In the so-called game mode "FUT" (FIFA Ultimate Team) of the popular soccer simulation game "FIFA" you can buy so-called "FIFA Packs" with real money. These "FIFA packs" contain either good or bad players. According to the developers the end of the line or the end of a relation to the real world is reached here - that is after opening the "FIFA Packs". According to the terms and conditions it is only possible to use the drawn, more or less good players in your team or to sell them on the in-game marketplace against so-called "FIFA-Coins" (in-game currency).
The situation differs from the classic game of chance in that the chips won from the roulette game can be exchanged for a "hard" currency, e.g. the euro, after a visit to the casino. The players drawn from the "FIFA packs" however not. According to the developers' concept, they do not represent a monetary benefit.
But a quick Google search reveals the fallacy. A number of unlicensed but highly professional platforms on the Internet sell individual players to well-off users or their accounts, and payment can be made using all common payment methods.
If you don't feel like or don't have the necessary luck to draw Paris St. German star Kylian Mbappé in a "FIFA pack", you can therefore simply transfer 1293.41 USD. Just as easily you can buy and sell there the actually purely in-game currency "FIFA-Coins". Even if trading on such a secondary market is unambiguously forbidden by the general terms and conditions, the existence of such a market alone blurs the difference to the "classical gambling" described at the beginning, because now the content of the "FIFA Packs" - in the analogy to gambling thus the casino chips - very well get a price in the "real world".
Start of a line of judicature by BG Hermagor?
This is exactly what the District Court Hermagor has determined and awarded a FIFA player the money spent for the "FIFA Packs". Because "FIFA Packs" would constitute gambling, a license is still required for this in Austria due to the state monopoly, and gambling contracts contrary to this regulation are therefore null and void, Sony (the defendant in these proceedings) must pay back € 375.
A murmur goes around in the entire (at least Austrian) gaming industry. Similar to the opening of a "FIFA pack", we think it can be assumed that the BG Hermagor was also not fully aware of what this step actually entails when reaching its verdict. Should this decision become permanent case law, all such forms of loot boxes (the name given to purchasable bundles of game elements where chance decides how valuable the game elements contained therein are) for which a secondary market exists would be illegal. Apart from FIFA, this applies to almost all first-person shooters and a large number of other games.
Transfer to trading cards?
But aren't the principles of this case law also applicable in the analog world? Older or analog gamers and collectors might be familiar with the concept of "Panini stickers" or other trading cards, such as "Pokemon cards". Consequently, the principles discussed above should also be applicable to these trading cards. I buy one of the packs with money without knowing what is in it, this is decided by chance. With luck, I get a particularly valuable card, which could then also be monetized on the secondary market. In 2020, the "Pokemon card" "Pikachu Illustrator" was auctioned for a proud 230,000 USD.
Not least due to the hardly broken popularity of online trading platforms, a de facto secondary market now exists on the Internet for almost everything. Although BG Hermagor has indicated that this secondary market may not be completely negligible, we will have to wait for subsequent case law to define exact limits or criteria.
Apart from this apparently central requirement of a secondary market, which still needs to be defined in more detail, other (missing) criteria could also somewhat restrict the transferability of the "gambling case law" to many other products that were previously considered completely unobjectionable.
In our opinion, the application to the popular panini stickers is out of the question. In this case, there is no compelling connection between the aleatory element and the chronologically second asset performance, i.e. the asset performance that could be achieved on the secondary market through a sale. It is possible to order individual "Panini stickers", but all players cost the same, regardless of whether they are Brazilian world stars or Austrian provincial players. Also, at least according to the manufacturer Panini, the chance of drawing a certain player in a pack is the same for all players.
In our opinion, something else must apply e contrario to "Pokemon cards" or similar trading cards, where some special cards are rarer than others and such cards also fetch a significantly higher selling price on the secondary market. There, the classic gambling prerequisites (purchase of a chance with an asset-based performance, the random result of which can be sold for an asset-based performance) would be fulfilled. Also, any secondary market materiality threshold can arguably be considered exceeded for transactions of six-figure dollar amounts for a "Pikachu card." However, this view inevitably leads to the conclusion that the sale of "Pokemon cards" in Austria is not only illegal, but buyers could also reclaim their money.
It is still too early to be able to discern a definitive line of jurisprudence. Due to the low amount in dispute, the case before the Hermagor Regional Court could not be brought before the Supreme Court for formal reasons. However, it is only a matter of time until the big game developers will go through the process of appeal, after all, especially in online gaming, loot boxes are one of their most lucrative features.
