(Note: All quotations listed here are in the original German, but have also been translated into English for the English-speaking reader.)
This legal article discusses three significant decisions that impact gambling providers and their representatives in the context of player lawsuits.
These lawsuits involve players from Germany suing an online casino for the reimbursement of their past gambling expenditures. The cases typically revolve around German players participating in online gambling activities offered by foreign operators, mostly based in Malta. While these activities may be legal under the laws of the operators’ home countries, they are considered prohibited under German law due to the lack of permission to operate within Germany.
As a result, the contracts between players and gambling providers are deemed void ab initio under German civil law principles, rendering them invalid for the purpose of depositing funds and withdrawing winnings. In this case, the payments made by players for gambling stakes can be regarded as unjust enrichment for the gambling providers. The invalidity of the contract means that the gambling provider received payments without a legal basis, triggering the application of the German law on unjust enrichment, §§ 812ff. German Civil Code (“Bürgerliches Gesetzbuch” – BGB).
The law of unjust enrichment grants a claim to the party who made a payment for which there was no objective legal obligation, allowing them to seek reimbursement from the recipient.
However, according to § 817 sentence 2 BGB, this does not apply if the paying party knew or should have known that they were not obligated to make the payment. If the paying party was aware or willfully closed their eyes to the lack of legal basis for the payment, they may not be entitled to demand its return as an unjustified payment. Additionally, the fact that the player may have violated § 285 German Crime Code (“Strafgesetzbuch” – StGB) by participating in unauthorized gambling could also prevent them from claiming reimbursement against the gambling provider under § 817 sentence 2 BGB.
The decision of the Regional Court of Gießen on January 21, 2021 (Case no: 2 O 227/20), triggered a wave of lawsuits. The court ruled that § 817 sentence 2 BGB was not applicable as it would contradict the purpose of prohibiting unauthorized gambling and ultimately punish the player who was intended to be protected. Therefore, it would not matter whether the conditions of § 817 sentence 2 BGB were met. Applying § 817 sentence 2 BGB would run counter to the purpose of the prohibition of unauthorized gambling.
In the german article titled “Die Spielerklagen” published in the same year, the author pointed out that the legal opinion of the Regional Court of Gießen and other courts that followed suit was flawed. The author referred to a similar legal situation concerning cases of undeclared work and argued for the application of established legal principles to the player lawsuits, specifically citing decisions of the Federal Court of Justice (“Bundesgerichtshof” – BGH) in those cases. In undeclared work cases, there was often a dispute regarding whether the principal could assert warranty rights if the service rendered was defective, or whether the contractor (craftsman) was entitled to remuneration when the collaboration was conducted without an invoice and thus without the payment of 19% value-added tax. Here, too, the contract was deemed void under § 134 BGB due to a violation of § 1 (2) no. 2 Act on combating undeclared work (“Schwarzarbeitsbekämpfungsgesetz” – SchwarzArbG).
This situation triggered the application of the law on unjust enrichment and, therefore, the “legal duel” between § 812 (1) sentence 1 BGB and § 817 sentence 2 BGB. Until 2014, the BGH had maintained the position that § 817 sentence 2 BGB should not be applied to avoid unjust results; just like most of the Regional Courts in Germany regarding Player Recovery Claims.
This was heavily criticized by legal literature and was eventually taken into account by the BGH.
Consequently, starting in 2014, the BGH changed its stance and concluded that the purpose of the Act on combating undeclared work (SchwarzArbG) could only be achieved if both contracting parties – the principal and the contractor – forfeited their claims against each other by entering into an “undocumented agreement.” The BGH thereby discontinued its previous approach of not applying § 817 sentence 2 BGB.
