June 11, 2015
Digest: A full-time judge may not participate in the World Series of Poker.
Rules: 22 NYCRR 100.2; 100.2(A); 100.2(C); 100.4(A)(1)-(3); 100.4(D)(3); Opinions 15-42; 01-86; 89-06.
A full-time judge asks whether he/she may “play in a legal poker tournament” at the World Series of Poker in Nevada. The judge states that all entrants must execute a release form permitting the tournament organizers to use their image and likeness for commercial purposes, including telecasting the event. The release form provides, in part:
Player acknowledges that Rio Properties, LLC and Caesars Interactive Entertainment, Inc. (collectively, “CIE”), on their own and through authorized third party designees, will be recording, photographing, videotaping, filming and creating other audio and/or visual works, programs, and depictions of or about the WSOP Events before, during, and after the events (the “Works”) and that CIE and their designees will be using and exploiting the Works, on a live or delayed basis.... In addition, the Works will be used for all types of advertising, publicity, and promotion for the WSOP Events.... Player consents to being recorded, photographed, filmed and taped for the Works (including without limitation behind-the-scenes photography and film and audio taped interviews with Player). Player further consents to CIE’s and their designees worldwide use and exploitation of Player’s name, voice, likeness, image, actions, statements, caricatures, nicknames, social media handles, signature, mannerisms, traits, speech, phrases, and other unique personal characteristics, (collectively the “Player’s Likeness”) as they appear in the Works and as they appear in any photographs, films or other audio and/or visual works of past or future WSOP Events.... Player agrees that he/she will make no claim of any kind against CIE and their designees as a result of any of the uses described above....
Although the inquiring judge has not described the World Series of Poker in detail, it appears to be an annual televised series of poker tournaments conducted as a major for-profit commercial enterprise. The “Main Event,” which calls for a $10,000 entry fee, attracts thousands of entrants from around the world vying for a multi-million dollar cash prize.1
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2[A]) and must always act to promote public confidence in the judiciary’s impartiality and integrity (see 22 NYCRR 100.2). A judge’s extra-judicial activities must be compatible with judicial office and must not cast doubt on the judge’s capacity to act impartially as a judge, detract from the dignity of judicial office, or interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A]-). A judge must not lend the prestige of judicial office to advance private interests (see 22 NYCRR 100.2[C]), and a full-time judge must not be an “active participant of any business entity” unless a specific exception applies (22 NYCRR 100.4[D]).
The Committee has not previously issued an opinion on whether a judge may participate in the World Series of Poker. The inquiring judge has directed the Committee’s attention to Opinion 89-06, in which a judge asked whether he/she could “appear on a television game show with his family” and explained that the judge “would not be identified on the show as a judge or by his full name.” The Committee’s prior advice that a judge may join family members on a television game show, where neither the judge’s full name nor title would be used (see id.),2 has no meaningful application in the present circumstance, where the inquiring judge’s participation as a player in the World Series of Poker would require the judge to consent to “worldwide use and exploitation” of the judge’s “name, voice, likeness, image, actions, statements, caricatures, nicknames, social media handles, signature, mannerisms, traits, speech, phrases, and other unique personal characteristics.” Moreover, the judge’s proposed participation here would also be as one poker player competing against others. Thus, it is not a situation where the judge will be readily recognized as participating only as a member of his/her family (see Opinion 89-06; cf. Opinion 15-42 [finding little risk that a judge will be seen as lending the prestige of judicial office to advance a summer camp’s interest when sharing his/her own family’s experience with the camp with others who are considering sending children to the camp]).
The Committee has previously advised that a full-time judge may not provide an on-camera interview to a for-profit company filming an educational video about the judicial branch, even where the judge would not be compensated for the interview (see Opinion 01-86). The Committee concluded that such involvement would cause the judge to be an “active participant” in a business entity and also risk demeaning the dignity of judicial office (see id.; 22 NYCRR 100.4[A]; 100.4[D]). Of particular relevance here, the Committee noted that “the judge is required to sign a standard appearance release, thereby relinquishing any control over the final product and thus creating the danger that the judge’s contribution may be used in ways that may ‘detract from the dignity of judicial office’ or are otherwise inappropriate” (Opinion 01-86 [citation omitted]).
Here, too, the Committee believes the inquiring judge’s participation in the World Series of Poker, with its broad release and consent to use of the judge’s name, likeness, interviews and footage for promotional purposes, would lead to the perception that the judge is an active participant in a business entity (see 22 NYCRR 100.4[D]).
Relatedly, the release purports to prevent the judge from making a claim against the tournament organizers if the judge objects to use of his/her name, image, or recordings. Such a provision only underscores the risk, beyond the judge’s control, that his/her judicial status could be misused by tournament organizers and/or marketers (see 22 NYCRR 100.2[C]). Indeed, given that the release purports to grant perpetual rights to use “caricatures, nicknames, ... mannerisms, traits, speech, phrases, and other unique personal characteristics” of the players, the Committee notes that a judge could also be exposed to the risk that tournament organizers will sensationalize the judge’s participation in a way that would demean the dignity of judicial office (see 22 NYCRR 100.4[A]). The judge could be left with no recourse if the organizers chose to play the judge’s recorded words or actions from an unguarded moment unfairly and out of context, in a manner that would cast doubt on the judge’s ability to act impartially as a judge (see 22 NYCRR 100.4[A]).
Therefore, under the circumstances presented, the inquiring judge may not participate in the World Series of Poker.
1 The 2015 World Series of Poker involves 68 separate poker tournaments, with entry fees ranging from $565 to $111,111. In 2014, the winner of the Main Event took a $10 million prize, while the next six contenders, from four different countries, won over $16 million.
2 Opinion 89-06, decided in the Committee’s second year of operation, does not describe the game show at issue, and does not mention whether the inquiring judge was a full-time or part-time judge. The Committee notes that televised game shows vary widely in their format and content and their overall commercialization.