In Austria, FIFA packs have been classified as “illegal gambling” We asked the well-known lawyer Christian Solmecke if such a ruling on loot boxes would also be conceivable in Germany.
What is happening in FIFA? Several Austrians had sued Sony in 2020, alleging that the company violated the Austrian gambling monopoly with the FIFA packs. The trial was then picked up 2 years later, in October 2022.
Now there is the ruling: The Hermagor court classifies the FUT packs as “illegal gambling” on February 26, 2023. Sony has been ordered to refund payments amounting to €338.26. However, the ruling is not yet final – Sony still has the option to appeal (via Games Wirtschaft).
In the Netherlands, however, a court ruling against the loot box mechanism has been overturned.
MeinMMO asked lawyer Christian Solmecke whether loot boxes in FIFA could also be classified as illegal in Germany. Solmecke specializes in Internet and media law. He runs a YouTube channel where law and gaming play a recurring role.
“Where there is no plaintiff, there is no judge”
MeinMMO: In Austria, the legal situation regarding gambling is different than in Germany. What are the rules in the neighboring country?
Solmecke: Gambling law is a matter for the federal government in Austria. In order for such activities to be legal in Austria, it is necessary that providers hold a valid license. Currently, due to the prevailing gambling monopoly, such a license can only be issued by the Austrian state. Should loot boxes be classified as gambling, loot boxes from providers without a license would be illegal. For them to be classified as gambling, it suffices under Austrian law that a purchase is made for something whose outcome primarily depends on chance and also has an economic value.
It is undisputed that the content of the “FIFA” packs depends on chance. The Austrian court also recognized that the “FIFA” packs constitute a “valuable service.” Therefore, in the court’s view, the loot boxes have a financial value, which is why they were classified as gambling. Since Sony as the defendant does not have a license in Austria, the court is convinced that the purchase contracts are invalid, allowing players to claim their bets back. By the way, the lawsuit was filed two years ago, but the ruling only came now.
MeinMMO: Why is there no such ruling in Germany yet?
Solmecke: Why there is currently no loot box ruling in Germany is a good question. The saying “Where there is no plaintiff, there is no judge” probably fits best here. However, I am sure that we can expect a ruling in Germany in the future. After all, the discussion is no less heated here.
Crucial for the classification as gambling in Germany is answering the question of whether the content of the boxes can be understood as a win in the sense of the gambling definition. If one assumes this, then the purchase of a loot box would be the acquisition of a chance to win. But that alone is still not enough. The potential win must also represent an economic value.
And here there are numerous open questions that are not yet conclusively answered. It is therefore entirely possible that loot boxes, depending on their design, could fall under gambling law in Germany and be classified as illegal. But the future will have to wait.
MeinMMO: How could developers or publishers protect themselves from falling under gambling law?
Solmecke: This question concerns an entire industry. The example of loot boxes shows how many pitfalls there are in reconciling chance mechanisms in computer games with gambling law. To navigate these safely, comprehensive legal advice is required in each case, since every manufacturer designs the implementation differently. Even the smallest missteps can have significant economic consequences.
What’s next for FIFA? The ruling in Austria leads to discussions about FIFA packs and loot boxes in general in video games. The decision of the Hermagor district court is described as a “sensational ruling” that could create waves throughout the industry.
So far, there are no restrictions on loot boxes in FIFA in Germany.
Regarding loot boxes, there have also been legal issues in the MMORPG Lost Ark: Could Lost Ark also be banned in Germany? We asked a lawyer