The author repeatedly emphasized that the German Regional Courts were committing the same mistake as the BGH did until 2014. In a legal article titled “Player Lawsuits in the Context of the BGH’s Undeclared Work Jurisprudence” (Sarafi, ZfWG 2022, 149-153), the author argued:
“What stands out is that the courts only superficially consider the dogmatics of § 817 sentence 2 BGB in their examination. The principle of § 817 sentence 2 BGB, which states that someone who knowingly violates the legal order may not later rely on the legal order to correct the adverse consequences of the violation, may only be exempted from application in exceptional cases when the conditions for a teleological reduction are met. This is mostly not discussed. This oversight also leads to a failure in recognizing the comparability of the cases judged by the BGH in the context of undeclared work with the player lawsuits. While the BGH decisions regarding the non-application of § 817 sentence 2 BGB cannot be easily generalized since they are based on individual cases, the BGH’s jurisprudence on undeclared work cases provides important criteria for assessing the necessity of a teleological reduction of § 817 sentence 2 BGB, which must also be considered in the assessment of player lawsuits. […]
However, the general preventive effect of § 4 para. 1 sentence 2, para. 4 GlüStV 2012 must be taken into account in the teleological reduction of § 817 sentence 2 BGB, following the principles clearly established by the BGH in the context of undeclared work jurisprudence: The general preventive effects must take precedence over general considerations of fairness. The general preventive effect of § 4 para. 1 sentence 2, para. 4 GlüStV 2012 aims to protect public interests, similar to the Undeclared Work Act, namely to achieve the protection of law-abiding providers and players.” (Author’s emphasis)”
Despite these articles, and even after the controversial “scandal judgment” of the Regional Court of Gießen on January 21, 2021, several other judgments have been rendered by various regional courts, which also aligned with the Gießen Regional Court’s ruling and declared § 817 sentence 2 BGB as inapplicable.
After nearly two years since the disputed “scandal judgment” of the Regional Court of Gießen on January 21, 2021, two higher regional courts recently adopted the author’s legal opinion in their judgments and also drew an analogy to the legal considerations from the BGH’s jurisprudential development in undeclared work cases at the beginning of this year.
The Higher Regional Court of Hamm, in its judgment of March 21, 2023 (Case no: 21 U 116/21), even referred to the authorship of this idea:
“In this context, parallels between the systematics and ratio of § 4 IV GlüStV on the one hand, and § 1 II No. 2 SchwArbG on the other hand, must be taken into account, as the prohibition stipulated in the Schwarzarbeitsbekämpfungsgesetz primarily targets the entrepreneur. […] In the opinion of the Senate, these considerations should also be applied to the scenario of participation in prohibited gambling since the achievement of the legislative purpose, which also underlies the criminal offense of § 285 StGB, can be most effectively achieved if claims for restitution can be effectively excluded on both sides (Sarafi, ZfWG 2022, 149, 152).”
This development clearly contradicted the nationwide case law of the regional courts, which rejected the application of § 817 sentence 2 BGB.
Shortly thereafter, the Regional Court of Gießen revised its own legal opinion regarding the question of the invalidity of the gaming contract.
In a judgment dated April 4, 2023 (Case no: 5 O 189/21), the Regional Court of Gießen ruled that despite a violation of the licensing requirement, the gaming contract could not be considered void. In such a case, the question of the application of § 817 sentence 2 BGB would be irrelevant. If there is no invalidity, the scope of the law of unjust enrichment would be affected, and neither § 812 BGB nor § 817 BGB would be applicable. A question regarding the application of § 817 sentence 2 BGB would then no longer be relevant.
Considering this development, an updated legal analysis of the players’ lawsuits seems appropriate.
1. Nullity of the Gaming Contract?
All lawyers representing the plaintiff players unanimously argue that a violation of § 4 (4) GlüStV a.F. (German Interstate Treaty on Gambling, old version) leads to the nullity of the gaming contract under § 134 BGB.1
Upon closer examination, it seems more appropriate to discuss whether a violation of § 4 (1) GlüStV (a.F.) would lead to the nullity of the gaming contract under § 134 BGB. Regardless of a possible total internet ban under § 4 (4) GlüStV 2012., a violation of § 4 (1) GlüStV would occur if there was no corresponding permission for organizing and facilitating gambling activities.
The general requirement of permission, which generally necessitates a license, is set out in § 4 (1) GlüStV 2012 and § 4 (1) GlüStV 2021. § 4 (4) GlüStV 2012 merely clarifies that a license cannot be granted for internet gambling activities under § 4 (1) GlüStV 2012. While this may not have any impact on the outcome, it does indicate that the grounds for lawsuits and court rulings are not well-founded in terms of legal doctrine.
The central question raised by the player lawsuits is whether a violation of the licensing requirement automatically leads to the nullity of the gaming contract.
