Contracts And Poker: What Is In That Release You Signed? Part 3

In the last two columns, we have been reviewing the release that players sign in order to play in WSOP Circuit events and that may be used for the 2023 World Series of Poker. Check out part 1 and part 2. Let’s wrap it up by finishing our examination of the “Miscellaneous” provisions.

The fourth sentence contains a couple of typos, but it is trying to say that you entered the agreement in reliance on your own judgment or on the advice of an attorney. (How many of you did the latter?) Supposedly this prevents you from claiming that you entered it under duress or were unfairly persuaded, but I’m not sure this statement proves that. After all, if I hold a gun to your head and make you sign an agreement, the fact that the agreement says, “Burnham didn’t hold a gun to my head and make me sign this agreement” would not prevent you from proving that.

The next sentence is the “no oral modification” clause. Just as the parol evidence rule (discussed in Part 2) bars oral agreements made before we signed, this one purports to bar oral agreements made after we signed. The trouble is, this boilerplate appears in every contract, and the parties rarely know it is there, so courts are likely to enforce an oral modification, especially if you relied on what the other party said they would do or not do.

The next sentence says that the headings are just for convenience and don’t have substantive significance. This issue usually arises when there is a problem of interpretation – deciding what the language means. For example, I mentioned in the first column that the heading for Paragraph 6 is “FCC Regulations” but the provision is mostly about regulations imposed by Caesars, and not by the FCC. If you tried to argue that the regulations imposed by Caesars don’t count because the heading says it is limited to FCC Regulations, this boilerplate would be used as an argument against you, and you would probably lose.

The next sentence says that the law of Nevada applies to the agreement. This “choice of law” does not mean that you have to sue in Nevada; it means that whatever court you sue in will apply Nevada law. Choice of law clauses are generally enforceable unless the chosen law is contrary to the policy of the state law that would otherwise apply. However, a later sentence adds a “choice of forum” clause that states that you have to bring any suit in Clark County, Nevada. So you can tell your spouse, “Honey, I don’t really want to go to Vegas, but they are forcing me to go there to bring my lawsuit.”

In between choice of law and choice of forum is the divisibility clause. It asks a court that finds part of the agreement to be illegal to strike that part and enforce the rest. That is generally what courts do anyway, unless the illegality taints the entire agreement, in which case they will throw out the whole thing. After all, if you find a rotten piece of meat in a bowl of soup, you probably don’t throw out the rotten part and then eat the rest.

The next sentence is the all-important attorneys fees provision. The general rule in the US is that each side pays its own attorneys fees whether they win or lose. That is why someone famously said, “I came close to ruin twice in my life – once when I lost a lawsuit and once when I won one.” But that is a default rule you can change, and here it is changed by stating that the losing party has to pay the fees of the prevailing party. So that should discourage you from bringing a frivolous case. On the other hand, if you have a really good case, an attorney should be happy to bring it, knowing Caesars will have to pay for their services if you win.

It then states that you agree to sign any additional documents necessary to carry out this one. No big deal there as long as they don’t use it as an excuse to add anything new.

The next two sentences are interesting. The first says that Caesars does not have to pay you anything for entering the agreement. This is an unusual provision to find in a contract, and it has its source in one of the essential requirements of contract law – consideration. The consideration doctrine says that each party has to get something from the other in order to make the contract enforceable. That is why promises to make a gift are not enforceable. I promise to give you $1,000. What did you promise to give me in return? If the answer is nothing, then there is no contract and my promise is not enforceable. To make it enforceable, I have to get something from you, even though it doesn’t have to be the equivalent in value of what I am giving you; as some of the old English cases said, it could be a peppercorn.

So in this agreement you are promising Caesars that you will do a lot of things, but what has Caesars promised to do for you in return? The final sentence purports to answer that question: “The full and complete consideration provided to Player by PROPERTY for execution of this Agreement is PROPERTY’S agreement to permit player to participate in the WSOP Events under the terms and conditions herein described.” Is the privilege of allowing you to play worth at least a peppercorn? It probably is. You don’t have the right to participate, so Caesars is giving you something when they allow you to play.

Now you know what you got into when you signed up to play in WSOP events. Good luck to you in making the most of it!

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