Was South Carolina's Match Play video game machine legal because it involved skill?

Plain-English summary

Representative Merrill asked whether a coin-operated video machine called “Match Play” was legal because its players used skill. The Attorney General declined to decide the machine's legality. The office said it could state the governing gambling law but could not investigate or resolve how the particular machine worked in practice.

The opinion applied a dominant factor test: a game was one of chance when chance predominated over skill in determining the result. The AG said a player's ability to improve the odds did not alone make a machine a game of skill. It identified the game's programming, the selection of icons, and any programmed win rate as factors that could matter, but made no findings about Match Play on those points.

Under the procedure the opinion described, law enforcement initially assessed a machine's legality and a magistrate ultimately examined a seized machine. The opinion cited State v. 192 Coin-Operated Video Game Machines for the owner's opportunity to be heard in that process. The AG said an advisory opinion could not replace the factual decision required there.

Currency note

This opinion was issued in 2003. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Did this opinion declare the Match Play machine legal? A: No. The AG gave the general test and declined to decide whether this particular machine was a game of chance.

Q: Could a game still be illegal if playing it took skill? A: Under the test the AG used in 2003, yes. The question was whether chance or skill predominated in determining the outcome, not whether any skill was involved.

Q: Who decided the facts about a particular machine?
A: The AG said law enforcement made an initial assessment and a court fact finder ultimately decided whether the particular machine was an illegal game of chance.

Q: Did an official legal opinion settle a seized machine's status? A: No. The opinion described a statutory magistrate procedure and cited a South Carolina Supreme Court ruling rejecting an argument that a solicitor's legal opinion validated the machines before it.

Background and statutory framework

Section 12-21-2710 prohibited possession of specified gambling machines and games of chance. The AG said a particular machine's actual operation was a question of fact outside its opinion function. It discussed the seizure and magistrate examination procedure under the Code, including the machine owner's opportunity to contest illegality.

Citations and references

• Section 12-21-2710: the machine prohibition discussed in the opinion.
• State v. 192 Coin-Operated Video Game Machines, 338 S.C. 176, 525 S.E.2d 872 (2000): the opinion's discussion of the seizure procedure and owner's hearing.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/may-5-2003/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/03/03may-5-Merrill.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
HENRY MCMASTER
ATTORNEY GENERAL

May 5, 2003

The Honorable James H. Merrill
Member, House of Representatives
335-D Blatt Building
Columbia, South Carolina 29211

Re:

Advisory Opinion Concerning "Match Play" Video Game

Dear Representative Merrill:
You have requested an advisory opinion from this Office concerning the legality of a particular video game machine. You indicate that constituents of yours have approached you regarding the legality of a coin-operated video machine called "Match Play." By way of background, you indicate that "[ i]t is the position of [your] constituents that this game is a game of skill - rather than a game of chance - and is therefore legal under the laws of our state." You further indicate that your constituents would like clarification on this matter. L~
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First, I would like to apologize for the delay in responding to your request. As you may know, this Office has been involved in extensive litigation concerning the legality of another video gaming machine known as the "Chess Challenge." As is discussed more fully below, the history of that matter demonstrates the difficulty in rendering an Attorney General's opinion as to the legality of any particular video game machine. Because of these difficulties and the potential misapplication of opinions rendered in this regard, this Office can only provide the general law in the area of illegal gambling and gaming devices. I trust that this general information will provide sufficient clarification for your constituents. LAW GoVERNING LEGALITY OF VIDEO MACHINES

Section 12-21-2710 makes illegal the mere possession of certain machines and devices regardless of their intended use. State v. 192 Coin-Operated Video Game Machines, 338 S.C. 176, 525 S.E.2d 872 (2000); Squires v. SLED, 249 S.C. 609, 155 S.E.2d 859 (1967); State v. Appley, 207 S.C. 284. 35 S.E.2d 835 (] 945) . While the statute specifically focuses upon the prohibition of ff:achme~ such a~ "s]o1 lTlaCh1r.e~. anc "punch bmJH!'. ... i; ;.. i:-,· ]·, C1J1'. ;:,r:: ' 'o th c· dt>v ict' pfi1aininp 11~ games of chance of whatever name or kind .... "

