Published: April 5, 2023

Austria: A court in Carinthia agrees with the plaintiffs: Sony is violating the Austrian gambling monopoly with loot boxes in the FIFA soccer game

A court in Carinthia agrees with the plaintiffs: Sony is violating the Austrian gambling monopoly with loot boxes in the FIFA soccer game .

Update from April 4, 2023: According to GamesWirtschaft information, the defendant PlayStation Store operator Sony Interactive let the deadlines elapse and did not appeal - the judgment of a Carinthian court of February 26 is therefore final.

It is the first judicial finding in German-speaking countries that loot boxes - in this case FIFA packs - are to be classified as games of chance.

The plaintiff gets back his stake of €338.26. Nevertheless, further lawsuits are pending against Sony in Austria, which involve much higher sums: In Vienna, for example, a similar case is being heard in which a 26-year-old lost more than €11,000 through FIFA loot boxes. A verdict is expected in the coming months - outcome: open.

The law firm commissioned had announced in December that it would fight the processes up to the highest instance if necessary – in this case: the Supreme Court (OGH).

Update from March 6, 2023: We have received many inquiries via email and social media as to why the lawsuit is directed against Sony Interactive and not against FIFA manufacturer Electronic Arts. As explained in the October 18 update, this is because the sales contracts with Sony Interactive – i.e. in the PlayStation Store – have come about.

Update from March 3, 2023: The litigation financier involved speaksof a trend-setting "sensational judgment" : On February 26, the district court of Hermagor classified the controversial loot boxes as "illegal gambling" and ordered Sony Interactive Entertainment Network Europe Limited to refund payments in sentenced to the amount of €338.26. The FIFA Ultimate Team packs are to be classified as “gambling games that require a license” .

The verdict is not yet final, so the PlayStation manufacturer can appeal.

According to the court, the result of the content of the purchased FIFA packs depends on chance and therefore represents a " financial benefit within the meaning of the Austrian Gaming Act" - because the digital football stars are traded on a secondary market and this makes it possible to make a profit. Since Sony Interactive does not have a gaming license, the contracts concluded between the company and the plaintiff are void.

Richard Eibl, Managing Director of the litigation financier Padronus : "The verdict is a bang for the entire video game industry. Neither in Austria nor in Germany has there been case law on the question of the legality of loot boxes and the reclaimability of payments made. Of course, the final result remains to be seen, as the proceedings will probably go up the courts, but Sony and several other gaming groups should dress warmly from now on.

According to the law, it is sufficient for the subsumption under gambling if a purchase is made for something whose result firstly depends primarily on chance and secondly has an economic equivalent, according to Eibl: "The court proved us right and explained plausibly why this was the case is the case with FIFA packs. In terms of staging, Sony is also strongly oriented towards conventional games of chance when buying the loot boxes. Audiovisual enticement elements such as fireworks are used to trigger dopamine release in predominantly male adolescents. It was only through talking to our customers that we realized how addictive the FIFA packs are and how pathological the purchasing behavior of some players is.”

Michael Linhard from Salburg Rechtsanwalts GmbH in Vienna: "The judgment points the way for dealing with Looxboxes and shows that video games are not a legal vacuum."

According to the company , a four-digit number of FIFA users have contacted Padronus so far: On average, the claims are around €800 - in a particularly extreme case it is even up to €85,000.

Update from December 15, 2022: The case of a 17-year-old Kärtner (see below) is just one of a total of five lawsuits that the Viennese law firm Salburghas filed against Sony Interactive and FIFA manufacturer Electronic Arts. This is reported by the portal heute.at .

The allegation in all cases: Violation of the gambling monopoly in Austria - the mechanism is reminiscent of slot machines, according to lawyer Sebastian Furtmüller. His 26-year-old client gambled away around €11,000 with several FIFA titles through the use of so-called loot boxes.

The hearing has already been concluded – the parties to the process are now waiting for the written verdict. Furtmüller is "cautiously optimistic" because this is new legal territory. If the court decides in favor of Sony and EA, the law firm plans to appeal and, if necessary, go all the way to the Supreme Court.

The Salburg lawyers had expressed the expectation to GamesWirtschaft that if the case was successful, a veritable “law avalanche against all possible providers of loot boxes” could be expected.

Loot boxes in FIFA: Austrians sue Sony

Update from October 18, 2022: The Viennese law firm Salburg expects a judgment in the proceedings against Sony Interactive before the end of this year. This emerges from the answer to a GamesWirtschaft request.

There is a simple explanation for the often-discussed question of why the lawsuit is being brought against the console manufacturer and not - as one might expect - against the FIFA manufacturer Electronic Arts: Because the purchase contracts in the PlayStation Store were concluded with Sony.

According to the law firm, the primary goal of the lawsuit is for the client to get his money back. In the event of success, however, it cannot be ruled out that an avalanche of lawsuits against all possible providers of loot boxes will start, at least in Austria.

For its part, FIFA manufacturer Electronic Arts has for years defended itself against the criticism that loot boxes are Pay2Win or gambling mechanisms: Rather, it is about “skill, ability and experience” .

Report from October 17, 2022: As early as August 2020, the public ORF reported on a then 17-year-old trainee from the Carinthian village of Weißbriach, who was taking on the Japanese PlayStation group Sony. According to an ORF report, the civil law process at the Hermagor District Court began today, Monday .

Lawyer Ulrich Salburg's client is said to have 'gambled away' €400 on the console by buying FIFA points in the FIFA football game from Electronic Arts. This can be used to unlock randomly generated football stars – anyone who can place Benzema in midfield or Neuer in goal will inevitably have game-changing advantages in online games.

Youth and consumer advocates see gambling-like mechanisms with potential for addiction in such loot boxes , which has already led to regulation and even bans in some EU countries.

This is exactly where the lawsuit comes in: because the Viennese lawyer Ulrich Salburg is suing for violating the state gambling monopoly in Austria. In addition, it is usury because the limited freedom of choice of customers is exploited.

In this context, it remains unclear why the console manufacturer Sony, of all things, is being sued , which 'only' provides the platform - and not the FIFA manufacturer Electronic Arts. According to ORF, Sony is said to have insisted as early as August 2020 on hearing the case in the capital Vienna or at the European headquarters in London - but the request was not granted. Sony Interactive Entertainment GmbH, based in Neu-Isenburg near Frankfurt, is responsible for selling PlayStation consoles in German-speaking countries.

Although the process is now taking place in the small 7,000-person community in Carinthia, it could have far-reaching consequences for the distribution of computer games in Austria and beyond. Because apart from Electronic Arts, other game manufacturers rely on loot boxes and comparable business models.

Like its predecessors, FIFA 23, which was released on September 30, has no age restrictions in Germany .

GamesWirtschaft has asked the commissioned law firm for a statement - update will follow.

 

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