PAID VIDEO GAME LOOT BOXES ARE NOT GAMBLING UNDER DUTCH GAMBLING REGULATION? SHIFTING THE GOALPOST IN ELECTRONIC ARTS V. KANSSPELAUTORITEIT

Abstract

In March 2022, the highest administrative court in the Netherlands, the Administrative Jurisdiction Division of the Council of State, found that loot boxes in the Ultimate Team Mode of the FIFA video games (FUT) published by Electronic Arts (EA) did not contravene Dutch gambling law, contrary to the Netherlands Gambling Authority's (Kansspelautoriteit) previous 2018 interpretation of the law and overruling a previous 2020 judgment that confirmed the Kansspelautoriteit's aforementioned interpretation. The Council of State decided that the player packs (i.e., loot boxes) in the FUT mode cannot be considered a separate game that is capable of being assessed on its own as to whether it constitutes a “game of chance” and therefore potentially contravenes gambling regulation. Instead, the overarching video game containing the loot boxes should be assessed more broadly as to whether that game constitutes a “game of chance” or a “game of skill.” We argue that the Council of State's unique approach of not considering the loot boxes separately as to whether they constitute gambling underplayed the importance of paid loot boxes as a monetization method in contemporary video games. The Council of State unsatisfyingly built its main argument on the supposed “importance” of non-paid loot boxes. Further, the Council of State's overreliance on how the so-called “majority” of players experience the video game importantly failed to account for the experiences of the small minority of high-spending players who are most at risk of potential harms and in need of consumer protection. The Council of State's interpretation of Dutch gambling law should not necessarily be relied on by other countries considering the regulation of loot boxes. Dutch legislators should consider whether this restrictive interpretation, which has made future application of gambling regulation to loot boxes highly unlikely, was intended and may require legislative amendments.1