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F ACSIMILE: 803-253-6283

The Honorable James H. Merrill
Page 2
May 5, 2003

The question thus becomes what is a game of chance? Authorities have defined a "game of chance" as a "game in which chance rather than skill determines the outcome." See, Black's Law Dictionary. In Op. S.C. Atty. Gen., Op. No. 3629 (September 25, 1973), this Office defined the word "chance" as "'something which happens unpredictably without discernable human intention or observable cause."' In that same opinion, it was noted that "skill" is '"the ability to use one's knowledge effectively and readily in execution or performance."' Id.

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Historically, it has been the opinion ofthis Office, as well as a majority ofjurisdictions in this country, that a "game of chance" is one in which the element of chance predominates over any skill involved. On the other hand, a "game of skill" is one in which the element of skill is predominant over the element of chance. See, Ops. S.C. Atty Gen., August 2, 2001; September 5, 1995; December 5, 1978; Op. No. 3629, supra. While the South Carolina Supreme Court has never squarely adopted this so-called "Dominant Factor" test, the dissent in Johnson v. Collins Entertainment Co., Inc., 333 S.C. 96, 508 S.E.2d 575 (1998) indicates that the Court would accept this rule. In Johnson, Justice Burnett, joined by now Chief Justice Toal, opined:
... where the dominant factor in a participant's success or failure in a particular scheme is beyond his control, the scheme is [a game of chance], even though the participant exercises some degree of skill or judgment. If a participant's skill does not govern the results of the game, the scheme contains the requisite chance necessary to constitute a [game of chance].

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Courts considering whether elements of skill are involved in the playing of a particular game have examined factors such as whether the player must demonstrate attributes such as manual dexterity, hand-eye coordination, reflexes, muscular control or the ability to concentrate. See, U.S. v. 294 Various Gambling Devices, 718 F.Supp. 1236 (W.D. Pa. 1989). Judgment, practice or adroitness are elements to be considered as part of the evaluation. State v. Stroupe, 76 S.E.2d 313 (N.C. 1953). Intellectual abilities are an important factor. In re Allen, 377 P.2d 280 (Cal. 1962). It is important to remember that the possession of a particular skill in playing the game does not in itself make the game one of skill. Again, the test is whether skill or chance "predominates" in determining the game's outcome. As the North Carolina Supreme Court summarized in State v. Stroupe, supr~ "whether or not the element of chance is present in such a manner as to thwart the exercise of skill or judgment" is controlling. Games have been ruled to be games of chance even when "the skill of the player may increase the player's odds of winning but ultimately the player's skill cannot determine the outcome, regardless of the degree of skill involved." Op. of the Justices, 795 So.2d 630 (Ala. 2001). As Justice Burnett emphasized in his dissent in Johnson v. Collins, " ... skill should be defined in terms of the ability to obtain the desired outcome - a certain [icon, image, point total] - rather than the ability of one player to play more judiciously than another." 508

The Honorable James H. Merrill
Page 3
May 5, 2003

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Moreover, machines which incorporate into the manner ofplay the random selection oficons and images through their programming or software must be viewed skeptically when performing a skilVchance analysis. It has been held that such machines, producing images by virtue of a computer program unknown to the player, present only the "illusion of skill." Score Family Fun Center, Inc. v. County of San Diego, 275 Cal.Rptr. 358 (Cal.App. 1990). Also, machines which have as part of their programming the ability to control the percentage of times players win (somet~mes referred to as retention ratio or payout ratio) have been viewed as games of chance, despite the existence of some aspects of skill. See Collins Music Co. of North Carolina, Inc. v. North Carolina Alcoholic Beverage Control Commission, 451S.E.2d306 (1994); and U.S. v. 294 Various Gambling Devices, 718 F.Supp. 1236 (W.D.Pa. 1989). DJFFICULTY IN RENDERING OPINION As To LEGALITY OF ANY MACHINE

