Litigation Restaurant and Hospitality Law

Phil Ivey’s Defense: I Can Cheat Because Borgata Employs “Babes”

As I wrote about on this blog back in April 2014, The Borgata Casino in Atlantic City is suing poker superstar Phil Ivey for return of $9.6 Million he won at the baccarat table at the casino. The Borgata claims (and Phil generally admits) that Phil made certain demands involving a certain set of playing cards that had a slight malfunction that made it easier for him to win at the table. The elaborate scheme is detailed in my earlier blog post The casino says that the scheme gave Ivey an “unfair advantage” even if it wasn’t technically cheating.

Well Ivey has fought back arguing that the Borgata also employs certain systems to gain an unfair advantage on players. First on the list of Ivey’s objections is the company’s use of “Borgata Babes” to flirt with the players and distract them as well as plying them with food and alcohol. The claim was made in opposition to a motion by Borgata to prevent Ivey’s lawyers from taking the testimony of their Food and Beverage director. They want all the seedy details of what the casino does to keep players in their seats. As Mr. Ivey states in his deposition, filed in court this week, “[The Borgata] wants to keep you there as long as they can. And by keeping you there it increases their ROI [return on investment] meaning the, the theoretical value, meaning the more hands you play, the bigger advantage [the Borgata] usually has.”

Here are some of the “schemes” Ivey complains of:
(a) “It distracts you from your playing,I mean, anything they can do to give themselves an advantage. Everyone knows that alcohol impairs your judgment, and they offer that, and they have the pretty cocktail waitresses and they’re all very flirty. They’re talking to you . . . I got quite a few ­numbers.”
(b)He had an unlimited budget for free alcohol that was brought to him by “the prettiest waitresses in town.”
(c) “The waitresses wear custom-made tight skirts and bustier tops created by fashion designer Zac Posen and high heels.”
(d) To keep him gambling, Borgata set up his gaming table with Fiji water and energy drinks and positioned a smorgasbord within feet of his table.
(e)”Borgata Babes” cozied up to Ivey serving him coffee and alcoholic beverages while wearing skimpy outfits.”

Oh poor baby. The big bad casino had beautiful women scantily clad, flirting with him, plying him with drinks and food all night. What torture! How did he manage to get out alive – and not just alive but with just under $10 Million of the casino’s money?

baccaratI am confident that a judge is going to allow him to take the Food and Beverage director’s testimony because Federal Court has a wide view of what’s available during the discovery process. And Phil did assert this “unfair advantage” of the casino as a defense – though the judge has already said it seems “a tangential defense” at best. And I have no doubt that the deposition will reveal a lot of ugly truths about the “Borgata Babes Program” (its actual name). That program has already been under scrutiny. In 2008, 22 Borgata Babes accused the casino of discrimination because it subjected them to random weigh-ins and suspended them from work if they gained weight. A judge tossed that lawsuit in 2013, noting that the women had signed contracts agreeing not to gain more than 7 percent of their starting weight.“For the individual labeled a babe to become a sex object requires that person’s participation,” Atlantic County Superior Court Judge Nelson Johnson ruled at the time.

Judge Johnson’s ruling in that case was correct and the same applies here to Ivey. Borgata complains about his ruse because it was unaware he was employing a scheme to give him a competitive advantage – they would not have allowed him to play had they known what he was up to (as is their right). Conversely, just like the Borgata Babes (and Hooter chicks and Playboy bunnies before them), Ivey was well aware of what the casino was up to and why they were doing it. In fact one of the first lines of his lawyers memorandum of law states: “As a professional gambler, defendant Ivey is well aware of Borgata’s methodology in an attempt to impair and distract its patron’s judgment with alcohol and scantily-clad cocktail waitresses.”

That will eventually be the death-knell of that defense. If you sit at a table aware of all that then the “unfair advantage” becomes a simple “advantage” that you are willing to take on. It is no longer unfair. No one was forcing Mr. Ivey to drink alcohol or flirt with the waitresses. Just like he had the clout to make the demands that helped him scheme the game, he could have insisted that no alcohol be allowed or that the waitresses wear toned-down uniforms if he was incapable of concentrating otherwise. Whether a court will rule what Mr. Ivey did amounts to unfair advantage remains to be seen. But Mr. Ivey’s attempt to balance the argument by blaming alcohol and women will be dead on arrival.

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