Dominant Factor Test

The Dominant Factor Test (also known by several variants such as the Dominant Principle Test or Dominant Element Theory) is the principle that most U.S. jurisdictions (states or territories) use in determining, legally, what is and is not gambling.^[1] The California Supreme Court said:

The term 'game of chance' has an accepted meaning established by numerous adjudications. Although different language is used in some of the cases in defining the term, the definitions are substantially the same. It is the character of the game rather than a particular player's skill or lack of it that determines whether the game is one of chance or skill. The test is not whether the game contains an element of chance or an element of skill but which of them is the dominating factor in determining the result of the game.^[2]

The principle is currently the basis for numerous litigation cases around the United States as it relates to poker. Poker is acknowledged to possess two of the three criteria often associated with gambling. Namely, that the player risks something (consideration) in order to potentially gain something (reward). Generally, it is the third element, chance, that is disputed. As there is no doubt that an element of chance exists in all endeavors, most states have used the Dominant Factor Test when determining if a game is primarily a game of skill or a game of chance.