Section 5363 does not make it illegal for a mere player to make bets or wagers. Rather, the Act applies only to those involved in the business of betting or wagering. Section 5262 defines a bet:
• as the staking or risking of property in order to win something of value based on the outcome of:
o a contest of others
o a sporting event, or
o a game subject to chance
• the purchase of a chance to win a lottery or other prize the award of which is predominantly subject to chance
• the making of a wager prohibited under the Professional and Amateur Sports Protection Act, or
• as including "any instructions or information pertaining to the establishment or movement of funds by the bettor or customer in, to, or from an account with the business of betting or wagering."
Some commentators have argued that the operation of online poker Websites should be excluded from the reach of the new law because poker, being a skillful game, is not a game of chance. Under current state law that argument does not hold water. Most U.S. jurisdictions apply the Dominant Factor test to determine if a contest is a game of skill or a game of chance. That test looks to which elements predominate (51%) in determining outcome of the game. If the elements of chance predominate, then it is a game of chance, notwithstanding that skill elements are important, but not predominant. Furthermore, the outcome is to be determined by the considering the nature of the game and the abilities of the average player coming to the game. See: Is Poker a Game of Skill? Online poker operators should consider mathematical analysis of their vast data bases of poker results to support attempts to overturn the case law that views the "luck of the draw" aspect of poker as resulting in its being a game of chance.
