The Council of State (the highest Dutch administrative court) recently ruled in favour of Electronic Arts (EA) in its case against the Dutch Gaming Authority (‘Kansspelautoriteit’). The Council of State held – contrary to an earlier ruling by the District Court – that the player packs or ‘loot boxes’ in the FIFA Ultimate Team (FUT) game mode are not considered games of chance.
This ruling means that the Gaming Authority unlawfully imposed a penalty of € 250,000 for each week that EA did not remove the player packs from their game.
The District Court ruled earlier that packs constituted a stand-alone game of chance, because they could be opened separately from the FIFA matches. In its appeal to the Council of State, EA argued that the packs had to be considered as adding an element of chance to a – broader – game of skill (the FUT mode). EA argued that the court should look at how the majority of players play the game. The majority of packs can only be opened through gameplay by winning a FIFA match, i.e. a game of skill. Only a small percentage of those packs is bought with FIFA points, using real money. EA argued that the theoretical possibility that packs are opened and their rewards are sold separately from the FUT mode should be deemed insufficient to classify the packs as a stand-alone game of chance.
The Council of State’s decision
The Council of State reiterated that it first had to consider whether the packs constitute a stand-alone game of chance. If not, the packs only added an element of chance to a game of skill and would therefore not be illegal under Dutch gaming law. The judges considered that the way in which a majority of gamers play the game should be a decisive factor in answering that question.
The Council of State ruled that the player packs do not constitute a game of chance separate from the FUT mode. Even though packs cannot be opened while playing FIFA matches, they can be accessed in the same FUT mode. Moreover, the vast majority of packs are obtained by (and used for) progression and participation in the FIFA matches. Even though the rewards from these packs can be sold on the black market, the market mainly focuses on trading complete accounts and not individual pack content. Partly because of these considerations, the possibility of obtaining packs through other means, i.e. spending real money, does not make these packs a stand-alone game of chance.
What are the implications of the judgement?
Because the loot boxes are not a standalone game of chance, they are not in contravention of the Dutch Gaming Act. The Dutch Gaming Authority was therefore not allowed to order EA to cease offering the loot boxes. The imposed penalty payment was therefore quashed. This also means that – at least under Dutch law – EA does not have to remove the player packs from the game’s FUT mode.