Contracts And Poker: What Is In That Release You Signed?

I don’t recall being asked to sign a release at the World Series of Poker last summer, but recently I played in a WSOP Circuit event and signed a release that apparently covers all 2023 WSOP events. On the assumption that you don’t end up reading it, let’s go over what it says.

By the way, I think the assumption that virtually no one reads these forms when they sign them is a fair assumption. You may wonder if it is nevertheless binding on you. The answer is YES.

Contract Law has what is called the “objective theory of assent” – if you give your assent, as by signing a document, then you are deemed to have agreed to it even if you don’t read it or don’t understand it if you do. The same rule applies when you click on the “I agree” button online. As long as you had the opportunity to read the Terms and Conditions, they are binding on you because you assented to them.

One thing that protects you is that if the party who prepared it included a term so outrageous that no one would have agreed to it if they knew it was there, then that “unconscionable” term would not be binding on you. So you don’t have to worry that Caesars asked you to give up your first-born child in order to play poker (not that some of you would oppose that!)

Paragraph 1 begins with what is most likely a lie. It states that “Player has read and agrees to comply with the Official Rules of the WSOP (www.WSOP.com/2023)” Just as you never read the release itself, you probably never read the Rules. I first thought that these rules are nevertheless binding on you, but now I am not so sure. The reason I am not sure is that the document called Tournament Rules that is available at WSOP.com/2023 is expressly limited to the 2019 WSOP, so by its terms it would not apply in 2023. This reminds me of a story about Roman emperor Caligula (a Caesar, but no relation to the present Caesars) who supposedly posted laws at the top of a pillar where no one could read them.

Paragraph 3 is captioned “Name, Voice, and Likeness Release” and it is just that. Since it is possible the event will be filmed and then shown on various media, it is not surprising that you have consented to use of those things “in perpetuity by any means and through any medium now known or hereinafter used.” I think they meant “hereafter” since “hereinafter” means “later on in this document.” Sometimes even lawyers get confused by legalese.

Paragraph 4 tells you something that could be important: “Players who reach the final day of play of any event are prohibited from placing wagers on that event.” If you read that literally, it could mean that you can’t place a wager after you have reached the final table, but you could place it before you reach the final table.

Paragraph 5 is captioned “Ownership of the Performance.” While the release never uses the word “copyright,” it seems to me it is addressing your copyright in the performance. The only problem is, copyright law probably does not provide for a copyright in a performance (except for a sound recording).

In 1986, a federal court determined in a footnote that a baseball player’s performance was copyrightable, but because the player was an employee of a team, the team owned the copyright. A few years ago, another federal court found that an actress had a copyright in her performance in a movie, sending shudders through Hollywood, but the decision was quickly reversed.

I think it unlikely that a court would find that a poker player’s performance was the kind of work of art appropriate for copyright protection, but just in case it did, the release works hard to deprive you of that copyright. First it tells you that your performance is a “work made for hire.” Under the Copyright Act, a “work made for hire” means either 1) a work created by an employee, or 2) one of nine kinds of artistic works (of which poker playing is not one) that is specially ordered or commissioned and there is also a written agreement that it is a work made for hire.

Just in case that definition is not satisfied, which is likely, you also agree to assign your copyright to Caesars, which would probably be effective if you had a copyright. Finally, it tells you that you agreed to give up your moral rights. Only visual artists have moral rights, like the right not to have their paintings altered by buyers, so this probably does not apply to you, but if it does, you have given up those rights.

Paragraph 6 is captioned “FCC Regulations,” but little of it has to do with FCC Regulations. It is mostly about Caesars’ right to prohibit you from wearing clothes and endorsements of which it does not approve. While this provision might make you think you can’t wear endorsements at all, the Tournament Rules, at least in 2019, were more liberal in allowing endorsements, though there is a long list of prohibitions, including logos advertising marijuana and cryptocurrencies. The latter, like a lot of the rules, is apparently subject to the Phil Hellmuth exception since Phil is frequently filmed wearing a hat promoting a certain cryptocurrency.

We will continue our examination of this document in the next column. ♠

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