Contracts and Poker: Online Play

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When I play online on WSOP.com, I am advised to: PLEASE READ THESE TERMS OF SERVICE (the “Terms of Service”) CAREFULLY BEFORE USING THIS SERVICE. I must say that even though I am a person who actually enjoys reading legal documents, it is not easily done in this case.

For one thing, there is not just one document to read. The Terms of Service tell me that I also have to consult the “Privacy Policy,” the “Bonus Policy,” the “Withdrawal Policy,” the “Responsible Gaming Policy,” the “Location Verification Terms & Conditions,” and the “House Rules.” And when I sign up to play in Nevada, I am additionally hit with “Tournament Terms and Conditions,” “General Promotion Terms and Conditions,” and “General Bonus Terms & Conditions.”

It is not easy to find a path through all of these documents. For example, a short way into the Tournament Terms and Conditions I find this dire warning:

14. Casino may impose penalties upon any person who gives, makes, issues, authorizes or endorses any statement or action having, or designed to have, an effect prejudicial or detrimental to the best interest of the Promotion as determined by Casino, acting in its sole and absolute discretion. This may include, but shall not be limited to, expulsion from the event and/or loss of the right to participate in this or any other promotion/tournament conducted by Casino.

This sounds like a pretty serious restriction on my freedom of speech. But we need to remember that freedom of speech means that the government can’t restrict our speech – private parties like casinos are generally free to do so through contract. Poker players are quick to complain when they feel wronged by a casino, and have plenty of online outlets to vent on. So, I had better think twice before I say anything “detrimental to the best interest of the Promotion.”

In trying to comply with this rule, I can probably think of some things that the casino might find to be detrimental, but I am less sure about what they mean by a “Promotion.” If I can’t say anything detrimental to the best interest of a “Promotion,” it might be nice to know what a promotion is. The word is capitalized, which suggests that it is a defined term, but I can’t find the definition anywhere. Back on the web page that has the Terms of Service, under Promotions there are references to things like the Player Appreciation Tournament and the Welcome Offer, which suggest that a Promotion is a narrow category of events.

Searching for other uses of the word promotion, later on in that rule I see that the casino’s remedy for violation of the rule applies to “this or any other promotion/tournament,” which may be saying either that promotions and tournaments are the same or that they are different. Later on, paragraph 23 of the Tournament Terms and Conditions refers to “these Official Promotion Rules.” I can’t find anything called “Official Promotion Rules,” so perhaps the Tournament Terms and Conditions are the same as the Official Promotion Rules, which suggests that maybe a promotion is not a narrow category but may embrace all tournaments. But if so, why use two different names for the same thing? This confusion might be good news for me, because when interpreting ambiguities in a contract, courts often employ a rule that goes by the Latin name of contra proferentem – construe it against the one who drafted it.

In the next provision, paragraph 15, I get more bad news:

15. Casino is not liable for injuries or losses arising or resulting from participation in the Tournament and is not liable for any acts or omissions by employees, whether negligent or willful, in the conduct of the Tournament and is not liable in the event of any equipment or software malfunction.

Note that this one refers to the conduct of the “Tournament,” rather than the “Promotion,” exacerbating my confusion about whether these are the same thing. Let’s look at the last part first: “Casino … is not liable in the event of any equipment or software malfunction.” Since it created and promulgated the software, Caesars would presumably be liable for its operative fitness, but contracting is all about shifting risks, so it is probably acceptable for Caesars to shift that risk to me.

The other part is more troubling, when Caesars tries to shift the risk of its employees’ actions to me. One of the basic rules of employment law is that employers are responsible for the actions of their employees. This rule is so important that it also has a Latin name – respondeat superior. This is such an important policy that I don’t think an employer can contract around it.

However, there is an exception to the rule. If the employee is not acting within the scope of their employment, then the employer is not responsible for those actions. Assume, for example, that an employee colluded with a player to help that player win the tournament. Those actions would be beyond the scope of employment, and the employer would not be liable under respondeat superior, so it doesn’t matter what the contract said.

However, there is probably an exception to the exception. Gaming activities are highly regulated, and the regulations are also a part of the player’s agreement with the casino – and a part that casinos generally can’t contract around. One of the primary purposes of the regulatory scheme is to assure the public that the games are fair. If a game is rigged against players, it seems to me the players would have a claim against the casino even if the rigging was done by an outlier employee.

In future columns we will examine other parts of the contracts governing online play. ♠

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