So far, no regional court has extensively examined the general requirements of § 134 BGB, except for the aforementioned judgment of the Regional Court of Gießen in its latest decision on April 4, 2023. Other regional courts have merely superficially and conclusively affirmed the fulfillment of the requirements.
It is important to emphasize that a violation of a prohibition law does not automatically result in the nullity of the underlying contract. This is only the case when the prohibition law provides for a mutual ban or explicitly refers to the legal consequence of nullity.
Regarding § 4 (1) GlüStV, there is a unilateral prohibition on organizing or facilitating gambling activities for the operator or intermediary, without the law explicitly ordering nullity. Therefore, the question of the nullity of the legal transaction must be answered based on the purpose of the prohibition law.
Thus, it is of great importance that these questionable laws be interpreted according to the rules of legal methodology. The interpretation of laws usually takes into account the wording, systematic context, historical interpretation, as well as the purpose and objective of the law. Through careful and comprehensive interpretation, the legal consequences of violating the aforementioned laws can be better understood and evaluated. This enables a well-founded legal analysis and assessment of the legal situation regarding the player lawsuits, which has been neglected in all (!) judgments.
New Decision of the Regional Court of Gießen on April 4, 2023 (Case No.: 5 O 189/21).
The judgment of the Regional Court of Gießen on April 4, 2023 (Case No.: 5 O 189/21) appears to be the first one that extensively addresses the question of nullity. In its decision, the court concludes that a violation of § 4 (4) GlüStV 2012 and § 4 (1) sentence 2, 2nd alternative GlüStV 2012 would not lead to the nullity of the underlying gaming contract. Although § 4 (1) sentence 2, 2nd alternative GlüStV 2012concerns payment providers who are not allowed to participate in payments for unauthorized gambling, the legal consequence for § 4 (1) sentence 2, 1st alternative GlüStV 2012is the same as for § 4 (1) sentence 2, 2nd alternative GlüStV – both under the old and the new State Treaty on Gambling.
In its judgment, the Regional Court of Gießen initially refers to a decision of the Federal Court of Justice (BGH) on September 13, 2022, to outline the general requirements for the legal consequence of nullity under § 134 BGB:
“A violation of a prohibition law generally leads to the nullity of the legal transaction only when the prohibition applies to both parties to the contract (BGH, judgment of September 13, 2022, case no. XI ZR 515/21, para. 11). Only in exceptional cases can nullity also result from a unilateral violation. The prerequisite for this is that the purpose of the prohibition law cannot be achieved otherwise and that the contractual arrangement cannot be tolerated. Such an exceptional case exists, for example, when the intended protection of the contractual partner requires the nullity of the legal transaction (BGH, ibid., para. 11, with further references). However, if it is sufficient to enforce the statutory prohibition through administrative or criminal measures, the civil law sanction of nullity has no place alongside it.”
According to the Regional Court of Gießen, these conditions are not met, and therefore, nullity under § 134 BGB cannot be assumed:
“The court cannot see why the purpose of § 4 (4) GlüStV 2011 cannot be achieved differently and why nullity of the gaming contract would be necessary to protect the contractual partner (the player). It is already uncertain whether nullity of the gaming contract would achieve the purpose of § 4 (4) GlüStV. This would require that the civil law sanction alone, or at least better than administrative or criminal measures, would be suitable for enforcing the prohibition in § 4 (4) GlüStV. However, it is highly doubtful whether providers of unauthorized online gambling would refrain from organizing or facilitating such activities solely because the player would have a (judicially enforceable) claim for reimbursement of their losses. Furthermore, nullity of the gaming contract is not necessary to protect the contractual partner (the player). The purpose of the GlüStV 2011 is not to protect players in general from the risk of losing. Otherwise, no form of gambling would be allowed. As in the case decided by the BGH, the player’s interests do not require protection from the economic consequences of gambling through nullity of the contract entered into by them (cf. BGH, ibid., para. 16). The potential financial loss for the player does not arise from the prohibition of unauthorized gambling but rather from the inherent risk of any gambling activity that the outcome, whether winnings or losses, is uncertain and purely random (BGH, ibid., para. 16). The existing decisions of the higher regional courts have, in the opinion of the court, not sufficiently addressed this issue.”
