Luck vs Skill
Backgammon on the Boardwalk
|From Backgammon Times, Volume 3, Number 1, Winter/Spring 1983.|
The continuing battle between backgammon and America's legal system was waged this time in Atlantic City, New Jersey. The purpose of the Superior Court trial was to determine the legality of backgammon tournaments in the state. Caesar's Regency Boardwalk, one of Atlantic City's titan casinos, joined forces with American Backgammon Championships with the hope of scheduling a major tournament at Caesar's in March of 1981.
What follows is an account of backgammon's day in court. The central figures in the account need little introduction: Paul Magriel, possibly the best backgammon player in the world, served as expert witness; Henry Wattson, promoter of the world's largest tournaments, testified on backgammon's behalf; Nicholas Casiello, Jr., the dynamic attorney who had seen through the legalization of Atlantic City craps tournaments, was representing Caesar's and ABC; and myself, Backgammon Times's editor.
We walked jauntily to the courthouse that morning after Magriel and Wattson had their conference with Casiello. The three seemed optimistic, although it was not difficult to sense their underlying anxiety. As we walked against the light across Atlantic Avenue to the courthouse, Wattson japed, "How come jaywalkers have that run-down feeling?"
The tension, at least for the moment, was eased.
Casiello, who works for the firm Horn, Kaplan, Goldberg and Gorny, had clerked for the judge we were going to meet in a few moments.
The Honorable Philip A. Gruccio, Assignment Judge of the Superior Court of New Jersey, was fond of Latin, according to his former clerk. Scarcely missing a beat, Magriel started to rehearse pronouns in the first three declensions, which he followed with several impenetrable fragments from Cicero. (Magriel's backgammon is fortunately better than his Latin.)
We sat in the courtroom staring at the greyish beige walls, waiting for Judge Gruccio to appear. Carol M. Henderson, a Deputy Attorney General of the State of New Jersey, was already there conferring with her assistant. In this particular trial, the state was the defendant and Caesar's was the plaintiff.
Henderson, like Casiello, a product of Seton Hall Law School, intended to argue that the game of backgammon relies "materially" on chance and is therefore in violation of the state statute that prohibits "lotteries." And unlike craps, roulette, wheel of fortune, blackjack, slot machines, and baccarat, backgammon is not regulated by the State Gaming Commission and has not been legally sanctioned by a referendum vote of the people of New Jersey.
At 11:20 a.m., twenty minutes after the trial was to have begun, an armed guard wandered in and sat directly behind me. Twenty minutes later a frantic young woman clutching an infant whirled through the door and pleaded with Casiello to excuse her for being late. The guard behind me woke up and told her that she had the wrong courtroom.
At 11:45, a side door swung open and an armed bailiff announced the entrance of the venerable Judge Gruccio.
In the career of most judges there is always one case that is so far-reaching in its consequences that it strikes at the very heart of the times. I don't believe this was Gruccio's case. Gruccio didn't think it was either.
If you've been reading Backgammon Times, you'll remember that last spring, backgammon's legality had been upheld in the State of Oregon at the trial of tournament promoter Ted Barr. In a heated legal battle that brought expert witnesses Henry Wattson and Paul Magriel to Portland, Barr, a lawyer himself, along with attorney Marshall Amiton successfully persuaded a state judge that the game of backgammon relies chiefly on skill. The Barr case was regarded as a signal victory for backgammon promoters everywhere, setting a nationwide precedent for other courts to follow. Or so it was thought.
When Casiello put forward the Barr case for consideration, Gruccio refused to take "judicial notice."
"There's no question that the court should take notice of the revised Oregon statutes," Gruccio explained. "But the problem with the Oregon state decision was that no written opinion had been handed down, no decisional law submitted in writing. It's therefore not a written opinion of a court," he concluded with severity.
The first witness to take the stand was Henry Wattson. He explained at length the format of American Backgammon Championships's tournaments and described the popularity of backgammon in America.
"Tournament players," he told the court, "are more skillful on the whole than casual players. Differences in ability are based on both natural aptitude and on the frequency a person plays. A tournament like the World Amateur, for instance, is designed to maximize the importance of the players' skill and minimize the luck factor."
So elaborate was Wattson's explanation of the tournament format that Gruccio could have gone off and set up his own tournament the next day. That he didn't is a matter of public record.
When Magriel next took the stand, Casiello labored to establish his expertise. The judge's head was buried in Magriel's Backgammon (which was labeled exhibit F), and he seemed to scarcely hear the author-player's testimony.
"And what did you receive honors in at Philip Exeter Academy?" the lawyer prodded.
"Mathematics . . . and Latin," was Magriel's rehearsed response.
Gruccio looked like he was conked with a doubling cube. "My favorite subject in the whole world was Latin!" he exclaimed. Then, with some skepticism, "But Mr. Casiello, my former clerk, undoubtedly knows that."
Magriel didn't even get to fire off a word in Latin.
Magriel's credentials are extraordinary. After Exeter he studied at the Courant Institute of Mathematics at New York University and then did graduate work in probability theory at Princeton as a National Science Foundation Fellow. He was a professor of mathematics for seven years at the New Jersey Institute of Technology and developed their graduate program in probability. A nationally ranked chess player, Magriel learned backgammon in the 1960s and soon became an expert. He has since played in hundreds of tournaments, served for two years as The New York Times backgammon columnist and published Backgammon in 1976, which is now in its sixth printing.
