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18 May 2021
In 2020 The Hague District Court ruled in favour of the Gaming Authority in its case against Electronic Arts (EA). The court held that the loot boxes in FIFA 2019 violate the Betting and Gaming Act because they are a standalone game of chance through which players can win prizes.
This ruling effectively meant that EA had to remove the loot boxes from the FIFA Ultimate Team (FUT) mode of its FIFA games or risk incurring severe fines (€250,000 per week, up to a maximum of €5 million). EA therefore requested relief from the Council of State – the Netherlands' highest court in this case. That relief was granted by the Council of State on 5 February 2021.
This article examines the Council of State's ruling and its implications.
EA put forward the following arguments:
The Council of State did not rule on the merits of the case and only weighed the interests of EA with those of the Gaming Authority. On that basis, the Council of State decided to grant relief to EA.
It is not unusual for the Council of State to bypass the merits of a case such as this, where a relatively complex point of law is being contested and the appellant's case is not evidently hopeless. The idea behind this is that it is better to leave a discussion on the merits of a case where it belongs: in the appeal, where it can receive due attention.
The Council of State granted relief based on the following arguments:
The Council of State concluded that, considering these circumstances, it would grant relief pending EA's appeal before the Council of State. The Gaming Authority's order is therefore stayed until a further order.
The relief means that EA is still formally required to remove the loot boxes, but will not be forced to do so by the Gaming Authority pending its appeal before the Council of State. Thus, the loot boxes have not suddenly become legal as a result of this judgment, but EA need not remove them for the time being.
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