The Regional Court of Gießen discusses the decisions of various Higher Regional Courts that considered the nullity of the contract to be established:
“The decisions of the Higher Regional Court of Frankfurt (case nos. 23 U 55/21 and 19 U2 181/21) were rendered (much) before the publication of the BGH decision. Out of the decisions submitted by the plaintiff and the published decisions, three of them deal with the BGH decision. These are the ruling of the Higher Regional Court of Düsseldorf of January 23, 2023 (case no. I-10 U 91/22, exhibit K76), the ruling of the Higher Regional Court of Karlsruhe of February 7, 2023 (case no. 13 O236/22, exhibit K78), and the judgment of the Higher Regional Court of Braunschweig of February 23, 2023 (case no. 9 U3/22). The Higher Regional Court of Düsseldorf (exhibit K76) assumes that the BGH case law (in the ruling of September 13, 2022, case no. XI ZR 515/21) cannot “necessarily” be applied to the relationship between the player and the gambling provider. This is due to the different interests involved. For the payment service provider, the illegality of their actions is “not necessarily” recognizable when executing the payment, whereas it is for the gambling provider. However, according to the court, this is not a decisive criterion for the question of whether the player should be protected from the consequences of nullity of the legal transaction or whether the purpose of the protective law can be achieved otherwise. The Higher Regional Court of Düsseldorf focuses on the interests of the prohibition addressee in its balancing, which is not comprehensible to the court. The Higher Regional Court of Karlsruhe (exhibit K78) merely states that the contractual arrangement should not be tolerated in view of the purpose of the State Treaty on Gambling. The court does not explain why and with regard to which purpose this should be the case. Furthermore, according to the criteria set out by the BGH and reproduced above, it is not decisive that the sole purpose of the gaming contract concluded between the parties is to enable the prohibited action under § 4 (4) GlüStV 2011. What matters is solely whether the purposes of the GlüStV 2011 can be achieved otherwise than through the nullity of the civil law gaming contract. The Higher Regional Court of Braunschweig, in its judgment (dated February 23, 2023, case no. 9 U 3/22, para. 86ff), assumes that it would be incompatible with the sense and purpose of § 4 (4) GlüStV 2011 to tolerate and preserve the legal regulation established by the legal transaction (the civil law gaming contract). The crucial point is that the prohibition law is not only directed against the conclusion of the legal transaction but also against its private law effectiveness and thus, ultimately, against its economic success (cf. Higher Regional Court of Braunschweig, ibid., para. 87). In the court’s opinion, this is already incorrect. The GlüStV 2011 does allow for the economic success of the legal transaction (gaming contract) in certain cases (e.g., for lotteries and sports betting). Moreover, as correctly stated by the BGH, the player’s loss depends not on the prohibition of the gaming contract but on the inherent risk of gambling (as stated above). The Higher Regional Court of Braunschweig further states that § 4 (4) GlüStV 2011 is intended to protect the player from manipulation, subsequent criminality, and health hazards. However, it is not apparent why it should be necessary for the player to be able to engage in unauthorized gambling without the inherent (loss) risk in order to protect them from manipulation, subsequent criminality, and health hazards. On the contrary, the court assumes that, as is also evident from § 1 sentence 2 GlüStV 2011, only administrative and criminal measures are suitable and sufficient for managing the specific addiction, fraud, manipulation, and crime risks associated with gambling. In this respect, the BGH also relies on the fact that § 4 (1) sentence 2 case 2 GlüStV 2011 is accompanied by § 9 (1) sentence 3 no. 4 GlüStV 2011, a corresponding authorization provision that enables the payment participants to be held liable as responsible disturbers. As the defendants correctly state, this also applies to § 4 (4) GlüStV with § 9 (1) sentence 3 no. 3 GlüStV.”
The assumption of the Düsseldorf Higher Regional Court that the case law of the Federal Court of Justice (judgment of September 13, 2022, case number XI ZR 515/21) is not "binding" and cannot be directly applied to the relationship between the player and the gambling provider because the unlawfulness of the conduct may not be "clearly" discernible for the payment service provider, but is for the gambling provider, can be regarded as correct.
A payment service provider cannot be expected to proactively investigate whether its payments are used for legal or illegal gambling. Such an obligation would be unrealistic and impracticable. It can be assumed that the payment service provider's knowledge or ability to detect the illegality of payments is limited (the author plans to publish an article shortly that will address the issue of payment blocking by the State Gambling Treaty and thus also the obligations of payment service providers in more detail).