The foregoing summarizes the basic law in determining whether a video game is legal or illegal under South Carolina law. This standard would be applicable to the Match Play game. The problem, however, arises in the application of these legal criteria to the particular facts of a given situation. In numerous instances, the courts, Attorneys General in other jurisdictions, as well as this Office, have recognized that the determination of whether a particular game or machine - in this instance the Match Play- is predominantly a game of skill or one of chance, is primarily a question of fact. See, Commonwealth v. Lake, 317 Mass. 264, 57 N.E.2d 923 (Mass. 1944) ["Whether the game was predominantly one of chance or skill was a question for the jury."]; Ark. Op. Atty. Gen. No. 98-41(June26, 1998), 1998 WL 549232 [''the question of whether the games about which you have inquired involve skill or judgment, or whether, by contrast, they are controlled entirely by chance, is a question of fact."]; Tenn. Op. Atty. Gen., No. 92-35, 1992 WL 545006 (April 22, 1992)
["the question of whether chance or skill predominates in a particular variety or type of gambling scheme turns upon the particular facts of that contest, as it is actually conducted in practice. Courts consider this issue a question to be decided by the trier of fact."]; Op. S.C. Atty. Gen., March 30, 1982 [citing Darlington Theatres v. Coker, 190 S.C. 282, 2 S.E.2d 782 (1939) which quoted from State v. Eames, 183 A. 590, 592 to the effect issue of whether a particular game is a lottery is essentially one of fact]; Op. S.C. Atty. Gen., No. 3629, supra [whether skill is involved or not must be determined initially by the law enforcement officer and ultimately by a judicial fact finder]. Ofcourse, in rendering an Attorney General's opinion, this Office has consistently recognized that it cannot make factual findings. As was stated in Op. S.C. Atty. Gen., Op. No. 85-132 (November 15, 1985), "[b ]ecause this Office does not have the authority of a court or other factfinding body, we are not able in a legal opinion, to adjudicate or investigate factual questions." The General Assembly has designated the judicial procedure to be used in determining the legality of a particular video machine through the enactment of~ 12-21-2712 of the Code. This prov1s1on states that "t<1J11) macJ1mt. nuarei. 01 othc: ut\JCt pr,;ninneC ['> '.:Jc(·11or; J '.:.-:2 j -'.:7J Gmus be seized by any law enforcement officer and at once taken before any magistrate of the county ...

The Honorable J runes H. Merrill
Page4
May 5, 2003

wh0 shall immediately exrunine it, and if satisfied that it is in violation of Section 12-21-2710 or any other law of this State, direct that it be immediately destroyed." The State Supreme Court has recognized and commented at length upon this procedure in State v. 192 Coin-Operated Video Grune Machines, supra. In that case, the Court concluded that "the magistrate's exrunination of the seized machines must include an opportunity for the owner of the machines to be heard concerning their legality." 338 S.C. at 195. In the Court's view, due process requires "a post-seizure opportunity for an innocent owner 'to come forward and show, if he can, why the [machine] ... should not be forfeited and disposed of as provided by law.'" Id. Moreover, the Court in 192 Video Grunes, rejected any argument that a legal opinion rendered by the Circuit Solicitor that the machines in question could be legally stored, validated the machines in any way. To the contrary, the Court strongly indicated that the question of the legality of a machine is a matter to be determined by the magistrate pursuant to the procedure established by
§ 12-21-2712, and that in the case before it, "the magistrates [correctly] set out what statute was violated and how the machines violated it." Id., at 197. CONCLUSION

It is the opinion of this Office that the appropriate test to apply when determining whether a game is a grune of chance or a grune of skill is the Dominant Factor test as discussed above. The question of whether any particular machine or device is an illegal grune of chance must be determined initially by law enforcement and ultimately by the fact finder in a court oflaw. Further, this Office cannot resolve the factual question of the legality of a specific video grune machine.

David K. Avant ;
Assistant Attorney General
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