Supreme Court Shifts the Playing Field: Lootboxes Fall Outside the Austrian Gambling Act

In a landmark decision, Austria’s Supreme Court has held that FIFA’s lootboxes do not constitute games of chance under the Austrian Gaming Act, siding with the defendants and dismissing the player's claim – one of the first Supreme Court rulings in Europe to scrutinise lootbox mechanics through the lens of overall gameplay rather than assessing them in isolation.

The question of how lootboxes are to be classified under Austrian gambling law had previously been answered only by lower civil courts, with divergent outcomes. While some first‑instance decisions considered lootboxes a game of chance, the Higher Regional Court of Vienna dismissed the claim in the second instance in two separate proceedings, each time holding that the relevant mechanics did not constitute a "game" within the meaning of the Austrian Gaming Act – a threshold requirement, given that a game of chance exists only where the outcome depends exclusively or predominantly on chance. The Higher Regional Court of Vienna had admitted the ordinary appeal precisely because no Supreme Court case law existed on the gambling‑law classification of lootboxes in Austria. Against this procedural backdrop, and in light of these aligned second‑instance rulings, the Supreme Court was called upon to address the issue for the first time.

In its decision 6 Ob 228/24h, the Supreme Court confirmed the reasoning of the Higher Regional Court of Vienna and upheld the dismissal of the plaintiff’s claim. At the core of the case was the purchase of FIFA Points with real money and their use to open "packs" in FIFA Ultimate Team – raising the question of whether these mechanics fall within the statutory definition of gambling.

The Supreme Court first clarified that lootboxes in Ultimate Team must not be assessed in isolation, but only within the overall context of the game. Packs are neither functionally nor technically independent of the game mode; rather, they serve solely to obtain digital content used for continued gameplay and have no autonomous purpose outside the system. As a result, they cannot be regarded as independent games of chance.

Although the contents of packs are random, the Supreme Court emphasised that success in Ultimate Team does not predominantly depend on chance. Human skill – tactical decisions, game understanding, team composition, the use of mechanics, and player dexterity – plays a decisive role. High‑rated footballers drawn from packs do not guarantee victory, while experienced players can remain competitive with average‑rated teams. Ultimate Team therefore constitutes a mixed game in which skill predominates and a rational expectation of achieving success exists.

The Supreme Court also considered the economic dimension. Under the applicable terms of use, FIFA Points and the digital content obtained from packs are intended exclusively for in‑game use and have no monetary value outside the game. Conversion into real money is expressly prohibited. Unofficial secondary markets, where players may trade accounts or items, were deemed irrelevant because such activities occur outside the contractually defined game environment and cannot influence the gambling‑law assessment.

The upstream purchase of FIFA Points was characterised as a purely technical preparatory transaction. Since the underlying mechanics are not gambling, the purchase of FIFA Points cannot be considered part of prohibited gambling either. Consequently, there is no violation of the Austrian gambling monopoly and no basis for claims of reimbursement or damages. In light of its other findings, the Supreme Court considered it unnecessary to assess whether the purchase of loot boxes meets the further requirements of ‘draws’ under the Austrian Gaming Act or whether an exception for gambling (e.g., for leisure purposes) applies and therefore did not rule on these two legal aspects.

Crucially, the Supreme Court did not hold that lootboxes can never constitute games of chance. Instead, it confirmed that any gambling‑law assessment must be based on a case‑by‑case, overall evaluation of the specific game design. The decisive question is whether the lootbox mechanics form part of a predominantly skill‑based game – as in FIFA's Ultimate Team mode – or constitute an independent game primarily governed by chance. The decision therefore applies strictly to lootboxes in the specific form used in FIFA Ultimate Team, and players cannot reclaim their expenditure on such packs.

From a broader perspective, this ruling – now reinforced by a second, aligned decision of the Higher Regional Court of Vienna – signals a favorable trend for game developers and publishers. While the judgments remain tied closely to the facts of the case, they raise the evidentiary bar for plaintiffs seeking to challenge lootbox mechanics under Austrian gambling law and strengthen the legal predictability for providers when designing comparable in‑game monetisation systems.