Loot boxes have been one of the most controversial monetisation measures in video games for years. The Supreme Court now had to judge for the first time whether the „packs“ offered in the „Ultimate Team“ game mode of the football simulation series EA Sports FC (formerly „FIFA“) qualify as gambling within the meaning of the Austrian Gambling Act („GSpG“).

Put simply, loot boxes are surprise or treasure chests in video games that players can purchase for a fee in order to receive randomly generated content. This can unlock weapons, equipment or cosmetic upgrades that improve the gaming experience. In „Ultimate Team“, virtual footballers are „won“ by purchasing packs, which can be used to strengthen your own team. Which players are actually included is determined by a random algorithm.

As this type of monetisation can lead to high expenditure, especially among younger players, loot boxes have been criticised for years in terms of legal policy. This is because video games in general can have a certain addictive potential, which can be intensified by loot boxes. If loot boxes were to be classified as gambling by unlicensed providers - and therefore as illegal gambling - the stakes placed on them could in principle be reclaimed.

In the literature to date, loot boxes have often been categorised as games of chance: In order to fall under the gambling monopoly, a game whose outcome depends exclusively or predominantly on chance is required pursuant to Section 1 (1) in conjunction with Section 3 GSpG. A gambling contract within the meaning of Section 1267 ABGB must exist and the outcome of the game must be predominantly dependent on chance. The outcome of the game must therefore be unpredictable and beyond the player's control.

Why did the Supreme Court (6 Ob 228/24h) nevertheless not qualify the loot boxes in „Ultimate Team“ as gambling within the meaning of the Austrian Gambling Act and thus „put a stop“ to players' claims for repayment?

In its decision, the Supreme Court essentially focussed on two questions: firstly, whether the loot boxes should be considered in isolation - i.e. detached from the overall game mode - and secondly, whether a game of chance within the meaning of Section 1 (1) of the Austrian Gaming Act (GSpG) exists.

In the opinion of the court, the purchase and opening of packs does not constitute an independent component outside of the video game. The contents of the packs in the „Ultimate Team“ game mode cannot be transferred outside of the game. The packs are also purchased via the player's account within the game. The purpose of purchasing the packs is therefore to put together the desired virtual football team more quickly. The objective benefit is therefore typically to build a stronger team with the digital content. According to the Supreme Court, the fact that packs can also contain average or less valuable players also speaks against an isolated consideration. Even the (undoubtedly existing) aleatory element of the packs does not make the process an independent game of chance that is detached from the video game.

Based on this overall assessment, the Supreme Court did not classify the packs in „Ultimate Team“ as a game of chance within the meaning of Section 1 (1) GSpG. Success in the game mode does not predominantly depend on the content of the packs purchased. Although better players can strengthen the virtual team, several other factors remain decisive for success. These include, in particular, the skills of the human player, such as the chosen tactics and strategy, as well as the skill in controlling the virtual players. This means that even a player with a strong team can lose against a superior opponent. In terms of gambling law, it is therefore a „mixed game“.

With this decision, the Supreme Court has thus clearly stated: The „Ultimate Team“ game mode in its specific form - including the loot boxes it contains - is not a game of chance. This is the first time that the Court has provided fundamental clarity for a case of particular economic relevance. The decision therefore forms an authoritative basis for the categorisation of comparable loot boxes under gambling law.