The Austrian Supreme Court’s recent decision on FIFA lootboxes is, in many ways, comfortingly familiar. Faced with the increasingly ritualised question of whether opening digital packs amounts to gambling, the Court did what gambling law has always done best: It read the rules, looked at the structure of the activity, and politely ignored everything happening just outside the frame. (Austrians are ever polite!) FIFA Ultimate Team, it concluded, is predominantly a game of skill. Packs are not stand-alone games. Digital items have no official cash value. And whatever players might be doing on third-party websites is, legally speaking, someone else’s business entirely.
On those terms, the result was predictable. The claim failed, refunds were denied, and order was restored. Yet the most interesting part of the decision lies not in what it decided, but in what it did not need to confront. Beneath the Court’s tidy reasoning sits a question that modern monetisation systems keep asking and gambling law keeps declining to answer: At what point does an economically significant cash-out activity become part of the system, even if it formally happens somewhere else?
This is not a new puzzle. Japan solved it decades ago with pachinko, a game that manages to be almost entirely chance-based, wildly popular, and yet officially, is not gambling. The trick, as every visitor quickly learns, is separation. Players buy balls, play machines, and exchange any winnings for prizes.
Those prizes are not money and usually have no utility. Money, strictly speaking, never changes hands in the parlour. Instead, players take certain designated items for a short walk to a “completely unrelated” exchange shop nearby, where they are converted into cash. Everyone understands what is happening. The law understands it too. It simply insists on treating each step as distinct. And the system rolls on.
What makes pachinko particularly interesting is not just the separation, but the circularity hiding behind it. The prizes are not souvenirs. They are placeholders. The prize buyer’s business model assumes resale back into the pachinko supply chain. At some point, value flows back to the operator’s ecosystem. Money goes out, money comes back, and the loop closes. Gambling law has always been uneasiest around closed loops, places where money circulates continuously through the same structure, and pachinko fits that pattern almost perfectly, albeit sideways and with a knowing smile.
FIFA lootboxes look, at first glance, remarkably similar. Players buy FIFA Points, use them to open packs, and receive randomised digital items. The terms and conditions are explicit and emphatic: Those items have no cash value and must not be exchanged for money. Courts, including the Austrian Supreme Court, have been content to take that at face value. If resale happens, it happens elsewhere. If cash appears, it appears off-stage. From a legal perspective, the system ends when the pack is opened.
Yet everyone knows that secondary markets exist. Accounts are traded. Coins are sold. Items change hands. The important point, legally, is that none of this is supposed to happen and therefore none of it counts. Gambling law, at least for now, focuses on what the rules say, not on how people actually behave.
There is, however, a key difference between FIFA and pachinko and it explains much of the judicial calm. FIFA Ultimate Team would survive perfectly well if every secondary market vanished tomorrow. Players might complain loudly. Influencers would pivot. But the game would continue. Items have in-game utility. Competition remains. From the publisher’s perspective, resale is leakage, rather than circulation. Value exits the system and does not return. EA, creator and operator of the lootboxes, does not buy items back (not that we know of, but it would make an interesting business model that would pump liquidity into the resale market). The loop remains open.
That distinction, circular versus open, does an enormous amount of quiet work in gambling law. Closed loops make regulators nervous. Open systems feel safer, even when chance and money are doing most of the motivational heavy lifting.
This is where a third model enters the picture and complicates matters: the booming world of trading-card-box reveals and “breaks”, particularly those run by influencers on streaming platforms. In some versions, sealed boxes of trading cards are auctioned to the highest bidder, while still unopened. The influencer hypes the box enthusiastically, referencing rare pulls, past successes, and eye-watering secondary-market prices. The box is sold unseen. Only after the auction closes is it opened on stream, to collective suspense and varying degrees of delight or despair.
Legally, this looks clean enough. A product is sold. No guarantees are made. The influencer does not pay out cash. Any resale happens elsewhere on an unrelated (ahem!) marketplace. Once again, separation does the work.
Economically, however, the resemblance to pachinko is much stronger. The model makes little sense without a liquid secondary market waiting just offstage. Buyers bid because they expect to sell. Influencers price because they know what cards are worth. Take away resale and the entire performance collapses. In that sense, break boxes are much closer to pachinko than to FIFA. Resale is not an incidental side effect. It is the reason anyone is there.
Crucially, however, the circle still does not quite close. The cards are not sold back to the influencer, the platform, or the publisher. Value moves sideways into the market or stays with collectors. Money exits, but it does not return. Even here, the system remains open rather than circular. That missing buy-back step is not a trivial detail. It is the strongest remaining firewall between these models and being classified as traditional gambling.
Across all of these examples, gambling law has taken a remarkably consistent approach. It regulates structure rather than motivation. It asks where value is formally realised, not why players are willing to pay. As long as cash-out is kept outside the four corners of the system, the system remains safe. This is a durable and, in many ways, pragmatic strategy. It also allows operators to adopt a position of polite distance: Cash-out is prohibited, disapproved of, and nonetheless faintly useful.
Publishers know secondary markets exist. Influencers know where prices come from. Regulators know everyone knows. The equilibrium holds because no one is required to say the quiet part out loud.
So far, courts have shown little appetite for disturbing this balance. To do so would require uncomfortable inquiries into economic dependence, selective enforcement, and the role of external liquidity in driving demand. It would also raise the awkward possibility that some systems look less like games once the surrounding markets are taken seriously.
Which brings us back, inevitably, to the unresolved question the Austrian Supreme Court did not need to answer: At what point does an economically significant cash-out activity become part of the system, even if it formally sits outside the terms and conditions? Or, put slightly differently, when does an open system start to look suspiciously like a closed one?
For now, the answer appears to be “not yet”. Secondary markets remain legally invisible, however visible they may be in practice. Pachinko shows how long the law can live with that fiction. Lootboxes and break boxes show how easily the same logic can be repackaged for a digital age. Whether separation without circularity will always be enough is a question gambling law has not yet been forced to answer, but it is getting harder to pretend it will never have to.
