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A recent Austrian Supreme Court ruling determining that a player had to return their winnings to an online casino without a local licence represents more of a risk to operators than Austrian gamblers, according to a firm that is funding litigation to reclaim gambling losses from offshore companies.
On June 26, the Supreme Court ruled that only part of the player’s more than €7,000 winnings earned between May and July 2020 were obtained illegally and the player, rather than having to return all the winnings, must return €626.60 to reimburse the operator’s legal fees.
The gambling operator sought to reclaim the winnings it had paid to the player on the legal basis that the contract between themselves and the player was null and void based on the legal status of online casino games in Austria.
The player objected to the operator seeking to reclaim the winnings, stating that the operator was aware of the illegality of its offering.
Stefan Bohar, a member of the board of AdvoFin Litigation Funding, said that in the loss-recovery cases his firm is financing against operators, “losses are always calculated as net losses, so the ruling does not matter for the ongoing and future cases, where players claim their losses back at all”.
Bohar added that he could not understand why any unlicensed operator would pursue such a legal case against an Austria player for multiple reasons, including putting off customers from using their platforms due to a fear of being sued should they win.
“This will 100 percent be used against the non-paying providers in Malta. There, they claim having to repay losses to players would be against the public policy of Malta. But on the other hand, they do sue a player in Austria and will try to enforce the claim in Austria … . Well, that doesn't really match at all,” Bohar said.
His litigation firm is therefore interpreting the latest Supreme Court ruling as “more of a risk for the providers than for the players or the endeavor of reclaiming losses”.
Nicholas Aquilina, a partner at Vienna-based law firm Brandl Talos, explained that although industry media has reported on the Supreme Court ruling as a “novelty”, it is instead “merely the logical consequence of established case law in Austria concerning the refund of player losses”.
Since 2019, various online gaming operators have been targeted with player-refund claims in Austria, Aquilina told Vixio GamblingCompliance.
“The legal consequence has always been that reciprocal payments must be reversed and thus, from the very beginning, players were granted their net losses. The Supreme Court now simply confirmed this principle in a case that was dealing with the same issue from the opposite direction,” he said.
Aquilina added that it is clear that the Supreme Court “carefully assessed the impact of its decision and by no means wanted to empower operators”.
“Even though the decision once again shows that a reform of the Austrian gambling market is long overdue and introducing a licensing regime like almost all other EU member states have done by now (amongst other things, to avoid mass litigation against consumers for reclaiming winnings), the practical impact of the decision will be limited,” he said.
