whether poker constitutes a game of chance or is a distinct sport was also brought to the forefront. During that period, poker was temporarily included in the list of sports recognized in Ukraine, effective until March 1, 2010.

On May 15, 2009, the Law of Ukraine “On the Prohibition of the Gambling Industry in Ukraine” was adopted, and on June 15, 2009, by Order No. 2021 of the Ministry of Ukraine for Family, Youth, and Sports, competitive poker was definitively included in the list of sports recognized in Ukraine, with poker being included in that list indefinitely.

On October 2, 2009, following a discussion on ensuring compliance with the requirements of the Law of Ukraine “On the Prohibition of the Gambling Business,” the Cabinet of Ministers of Ukraine adopted a protocol decision obligating the Ministry of Ukraine for Family, Youth, and Sports and the Ministry of Justice of Ukraine to ensure the revocation of the state registration of departmental acts under which certain types of games of chance, in particular poker, are classified as sports competitions, and to report the results to the Cabinet of Ministers of Ukraine by October 7, 2009.

Pursuant to the aforementioned resolution of the Cabinet of Ministers of Ukraine dated December 9, 2009, the Ministry of Justice issued Order No. 2403/5 and revoked the state registration of paragraph 4 of section 1 of Order No. 2021 of the Ministry of Ukraine for Family, Youth, and Sports dated June 15, 2009, No. 2021, “On Amendments to the List of Sports Recognized in Ukraine,” which had included poker in the list of sports.

Thus, it was determined at the state level that playing cards for money constitutes a game of chance, despite the significant differences between poker and games of chance, and disregarding the fact that poker requires certain psychological skills and expertise that come only with playing experience, as well as knowledge of mathematics.

Legal Disputes Regarding the Recognition of Poker as a Sport in Ukraine

In January 2010, the All-Ukrainian Public Organization “Sports Poker Federation of Ukraine” and the All-Ukrainian Public Organization “Poker Federation of Ukraine” filed an administrative lawsuit with the Ministry of Justice of Ukraine to protect their rights, seeking to have Order No. 2403/5 of December 9, 2009, “On the Repeal of the Decision on State Registration of a Regulatory Legal Act,” declared illegal and invalid.

Case No. 2a-102/12/2670 was considered by the Kyiv District Administrative Court over a period of three months through written proceedings, and following the review, on April 2, 2012, the court issued a ruling fully granting the administrative claim and declaring the Ministry of Justice’s decision to revoke the inclusion of poker in the list of sports to be unlawful and invalid.

Based on the results of the case review, the court reached the following well-reasoned conclusions.

Pursuant to Part 2 of Article 1 of the Law “On the Prohibition of the Gambling Business in Ukraine,” a game of chance is any game in which participation requires a player to place a bet that offers the possibility of winning a prize, and the outcome of which depends entirely or partially on chance.

Order No. 76 of the Ministry of Family, Youth, and Sports “On the Procedure for Recognizing Sports in Ukraine,” dated April 28, 2005, establishes that a sport is a form of competitive activity that has historically evolved over time, characterized by specific training and competition conditions, a set of established actions and methods of athletic competition (athletic technique and tactics), and competition rules (regulations).

Consequently, the court found that poker is an intellectual sport, in which participants compete against one another according to established rules in their ability and skill to calculate various mathematical probabilities and odds of winning in each individual hand and in the competition as a whole, and to correctly assess the tactics and strategies of other opponents, and therefore, adherence to the rules of the sport does not constitute a violation of the Law of Ukraine “On the Prohibition of the Gambling Business in Ukraine,” and consequently, poker is not a game of chance.

The Ministry of Justice appealed the ruling of the Kyiv District Administrative Court through the appellate and cassation proceedings, but the appeals were dismissed by rulings of the Kyiv Administrative Court of Appeal dated August 16, 2012, and the Higher Administrative Court of Ukraine dated April 25, 2013.

In its ruling of April 25, 2013, the Higher Administrative Court of Ukraine found the conclusions of the courts of first and appellate instance to be well-founded and agreed with them that sports poker is an intellectual card game (not a game of chance) in which players compete against one another according to rules approved in accordance with established procedures, demonstrating skill and expertise in calculating various probabilities and odds of obtaining a winning combination, as well as in assessing the opponent’s tactics and strategy; sports poker does not require players to pay any funds as a mandatory condition for participation in the game, nor does it involve receiving winnings or prizes of any kind. In accordance with the rules of the game and its purpose, sports poker does not fall under the definition of “gambling”; it is not, by its very nature, a game as defined in the Law of Ukraine “On the Prohibition of the Gambling Business in Ukraine.”

Indeed, poker is distinguished by the fact that winning is not a matter of chance; it depends directly on such qualities of the player as logic, a mathematical mindset, sound judgment, and psychology. The ability to correctly calculate all possible combinations in the game in advance, a subtle knack for bluffing, as well as concentration and control over the game in poker provide a tremendous opportunity to win; to a certain extent, the principles of poker are similar to those of chess.

Competitive poker differs in that players play against each other. There is no dealer, and players do not lose their own money. The game is played exclusively for the prize pool. Typically, 2 to 10 people play. Poker in this form is a good, non-gambling alternative to roulette and slot machines.

Thus, the court definitively established poker’s place among other sports. However, poker clubs continued to operate semi-legally for more than five years, since, despite court rulings, poker was not included in the register of recognized sports in Ukraine until the Ministry of Youth and Sports of Ukraine issued Order No. 3780 on August 16, 2018.

What does the recognition of poker as a sport mean for Ukraine?

It means that thousands of fans of this spectacular and globally popular sport will be able to participate in various tournaments completely officially, and the organization and conduct of poker tournaments will be entirely legal. Many sports television channels will also have the opportunity to broadcast poker tournament series, run advertisements, and generate revenue from them. This presents an opportunity to develop specialized gaming tourism in various cities across Ukraine by hosting poker tournaments. Furthermore, recognizing poker as a sport will reduce the risk of corruption surrounding the organization and conduct of poker tournaments, given its legal status; it will create conditions for taxing activities related to the hosting of poker tournaments, and consequently lead to increased revenues for the State Budget.

Although the criteria and rules for determining which poker competitions will be considered a sport have not yet been established, and the possibility of using the Internet to organize and conduct poker competitions has not been taken into account, Ukraine has the opportunity to become a venue for poker tournaments of various levels, and participants in such tournaments will have the opportunity to compete legally.