Phil Ivey Files Argument in Borgata Appeals Case

Phil Ivey’s lawyer, Louis Barbone, filed a legal brief in the US Third Circuit Court of Appeals in Philadelphia which suggested players should be able to “flip the odds” on the house at times. Louis Barbone filed the brief as part of Phil Ivey’s appeal in the Borgata lawsuit over edge-sorting.

In the document, Barbone argues, “Gambling is nothing more than a competition between house and player where each vows to utilize its respective skill, acumen and expertise in outwitting the other.”

In the 2012 baccarat sessions, Phil Ivey and another player gained an advantage over Borgata in Atlantic City due to knowledge that the playing cards had a flaw which made baccarat more predictable. By exploiting perks given to high-rollers by casinos, Phil Ivey was able to use “edge-sorting” techniques to stack the deck in his favor.

Playing at $50,000-a-hand, Phil Ivey and Kelly Sun won over $3 million during a May 2012 baccarat sessions. Several months later, when Borgata lured Ivey and Sun back to the casino for baccarat at $100,000-a-hand, the pair predictably collected over $6 million in winnings using edge-sorting.

2012 Borgata Edge-Sorting Sessions

Phil Ivey argued that Borgata offered inducements to him and his friend because the casino believed they had a decided edge in the game — so they could expect to win back their money with another, bigger baccarat session. Ivey sees nothing wrong in a scenario where he can flip the script on the casino; it’s not his fault Borgata did not spot the flaw in the purple Gemaco cards.

The problem is, a US District Court judge ruled that Phil Ivey broke a contract with Borgata by playing without informing the casino that the cards were flawed. While the judge said Ivey did not commit fraud and he did not cheat, breaking the contract meant the game was null-and-void and therefore he had to pay back the millions he won.

Ivey Owes $10.1 Million

The amount Phil Ivey owes is $9.6 million plus $500 thousand given to him in comps by Borgata — ultimately $10.1 million. For its part, Borgata used the New Jersey judgment to file a motion in a Nevada court to let the casino go after Phil Ivey’s assets in Nevada.

Whether that happens is anyone’s guess, though usually the appeals process plays out before a plaintiff collects their money. At the same time, Borgata is owned by MGM Resorts. Nevada courts, much like New Jersey courts, tend to be sympathetic to the desires of casino companies, because the laws are written to benefit such big local businesses.

Anthony Campione Card Counting Case

In his court filing, Louis Barbone made reference to a 1989 case involving card counting. An excerpt from the Anthony Campione case stated, “[T]hose who, by resorting to mirrors, confederates, electronic equipment, magnets, tools, or other devices, alter the play of the game or machine to increase their prospects of winning, would have no difficulty understanding that they are cheating within the definition of the statute.”

“In contrast, consider the gaming patrons who are especially gifted and can increase the odds in their favor by ‘card counting.’ Or perhaps the patron who notices and takes advantage of a dealer’s habit of play that will occasionally provide an unintended view of the dealer’s cards. Unquestionably, neither category of patron would be subject to prosecution under the statute, although casino management may take measure to deny them the right to play. In both cases, the players simply exploit what their skills and the play of the game will afford them.”

Edge Sorting Is Not Illegal

One could replace the term “card counting” in the quote with “edge sorting” and it would sum up Phil Ivey’s stance. Edge sorting is not illegal, so it is absurd in the Hall of Fame poker player’s mind that Borgata can sue for the $10.1 million it lost.

In Ivey’s mind, Borgata enjoys a considerable advantage against players, so if a player can find a way to gain an advantage without cheating, Borgata should be willing to stand by the results of the game.

Does Phil Ivey Have a Chance?

A notable gaming lawyer recently said he believed Phil Ivey has a 50/50 or 60/40 chance of winning his appeals case. Those who’ve followed cases over the past few years should know that the casinos and gaming operators almost always win their legal cases.

Furthermore, appellate cases do not tend to go the way of the individual player. If they lost their original case, the appellate judges tend to confirm that decision. If the individual won their original case, then the higher court tends to overturn that decision.

Phil Ivey makes good points. He did not cheat and he did not break the law. None of that will matter if the Third Circuit Court of Appeals determines Phil Ivey broke a contract with Borgata.