Lawsuits targeting unlicensed online operators in Germany and Austria have claimed back millions of euros in player loses, as courts void the wagers made with companies offering services in contradiction to national laws. Until now, a defence claimed by operators is that players were aware they’ve been using the services of illegal providers, therefore invalidating the claim that they’ve been ‘duped’ by the providers. However, a new ruling in Austria slams the door on this argument.


It is estimated that each year, Austrian players gamble around €150m with unlicensed operators in their home country. Te bets are illegal as the sole rights to offer online gambling for the domestic market lies with Casinos Austria, the gambling monopoly, which operates online via its win2day brand.


Te monopoly hasn’t prevented operators based in offshore locations from offering games to customers in Austria, attracting players with substantial sign-up bonuses, above and beyond the offers from win2day. It’s been a successful practice for many years, but it’s hit a bump in the road as law firms in Austria have seized upon the fact that such activity is illegal, and that players are entitled to reclaim their staked losses from these sites.


Austrian litigation experts, AdvoFin, has now sued around 70 illegal gambling companies on behalf of 3,500 players and successfully recovered more than €50m in lost stakes through court actions. Mirorring the diesel-gate and PPI claims of the past, the no-win, no-fee class action suits, when successful, nets Advofin 37 per cent of the proceeds.


NEW SUPREME COURT RULING


According to the Supreme Court ruling, lost stakes are ‘reclaimable’ because the contract concluded between the player and the non- licensed provider is ‘unauthorised and ineffective.’ Tus far, unlicensed gambling companies fighting the lawsuits have sought two lines of defence, the first that the Austrian system of gambling licensing contradicts EU law, and the second, that the player was aware that the provider did not have an Austrian gambling licence. On this basis, the unlicensed operators conclude that the lost stakes are non- refundable.


A third, more supurious claim, is that the provider claims that the player have benefitted from the ‘entertainment value’ provided by the gambling portal, which should be offset against the amount demanded by the lawsuit. Tese counterclaims charge an entertainment fee for the days played using the sites, often amounting to exactly the costs of the plaintiffs claim, with operators charging €200 per day for their ‘entertainment services.’


Austria’s Supreme Court of Justice (OHG) sees


According to the Supreme Court ruling, lost stakes are ‘reclaimable’ because the


contract concluded between the player and the non- licensed provider is ‘unauthorised and ineffective.’ Thus far, unlicensed gambling companies fighting the


lawsuits have sought two lines of defence, the first that the


Austrian system of gambling licensing contradicts EU law, and the second, that the player was aware that the provider did not have an Austrian gambling licence. On this basis, the unlicensed operators conclude that the lost stakes are non-refundable.


tings differently. As part of a newly announced judgment, the OHG underlines the fact that Austrian gambling monopoly complies with EU law and goes much further. “Te conduct of a sweepstakes without a domestic license constitutes prohibited gambling. Te purpose of the ban is also to protect the individual players. Financial disadvantages due to banned games should be prevented. Te OGH cannot see an advantage for the player in the form of entertainment value.”


“What’s new about this judgement is that even if a player knows that the online provider does not have an Austrian license, they can still claim back the lost stakes,” explains AdvoFin lawyer, Sven Torstensen. “According to the supreme court, refusing the claim for reimbursement would contradict the purpose of the gambling bans. Te providers must therefore pay in any case.”


According to the OGH, players must be protected from illegal providers. "Most players are addicted to gambling and the illegal providers have no appropriate gambling addiction measures,” states Torstensen. “I want to help people with these lawsuits break the cycle of gambling addiction. Tey should use the chance to get back on their feet.” But players could also see this OGH ruling as a licence to continue playing, because can continuously be reclaimed, a point not lost on Torstensen: “I do not represent any players who continue to play. It goes against my ethos.”


WIRE / PULSE / INSIGHT / REPORTS P113


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