An interesting new clause appearing in several sets of bookmaker T&Cs has recently been brought to our attention. This short article addresses two of the clause’s more striking features.
In a series of articles published earlier this year we looked at several of the more problematic provisions of the T&Cs employed by some online bookmakers. Many of the issues identified came up in the context of clauses dealing with the bookmaker’s purported right to refuse to pay out where it suspects some kind of impropriety on the part of the punter – what we have referred to for ease of reference as the ‘no funny business’ clause. The term that is the subject of this article, brought to our attention by a concerned punter, is just such a clause but is of particular interest for two reasons. Firstly the author of this clause takes an unusually creative approach to the question of whether the bookmaker needs to show reasonable grounds to suspect impropriety before refusing to pay out. Secondly the clause appears to be an attempt by the bookmaker to award itself a ‘get out of jail free’ card in circumstances where it decides that it has been too generous in the odds it has offered on a particular event.
The clause in question includes a passage along the following lines:
“Where we believe that there are reasonable grounds to believe the following has occurred:
[…] where the possibility of a bet being successful, based on the odds at the time it was placed is considerably different to the odds that would be expected on the basis of the information to hand when the bet was struck; […]
then we reserve the rights to void all such bets”.
Note where the word ‘reasonable’ appears in the opening sentence of this provision. The clause does not say ‘where we reasonably believe that there are grounds‘ (which would require the bookmaker’s belief not to be an unreasonable one) but rather ‘where we believe that there are reasonable grounds‘ (which simply requires the bookmaker to believe its grounds are reasonable). In other words what matters according to this clause is not whether Honest Joe is acting reasonably but whether he believes he is acting reasonably. This is of course an important distinction.
The test for what is or is not reasonable in this situation plainly ought to be an objective one. Put another way deciding whether Joe has acted reasonably should not come down to whether Joe himself ‘believes’ he is being reasonable but must surely be a matter of deciding what the man on the street, having been furnished with the relevant facts, would consider is reasonable behaviour in the circumstances. If it simply came down to whether Honest Joe felt he should pay out, there would be very little point in Parliament’s decision to subject gambling contracts to the jurisdiction of the Courts.
Sadly, as discussed in earlier articles, clauses containing provisions that seek to suggest to punters that the bookmaker can act as judge, jury and executioner on the subject of whether there has been any suspect activity on the relevant account are not particularly unusual. In that regard the clause above is simply a more creative approach to what seems an attempt at a heavy-handed restriction on the rights of punters. What is more extraordinary about this clause is that it appears to suggest that Honest Joe can void a bet in extremely surprising circumstances.
On our reading (and while the drafting is admittedly somewhat hard to follow) the second part of the clause set out above implies that at some future point it is possible to look back on a bet and conclude that the odds agreed were in some way ‘wrong’ when viewed in the context of all of the relevant information available at the time when the bet was struck. That is a very odd provision indeed given that it is of course the bookmaker rather than the punter who sets the odds and that he does so, it must be presumed, based on the information “to hand when the bet was struck.”
It is an open secret that bookmakers do not want the patronage of punters who can spot good value and in fact regularly restrict the stakes of losing punters where the punter has shown signs that he or she tends to get on at prices that subsequently shorten. In light of that unfortunate reality, the purpose of this part of the provision perhaps starts to become slightly more apparent. In essence the clause seems to represent an attempt by the bookmaker to reserve the right to void bets where it later decides that the price offered was too generous.
Annoying though it is for punters, bookmakers are not obliged to take bets from anyone. But refusing to take future bets is a very different thing from voiding settled bets because a punter has spotted good value. Surely any right for Honest Joe to void a bet based on his view that the odds he offered were too generous is a breach of the very essence of a gambling contract which after all depends on the differing views of the punter and the bookmaker as to the likely outcome of an uncertain event?
It is very hard to imagine any court interpreting this clause so as to allow Honest Joe the ‘get out of jail free card’ he arguably appears to be trying to award himself with this clause. However, as identified in our earlier articles, that does not mean that the clause cannot be used to scare off punters who are entitled to their winnings and for this reason it is to be hoped that the Gambling Commission and the Competition and Markers Authority will make it clear that clauses of this nature need, at the very least, to be set out in plain English.
This article does not constitute legal advice – see ‘Legal’.