Contracts and Poker: “Miscellaneous” Boilerplate Terms

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In recent columns, I have been analyzing the Release that Caesars requires players to sign before entering World Series of Poker events. This column looks at the group of terms that appears under the appropriate heading of “Miscellaneous.” These terms are not unique to this agreement, but can be found at the end of most agreements. Because of this, they are often referred to as the “Boilerplate” terms. Let’s examine them.
CIE may assign, transfer, or license its rights under this Agreement, in whole or in part, at any time to any third party.

Contract rights are like property that can be bought and sold. Unless those rights are personal, contract law has no problem with the transfer. This provision simply states that default rule. It would kick in, for example, if Caesars sold all its assets – including the rights they obtained from you – to another company.

Player acknowledges that he/she has relied on his/her own judgment or has been advised by an attorney of his/her choice prior to entering into this Agreement.

The general rule in contract law is that an agreement is binding on a party if the party freely assented to it. Saying you never read it or didn’t understand it is not a defense. This provision tries to hammer that point home, emphasizing that you knew what you were doing when you agreed to it.

This Agreement sets forth the entire understanding and agreement of the parties, and there are no other warranties, agreements or understandings between the parties, express or implied, as pertains to the subject matter herein.

Most oral agreements are enforceable, as are agreements that are partly written and partly oral. The exception is when the parties intend that all the terms be found in a writing; then any oral agreements or promises are excluded. This provision, often called a “merger clause,” attempts to indicate that that was the parties’ intention. Between sophisticated parties, such a clause usually has great weight. But many courts are skeptical that it represents the intent of a less sophisticated party who likely did not read the agreement. Also, it may not prevent you from proving a defense to the formation of an agreement; for example, that a fraudulent representation induced you to sign it.

This Agreement may not be modified or amended in any manner except by a writing executed by Player and an authorized officer of CIE.

The merger clause is intended to exclude from the agreement anything you might have been told or agreed to before you entered the agreement. This provision, often called a “no oral modification” or “NOM” clause has a similar intent for anything you might have agreed to after you entered the agreement. It requires that the modification be in a signed writing in order to be effective. Frequently parties make oral modifications in spite of the NOM clause, and a court may honor such a modification, especially if a party has acted in reliance on it.

Headings preceding the text, articles and sections of this Agreement have been used solely for reference and shall not be construed to affect the meaning, construction or effect of this Agreement.

You remember that I mentioned this term in an earlier column. Recall that paragraph four has the heading “FCC Regulations.” If a player tried to argue that the only restrictions permitted under that paragraph were the ones created by the FCC, Caesars could raise this provision in its defense and point out that the parties agreed that the heading should not be read to restrict the otherwise clear language of a provision. It is not found in most agreements and represents very cautions drafting.

This Agreement shall be deemed executed and delivered within the State of Nevada, is made in contemplation of its interpretation and effect being construed in accordance with the laws of said State applicable to agreements fully executed and performed in said State, and it is expressly agreed that it shall be construed in accordance with the law of the State of Nevada without giving effect to the principles of the conflicts of laws.

This is a “choice of law” clause. It doesn’t restrict where you can sue, but asks the court you bring suit in to apply the law of Nevada to the case. Most courts will honor such a provision as long as 1) the transaction has some connection with Nevada, and 2) the applicable law of Nevada does not violate a fundamental policy of the jurisdiction whose law would apply if the parties had not chosen Nevada law.

All litigation arising out of or relating to this Agreement shall be brought in the federal or state courts located in Clark County, Nevada and the parties irrevocably consent to the exercise of personal jurisdiction over them in Clark County, Nevada.

This one does restrict where you can sue – you have to sue in Clark County, Nevada. Although this may cause inconvenience, most courts have found the clause enforceable. It was enforced by the US Supreme Court in the case of Shute v. Carnival Cruise Lines. When she was injured on a cruise to Mexico, Mrs. Shute, a resident of Washington State, was required to sue in Florida. While this decision has been influential, states courts do not have to follow it because it arose under the Court’s admiralty jurisdiction, since the injury occurred on the high seas.

If Player files a lawsuit against CIE or any other individual or entity, involving this Agreement or related to Player’s removal from one or more WSOP Events, but Player does not prevail against each defendant, Player shall pay each prevailing defendant the costs, expenses, and reasonable attorneys fees, it/he/she incurred in defending Player’s lawsuit.

The rule in American law (as opposed to English law) is that each side has to pay its own attorneys fees whether they win or they lose. However, this is a default rule that the parties are free to change in their agreement. Here, Caesars has changed it – but notice they have made it one-sided. If you sue, you have to pay if the defendant wins, but the defendant does not have to pay if you win. In many jurisdictions, the attorneys fee clause has to be mutual. However, recall that the agreement states that Nevada law applies, and Nevada may permit the one-sided clause. ♠

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