A trader on the New York Mercantile Exchange, Magriel is currently under contract with Viking to do ten more backgammon books. And even those, he told the court, will barely scratch the surface of the game.
"Mr. Magriel, what determines who wins a game of backgammon?" Casiello began.
"Look at it this way," he responded. "On the average there are twenty possible moves after each roll of the dice. The player's choiceand he must exercise his choice for each moveis what makes backgammon a game of skill."
"How many possible moves are there on the first full turn?"
"And on the second?"
"In excess of 100,000,000."
"A single wrong move will often determine the outcome of a game," replied Magriel. "And if you picked one of twenty possible choices at random, it would be impossible for you to win."
"How does backgammon compare to chess?"
Pensive for a moment, Magriel responded with enthusiasm. "Backgammon ranks along with chess and bridge in subtlety, complexity, and sophistication. That's why I gave up a promising academic career and spent ten years of my life studying the game. It is far more complex than poker and gin rummy. Blackjack is trivial compared to backgammon."
To demonstrate backgammon was more than a race with dice, Magriel elaborated on several key strategies. But for all the interest Gruccio evinced, you would have thought Magriel was describing the roundness of a ping-pong ball.
"There are deep structural problems in backgammon," he continued. "It's not unusual for a player to anticipate ten or fifteen moves ahead."
I began to wonder if the backgammon I played was the same game Magriel was speaking about.
"Do you have an opinion on whether backgammon to a material degree relies on chance?" Casiello asked.
"I believe that the element of chance is not material," Magriel asserted.
"Is the game under the control or influence of the players?"
"Yes," he concluded, "it is." In the history of litigation even Clarence Darrow never created such fireworks during a trial.
Lunch was a grim little affair. We brown-bagged cheese and roast beef sandwiches at the luncheonette across from the courthouse and ate in the courtroom itself.
Magriel and Wattson were already pessimistic. Casiello said it could go either way. I made a pointless comment about the inscrutability of the judiciary. All three expected that the worst would come in the afternoon when Henderson began her interrogation.
A woman with three small children crowded into the courtroom and surrounded Wattson. I suspect they thought he was a legal aid lawyer because of his beard. An armed guard said they were in the wrong room. Magriel then bolted from his chair and ran to the public phones. He wanted a quote on gold from his New York office.
After lunch, Deputy Attorney General Carol M. Henderson, before an audience of seven that included the judge and a slumbering bailiff, constructed an argument that ultimately clinched the case for the State. To whit:
"Chess," said the judge accusingly to Magriel, "does not use dice and involves no element of chance, does it not?"
Magriel ignored the question. "Dice have no effect on the outcome of a backgammon game!" he shouted. I squirmed in my chair. "What the layman calls skill and luck are actually murky concepts!"
"When two people of equal ability play backgammon, don't the dice determine who will win?" Gruccio persisted.
"There are no two people of equal ability," Magriel replied. "It's something that never happens. Players of so-called equal ability actually have strength and weaknesses in different areas of the game.
"Golf," he continued, "which the layman recognizes as a game of skill, actually hinges a great deal on luck. The fickleness of the wind, the peculiarities of the course, a small pebble on the greenall of these introduce a luck factor into the game against which the skillful player strives. In backgammon the dice are the background on which you employ strategy."
Sophistry? Henderson thought so. She battered Magriel's testimony with her sold little syllogism until Gruccio, not Magriel, screamed in pain.
"Stop, stop. We're going in circles," he cried impatiently. "I think I've found something here which clarifies this."
Gruccio had a copy of Sports Illustrated with an article by backgammon writer Roger Dionne. Dionne was reporting on a tournament where Magriel had reached the final. Tied in the final game against his opponent, Magriel was bearing off. He had two checkers left when his opponent took the dice. According to Dionne, the entire tournament would be decided on the next roll. A 6-1 or better, Magriel would lose.
"Mr. Magriel," Gruccio asked, "is it true that the outcome of the tournament described here was determined by that single roll of the dice?"
"It's not that simple"
"Just answer the question: Is it true or not true?"
"Yes, but there were considerably more factors"
"Then the answer is yes?"
"Thank you, Mr. Magriel."
Gruccio had refused to hand down a declaratory judgment until he had more time to review the evidence. In one week, he announced, a written decision would come from his office. But by the end of the trial it seemed clear to most of us that it was no-go. Even Wattson, an unyielding idealist whenever backgammon's involved, gave it a 1-in-6 chance. There would probably be no tournament in Atlantic City this March.
Our trip back to New York City was somewhat less elegant. We had hired a limousine with a bar and television to carry us down. Now Magriel was dragging his Gucci luggage through the Atlantic City bus depot while Wattson stood in line for tickets. Despite the murmuring of the drunken retiree who had lost last month's pension at the slot machines, I found the bus trip relaxing. There was at least a bathroom on the bus. The limousine didn't have one.
A week later, when I was in Las Vegas for the Holiday Tournament, Magriel stopped me in the lobby of the Sahara Hotel and gave me the news. Gruccio had said no.
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