WILLEMSTAD – Companies that held master licenses under Curaçao’s former online gambling system were responsible for keeping records on players and the online casinos operating under their licenses. If information they were required to retain can no longer be produced, the consequences fall on the license holder, according to the Joint Court of Justice.
The Court made the finding in a long-running dispute between Gaming Services Provider (GSP) and the Foundation for the Protection of Victims of Online Gambling (SBGOK), a foundation representing foreign players seeking to recover money they say was not paid out by online casinos.
The case concerns Curaçao’s former master license and sublicense system. Under that structure, a Curaçao-based company held the master license while numerous online gambling operators could offer their services under sublicenses connected to that license.
According to the Court, a master license holder cannot simply argue years later that information concerning individual players or operators is no longer available.
The licensing conditions required records of communications concerning participation in gambling activities to be stored. Information also had to be maintained on a daily basis showing which games were played, the amounts wagered and winnings.
The Court concluded that if GSP no longer possesses information it was required to keep at the time, that lack of information is at GSP’s own risk.
The ruling could be significant in disputes involving Curaçao’s former licensing system, particularly cases in which players seek to establish what happened to funds held by online gambling operators.
SBGOK is pursuing claims in the case on behalf of nine players who allegedly had outstanding balances with online casinos including 90Dakika, Halkbet, Suprabets, Dobrobet and Kavabet. The foundation sought to hold GSP, as master license holder, responsible for amounts the players say they never received.
However, the Court did not side with SBGOK on all issues.
A major part of the ruling concerns whether players can transfer their claims against an online casino to an organization such as SBGOK. Such a transfer is legally known as an assignment, or “cessie.”
The Court ruled that an online casino may include provisions in its terms and conditions preventing a player from transferring such a claim to another party. According to the Court, such restrictions are not automatically unreasonable.
Among the considerations cited are risks associated with fraud, money laundering, terrorist financing and the trading of player accounts.
The Court also rejected an alternative arrangement under which SBGOK would formally receive only authorization to collect the money on behalf of a player. According to the ruling, such an arrangement cannot be used to achieve essentially the same result as an assignment that has been contractually prohibited.
That finding had immediate consequences for seven players who had accounts with Halkbet.
Halkbet’s conditions stipulated that payments could only be made to the owner of the player account. The Court considered this sufficiently clear to prevent the players from transferring their claims to SBGOK.
The claims involving those seven players were therefore rejected.
A similar issue arose with Suprabets. Its conditions expressly stated that a player account and the player’s rights were non-transferable. That claim also failed.
At the same time, the Court drew an important distinction concerning restrictions contained only in a master license holder’s own licensing conditions.
A license holder cannot automatically enforce such provisions against individual players. If a restriction is intended to bind a player, it must be sufficiently clearly incorporated into the online casino’s terms and conditions.
The Court also addressed SBGOK’s argument that certain general terms and conditions should not apply because players had not been given an adequate opportunity to save them.
According to the Court, operators were not necessarily required to provide a separate download button, PDF file or email containing the terms. Even if the conditions could only be preserved at the time by copying the text, that does not automatically make them invalid.
Nor does a player actually have to read the terms for them to apply. The relevant question is whether the player was reasonably given an opportunity to view and retain them.
The litigation is not yet over. The Court has not issued a final ruling on all of the amounts SBGOK is attempting to recover on behalf of the players.