Contracts And Poker: Regulating Your Appearance

In previous columns, I have been analyzing the Participant Release and Confidentiality Form that players are required to sign when entering a World Series of Poker event, including WSOP Circuit events and other events not played during the summer series at the Rio. Let’s continue the discussion, noting again that none of the following constitutes legal advice, and if you have a question about an agreement you have made, you should consult a lawyer.

Paragraph 4 has the heading “FCC Regulations.” We’ll get back to the significance of that heading in a moment. But first, let’s try to read it. The first sentence states:

During Player’s appearance at and participation in the WSOP Events, Player agrees to dress as directed by CIE and adhere to CIE’s restrictions on the use of headphones, clothing and any other items containing endorsements of any kind. Player agrees that CIE shall have the sole and exclusive discretion to prohibit the wearing of any item by Player upon the premises during the WSOP Events and CIE may immediately disqualify Player from the WSOP Events for refusal to comply with the direction of CIE in this regard, without recourse of any kind or nature whatsoever by Player against CIE.

I can’t help but point out an ambiguity in that first sentence. When it says “headphones, clothing and any other items containing endorsements of any kind,” does the modifier “containing endorsements of any kind” modify only “other items” or does it also modify headphones and clothing? This might be significant, because it is not clear whether this provision is addressing in general what you can wear to the event, or more narrowly, whether you can wear endorsements – or even more narrowly, is it about what endorsements the FCC (Federal Communications Commission) prohibits you from wearing on television?

There are FCC regulations that affect what can be broadcast on TV such as restrictions on obscenity, tobacco advertising, and political promotions, so one might assume that this provision prohibits the player from violating those regulations. However, those two sentences do not mention the FCC and appear to contain prohibitions that go way beyond whatever the FCC might prohibit since the provision starts out by saying that “Player agrees to dress as directed by CIE [Caesars].”

In case there is any doubt about the breadth of what Caesars can prohibit, the second sentence gives them the right to prohibit “the wearing of any item.” In a future column I will discuss the “Miscellaneous” provisions in the Release. I know you can’t stand the suspense, so I will mention now that there is a provision in the Miscellaneous terms declaring that “Headings … shall not be construed to affect the meaning, construction or effect of this Agreement.”

In other words, just because the provision has the heading “FCC Regulations,” we should not conclude from that that the provision is so narrow. Caesars is apparently telling us they don’t mean to limit themselves to prohibiting things that are prohibited by FCC Regulations.

For example, it is unlikely that the FCC prohibits a person from wearing a cap with the insignia of a baseball team on it, but several years ago during a World Poker Tour tournament, Dan Harrington had to wear his Boston Red Sox cap with duct tape over the B (I’m making a wild guess here that there was a B under the tape). Whether this was done because it was considered free advertising for the Red Sox or because whoever was in charge was a Yankees fan would not matter under a provision like this. Since Caesars has the “sole and exclusive discretion” to prohibit the wearing of the item, they do not have to have a good reason.

The only mention of the FCC comes in the final sentence. It provides:

Player represents and warrants that Player has not accepted, and will not accept, any money, service or other valuable consideration from anyone for the inclusion of any matter in the Works, except to the extent that the same shall be approved by CIE in its sole discretion, and then only provided that the same shall be subject to applicable requirements of the U.S. Federal Communications Act.

This part of the provision is poorly written. It appears to say that you won’t make any endorsements – I gather this would be things like wearing the patch of an online site on your sleeve — without Caesars’ permission. But it only prohibits paid endorsements and not something you might wear for free.

Also, I think they meant to say that you can’t wear any endorsement that violates the requirements of the FCC. But I think what they ended up saying is that the only things you need to get approved are the ones subject to FCC regulations. I think the lawyers may have gotten tripped up on their own legalese with that one.

If lawyers can’t understand what they have written, do they expect mere mortals like poker players to understand it? ♠

Scott J. Burnham is Professor Emeritus at Gonzaga University School of Law in Spokane, Washington. He can be reached at [email protected].