In November 2023, we shared an insightful blog post discussing a significant legal development on loot boxes. Back then, the Regional Court for Civil Matters Vienna issued a pivotal appeal decision, ruling that FIFA’s loot boxes are to be classified as unlawful gambling under Austrian law. This landmark judgment implied that players who have spent money on these loot boxes are entitled to reclaim their stakes. This case set a precedent, encouraging many other players to come forward with similar claims.

In a significant turn of events, the legal landscape surrounding FIFA’s loot boxes has evolved further. Following the landmark decision by the Vienna Regional Court for Civil Matters, a new ruling was issued by the Higher Regional Court of Vienna in September 2024. The latter is a court of higher instance and the appeal court for the former. This latest decision by a higher court dismissed a player’s lawsuit for the repayment of deposits made for loot boxes, determining that FIFA’s loot boxes do not qualify as games of chance under Austrian law. 

The ruling of the Higher Regional Court of Vienna marks a notable shift in judicial perspective and has important implications for both players and game publishers. 

Loot Box Regulation

The European legal landscape regarding loot boxes remains highly fragmented, with different member states adopting varying approaches.

This lack of harmonized legislation creates significant legal uncertainty for game publishers, who must navigate a complex web of national laws. Despite these challenges, the gaming industry continues to advocate for a balanced regulatory framework that protects consumers while fostering innovation and growth.

Ruling of the Higher Regional Court of Vienna

Compared to the other Austrian courts that have already ruled on loot box cases, the Higher Regional Court of Vienna took a new approach in its ruling dated September 30, 2024. The court’s reasoning was based on the Austrian Gaming Act, which defines a game of chance as one where the outcome depends predominantly on chance. Importantly, the court closely examined the player’s intention when starting to play the FIFA Ultimate Team ("FUT") mode. The court found that the player intended to use the obtained digital items solely for in-game use and not for economic valorization outside the game. Further, FIFA's terms clearly prohibited the use of EA currency and FUT items outside the game.

The court emphasized that the player acquired the FUT packs without any economic objective, solely to enhance his gameplay experience in FIFA. The randomly generated items of the "FUT packs" did not introduce any economic uncertainty for the plaintiff, as the items were only useful within the game. Therefore, the court ruled that the purchase and opening of FUT packs lacked the characteristics of a gambling contract, as there was no economic risk involved. 

Notably, the Higher Regional Court of Vienna thoroughly assessed the criteria of a "game" according to section 1 of the Austrian Gaming Act, a level of scrutiny that other courts and legal doctrines had not previously applied. As a result, the court concluded that the economic risk – typically inherent in gambling contracts – is not given in this case. Ultimately the court dismissed the claim for repayment, concluding that the loot boxes do not qualify as games of chance.

In light of the absence of a Supreme Court ruling on this matter and the numerous court cases pending, the Higher Regional Court of Vienna has explicitly allowed an ordinary appeal to the Supreme Court. Given this context, it is likely that the plaintiff will appeal this second-instance ruling. This ongoing legal battle underscores the complexity and significance of the issue, with potential far-reaching consequences for the gaming industry.

Conclusion

The Higher Regional Court of Vienna’s ruling on loot boxes marks a positive development for the gaming industry, as it provides a degree of clarity and support for game publishers. However, given the explicit allowance for an ordinary appeal and the absence of a Supreme Court ruling on this matter, it is likely that the plaintiff will challenge this decision. A definitive ruling from the Supreme Court would be highly beneficial for the gaming industry, as it would establish clear legal guidelines and reduce the current uncertainty surrounding loot boxes. Such a ruling would not only provide legal certainty but also help in shaping a balanced regulatory framework that protects consumers while allowing the industry to innovate and grow.