Is There A Problem With Operator Terms & Conditions? A Lesson From Across The Pond

Mr. Green was on a roll. It was just after midnight in the U.K. when he started playing online the just released Franki Dettori’s Magic Seven Blackjack game on Betfred. Five and a half hours later, Mr. Green had accumulated more than 1.7 million pounds worth of chips, compliments of a side wager that he had been betting throughout his time on the game. Mr. Green’s luck did not extend to the withdrawal process.

When he attempted to move his winnings into his cash account, he was unable to do so. Customer service was reassuring that routine checks had to be conducted before Mr. Green would be able to realize his winnings. Mr. Green, content that the money would be forthcoming, set out for a night of celebration with family and friends. The reassurances continued when Betfred’s VIP team told Mr. Green the game provider, Playtech, had to conduct a double-check given the size of the winnings but that this was standard procedure.

Two days later, the news was different. Mr. Green was informed that Playtech had determined a glitch that gave a player — like Mr. Green — who continued the game without taking a break, much better odds than were intended.  Betfred told Mr. Green that as a result of the glitch he could not be paid out. And so began the litigation, Mr. Green v. Petfre Limited t/a Betfred.

To exclude, or not

At issue in the lawsuit, which was filed in the U.K. in 2020, were the Terms & Conditions that Mr. Green had agreed to when he first initiated play on the Betfred platform several years prior to playing the Magic Seven Blackjack game and the side bet. Mr. Green sought summary judgment in the case to recover what he said were his rightful winnings. Betfred, on the other hand, denied the obligation to pay, pointing to its Terms and Conditions and related documents. According to Betfred, the documents stated that a “defect” or “malfunction” in the game or software meant Betfred was not liable to pay Mr. Green’s winnings. Mr. Green argued that the exclusion clauses did not cover the events in question and that he had not been sufficiently notified of the clauses so was not bound by them.  

The Court pinpointed as the central issue in the case whether the exclusion clauses did what Betfred said they did. Even though a few years have passed since the litigation, the Court’s analysis of that question remains instructive for the U.S., where betting products and markets are less mature and operators, players, and regulators are still assessing how Terms and Conditions should and do work. Are they effective protections and just whom do they protect?    

Back to Mr. Green. According to the Court’s opinion, Mr. Green registered for a Betfred online account in 2012 and at that time, he was presented with a checkbox accompanied by text stating “I accept Betfred’s Terms and Conditions, Rules and Privacy Policy.” Mr. Green acknowledged checking the accept box but told the Court “it was irrational for Betfred to have believed he had accessed, read, and understood them, and accordingly they were not incorporated into the contract between the parties.” The Court noted that the Terms and Conditions document was “closely typed, of about 24 pages when printed, the contents of which were updated from time to time.” Those updates occurred within the documents with no further notice to players beyond a statement in the original documents that the terms could be updated in the future.

The Court highlighted numerous specific clauses before concluding that the Terms and Conditions does not make clear “exactly what a player is obliged to agree to, nor where to find it.” The Court noted, specifically, issues with incorporation of phrases used in the documents, use of vague generalities, a lack of definitions for key terms such as “malfunction,” the repetitive nature of the clauses, and overuse of all caps that diminished their importance as signposting important sections. While none of these issues were found to be fatal, the Court stated that “they are not at first blush features of an open and fair consumer contract that is easy to access and understand.” 

A few of the Court’s conclusions are worth quoting:

