Whether loot boxes are gambling is a matter for debate. There has not yet been a court ruling on this in Germany. There are various reasons for this, as Dr. Oliver Daum explains in an interview
Lootboxes were declared to be gambling by the courts in Hermargor and Vienna less than a year ago. Sony and Electronic Arts (EA) were ordered to pay back players who bought packs in Ultimate Team (FUT) in Austria.
A wake-up call for game providers in Germany? Although EA SPORTS FC 24 was approved for players aged 12 and over for the first time in the history of the game, there is still no ruling on loot boxes in this country. In an interview with eSport, lawyer Dr. Oliver Daum explains the difficulties involved in the assessment and the reasons why no proceedings have yet been initiated
Ingame currency as a loophole
Whether loot boxes are legally classified as gambling “depends in summary on three criteria: Chance, remunerative nature and chance of winning,” opens Dr. Daum.
At least with regard to chance, there is “agreement in the legal discussion that this is the case with loot boxes”. The chance of winning, on the other hand, is more difficult to assess – at least in the case of EA SPORTS FC 24. Unlike Counter-Strike, for example, items cannot be sold on a secondary market for real money. In FC 24 Ultimate Team, this is only possible on the in-game transfer market – but in exchange for an in-game currency
This actually plays a central role in the criterion of payment and is therefore used deliberately. Because in FUT, as we know, packs cannot be bought directly with real money. Instead, “an in-game currency must be purchased, which is ‘interposed’ between the real money and the purchase of the loot boxes. As it is disputed among lawyers whether the in-game currency has an economic value, it is unclear whether the required immediacy exists between the payment and the chance to win.” This is at least the current legal situation.
Total loss: between theory and practice
At a recent expert discussion, an additional criterion was put forward in addition to remunerability: total loss. “Only if a player could lose his entire stake would the criterion of remuneration be fulfilled in this case,” says the lawyer. As can be guessed, however, there is no clear line of approach in this respect either.
The total loss must be assessed individually. “If you have a very good team, it is very often a total loss, as there are only a few cards left that would improve the team,” explains Dr. Daum. The opposite is true for weaker teams, of course. Whether courts in Germany would attach any importance at all to the aspect of a total loss cannot be assessed at present.
Given the “risk of getting burned “
Many question marks that can really only be resolved by a court ruling. The arguments of the courts in Austria could certainly “also be applied to German law”. The question therefore arises as to why there are still no proceedings in Germany.
There could be several reasons for this, as Dr. Daum suspects. Firstly, the judgments in Austria do not guarantee the same outcome here in Germany. So there is a risk of “getting burned by it”. But the main reason lies in the costs, as the lawyer has already experienced himself: “Sometimes I get inquiries about other gaming issues. If I only list the minimum costs, I don’t get any more replies. I suspect that the costs scare many people off. “
Would loot boxes be banned if they were classified as gambling?
Finally, the question remains as to what consequences a ruling would have if loot boxes were classified as gambling. Would they then have to be banned, as in the Netherlands or Belgium?
Dr. Daum explains: “If loot boxes meet all the criteria of gambling, publishers would have to apply for a gambling license. If loot boxes are ‘gambling on the Internet’ according to the Interstate Treaty on Gambling, then no license could be applied for for loot boxes because the Interstate Treaty on Gambling does not provide for official approval for loot boxes. Loot boxes would therefore be illegal and could not be offered in their current form – regardless of whether the players are children, young people or adults. “
Neither way: whether FUT packs & Co. are gambling or gambling on the internet can only be discussed at present. Only a ruling could shed light on the matter and even start a wave of legal action. However, it cannot be ruled out that a court would come to the conclusion that loot boxes are not gambling. The risk of “getting burned”
