Gambling vs. Skillgaming, a small demolition


I have just completed an expert opinion on the admissibility of Skillgaming under Section 284 of the German Criminal Code (StGB) and the Gambling State Treaty, so I would like to give a brief outline. The topic of betting and awarding on match results is also becoming an increasingly important economic factor in the field of esports, both for esports teams and for startups that deal with the topic in order to offer portals for the esports tournaments.

I currently look after some providers in this area and the biggest problem is the latent uncertainty in the German legal situation and the case law. Although the 3rd Gambling State Treaty has now been ratified, this only helps to a limited extent when offering services to play, which are in the overall view of the judgments.

Unfortunately, there are currently essentially only judgments on card games (by far there is of course poker in the Texas Hold’em version). Judgments or essays on computer games that are not just digital versions of board or card games are not yet available. So my clients must once again be pioneers in assessing whether a PC, console or mobile game is a gambling game and whether, therefore, restrictions from the Gambling State Treaty apply, whether the provisions of the 33ff GewO . Trade Regulations) apply whether aspects of the protection of minors (such as age restrictions) must be observed at events such as tournaments or streaming events and, of course, how gtC and other contracts are to be designed.

Dealing with authorities?

Although I have been able to help with my experience with computer games and dealing with authorities, it is precisely these contractual arrangements that also show conversations with the authorities of the protection of minors and regulations that esports and/or streaming events, and certainly not the associated contracts, should simply be developed and, above all, used.

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The problems are manifold and also concern, for example, the question whether certain constellations of business models may not be the construct “game” and thus the nomenclature of Section 284 of the StGB and the Gambling State Treaty, but whether it is an award within the meaning of Section 657 of the German Civil Code (BGB). In this case, a user would always have a payment obligation and a user would also be obliged to pay if he loses. This would not be the case in the case of Section 762 of the German Civil Code (BGB). The distinction is quite relevant to the current “dispute” of some courts regarding the obligation to pay payment service providers (see this article and this contribution).

Blind Promise

However, the “binding promise” is a one-sided legal transaction. However, it is also not clear whether there could be two unilateral legal transactions in the context of the adaptation of the terms and conditions of the platform or whether this would be surprising as a GTC regulation! This applies whether an award is also applicable to the provision of a scientific, artistic or sporting performance and although the fact that the person who reacts to the award has to cede something in turn does not comply with the law under Section 661 of the German Civil Code (BGB) is completely foreign.

At the end of the day, it depends on the details of the business models and the concrete design of the PC, consoles, or mobile games and, of course, the monetization model.

By the way: The topic of gambling is not only relevant for operators of platforms for esports tournaments with money wins and/or non-cash prizes, but also for developers of computer games. This starts with the question – I give it to some provocative thesis – whether the concept Free2Play does not violate the UWG (see this article) and concerns whether loot boxes are not subject to gambling law!

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