• The stated obligation on the player of online gaming to consult an attorney if in any doubt over meaning is, in the context of a contract for an online consumer betting facility, in [the Court’s] view, a singularly ineffective attempt to shift the burden of providing clear language and proper warning where liability is sought to be excluded.
• The lawyerly phrase “including but not limited to” is unlikely to mean much to the layman consumer in [the Court’s] view, absent a clearer indication. Certainly nothing in this phraseology suggests that the player is being directed to a term that purports to allow Betfred to sweep away the whole of his winnings after a significantly extended period of apparently unimpeachable play where neither he nor they have, or could have, any idea there is anything amiss.
• In [the Court’s] judgment it is unreal to suggest that a player will either realise the import of the bare figures given as the RTP, or recognise they may not have been reflected in what has happened. Nor would a player know that there has been an occurrence inconsistent with Betfred’s intended operation of the Game. 
• The observations made … when analysing the documents lead [the Court] inexorably to the conclusion that, whatever their true meaning, none of the terms seeking to exclude liability was sufficiently brought to the attention of Mr Green so as to be incorporated in the gaming contracts he entered with Betfred.
• … this is the result of the combination of inadequate signposting to these significant exclusions of liability, and the failure to highlight the meaning and effect intended. The unhelpful, often iterative presentation in closely typed lower-case or numerous paragraphs of capital letters meant that the relevant clauses were buried in other materials. 
• These features are exacerbated by the fact that the player must click through and scroll online, searching out what appears to be relevant to him. [The Court would] not go so far as to say that it was fanciful to expect that Mr Green would access the Terms and Conditions at all … but having accessed [them], it is quite unreasonable to expect he would have found and noted the importance of the key clauses relied upon. This is overwhelmingly obvious in the case of the Game rules where it is highly unlikely, in [the Court’s] view, he would have gone beyond the description in the earlier part of the document as to what to do to play the Game.
• A player is most unlikely to spend significant time trawling through documentation, particularly if it is repetitive and not clearly relevant to him. The exclusion of or limitation to liability to pay in circumstances where play has continued over a number of hours and is ostensibly wholly valid, is something that would need to be achieved with great care and particularity.

In the end, the Court found for Mr. Green, concluding, in part, that “[e]ven if the words of the clauses relied upon by Betfred were adequate to encompass the fault in the Game and adequately brought to Mr. Green’s attention so as to be incorporated in the contracts of gaming, they were not transparent or fair and Betfred [was] not entitled to rely upon them.” 

Onward and stateside

As the U.S. gains experience with sports betting and iCasino products, it would not be surprising for Terms and Conditions in use here to continue to come under increased scrutiny. It is inevitable that there will be future challenges to what some players perceive as an operators’ get-out-of-jail-free card. Regulators too have been criticized for letting an operator off the hook by stating case closed because insert issue is covered in the Terms and Conditions. On the other hand, operators face the dilemma of how to sufficiently notify players of significant contract terms without overwhelming them with a blizzard of legalese.  

A survey of the Terms and Conditions currently being used by some of the larger U.S. operators indicates improvement over the not so long ago days of Mr. Green. While the agreements remain long, some operators at least provide section heading hyperlinks to assist in navigation. Some also appear to have worked to incorporate more easily understood language in certain areas.  These are not wholly consistent practices, though, and there are areas ripe for continued improvement including addressing:

• Length and complexity of the documents — These attributes discourage players from reading the documents and encourage acceptance without a full review or understanding.  
• Ongoing changes — Companies that reserve the right to change terms at any time without further notification make it difficult for players to keep up with current policies.  
• Lack of regulatory standards — Regulator evaluations of the agreements could encompass fairness standards to ensure the information being presented to the player is clear and can be reasonably understood.  
• Multiple agreement acceptance — Requiring users to agree to multiple documents such as Terms and Conditions, Rules, Privacy Policies, and End User License Agreements can add to overlap, confusion, and acceptance without review.
• Broad permissions — Companies can use vague language to grant themselves broad permissions and extensive access to user data without players knowing exactly what they have agreed to.
• Limited visibility — Click-wrap agreements requiring users to click through links to confirm their acceptance can discourage players from reading the full terms.  
• Take-it-or-leave-it contracts — The agreements are contracts of adhesion meaning players have no ability to negotiate the terms. The only recourse for a player who does not like or understand a provision is to go play somewhere else.

The solution lies in implementing clearer language, shorter agreements, and more transparent practices, but that is easier said than done. It is not easy, for instance, to explain arbitration provisions in a few simple sentences.

At the end of the day, it is in an operator’s best interests to ensure its agreements are not confusing and that players are given a meaningful opportunity to read and understand them. Otherwise, an operator could find itself with an enforceability problem. And, as was the case with Mr. Green, an unenforceable agreement can be expensive.  

Susan Hensel is co-founder of Hensel Grad P.C., a law and consultancy firm focused exclusively on gaming clients. She is the former director of licensing for the Pennsylvania Gaming Control Board and the former two-term president of the International Association of Gaming Regulators. Susan has spoken around the world on gaming law and regulation. All opinions expressed are hers alone.