However, the main criticism of the Giessen Regional Court, that players are often patronized and are only granted the benefits of gambling, such as the chances of winning, is quite justified. The court also criticizes, albeit implicitly, that the courts often use the argument of player and consumer protection as the decisive factor without further examination in order to consistently choose the legal consequences that are more favorable to the players, up to and including the assumption that the gaming contract is null and void. It is important that the courts conduct a comprehensive review and consider all relevant aspects, including the rights and obligations of the players. A one-sided approach that focuses exclusively on player and consumer protection may result in unequal treatment and put other parties at a disadvantage. Balanced consideration of the interests of all parties is critical to reaching fair and appropriate judgments.
It is important that all relevant aspects are carefully and fairly considered in litigation and adjudication.
A factual and balanced evaluation of legal issues is critical to reaching fair and appropriate judgments. It is important to avoid taking a biased stance against gambling operators or unduly favoring gamblers. Instead, the goal should be to consider the rights and obligations of all parties in accordance with applicable laws and legal principles. This is the only way to achieve a fair and balanced solution.
2. The question of the applicability of § 817 sentence 2 BGB
If the invalidity of the gaming contract is affirmed, the scope of unjust enrichment law would be opened. The player would initially have a claim for repayment under § 812 para. 1 sentence 1 of the German Civil Code (BGB). However, § 817 sentence 2 of the BGB could contradict this, as the player himself violated a statutory prohibition by participating in gambling and was aware that he was not obliged to make the payment.
In this regard, the Regional Court of Gießen, not in its judgment of April 4, 2023 (Ref.: 5 O 189/21), but in its judgment of January 21, 2021 (Ref.: 4 O 84/20), triggered the wave of lawsuits by rejecting the application of § 817 sentence 2 of the BGB with the following reasoning:
"An exclusion of recovery [under § 817 sentence 2 of the BGB] would, at least in these cases, not be compatible with the purpose of unjust enrichment law if the illegality of the transaction is based on provisions that are specifically intended to protect the party making the payment.“
As mentioned above, the author pointed out the legal untenability of these decisions early on.
Shortly after the publication of the full text of the judgment of the Regional Court of Gießen dated January 21, 2021, the author published an article on ISA LAW titled "The Player Lawsuits" and drew attention to the problem:
"For example: If the Regional Court of Gießen had properly examined the factual requirements of § 817 sentence 2 of the BGB, it would have had to determine initially that the player 'likewise commits such a violation' - while the gambling provider violates § 284 para. 1 of the Interstate Treaty on Gambling (GlüStV), the player violates § 285 of the German Criminal Code (StGB). It would then have had to provide reasons why the player, who behaves just as wrongfully as the provider, should nevertheless be privileged by not applying § 817 sentence 2 of the BGB. Although the fulfillment of criminal offenses is not usually considered in the context of § 817 sentence 2 of the BGB, it calls into question whether the player, who commits a crime himself, is deserving of such a high degree of protection that he should be allowed to engage in risk-free gambling. Furthermore, the Regional Court of Gießen assumes, without providing further justification, that §§ 1 sentence 1, 4 para. 4 of the GlüStV serve the protection of individual rights. Considering that even in cases involving the Illegal Employment Act, individual legal protection is denied, and the protective purpose of safeguarding public interests takes precedence (Federal Court of Justice, judgment of April 10, 2014 - VII ZR 241/13), further justification would have been necessary here, especially since this is the crucial point that, from the court's perspective, argues against the application of § 817 sentence 2 of the BGB (refusing the character of individual legal protection, Regional Court of Munich, judgment of August 19, 2021 - 9 O 5322/20)."
"The fact that there is no claim for repayment against online gambling providers also becomes apparent when comparing it with other cases, such as the so-called 'illegal employment' cases. For example, according to consistent case law, even illegal workers are not entitled to remuneration due to the violation of § 817 sentence 2 of the BGB, whereby a teleological reduction of § 817 sentence 2 of the BGB is rightly rejected. A claim for remuneration under a contract for work and services, § 631 para. 1 of the BGB, is contrary to the fact that the contract violates § 8 para. 2 No. 1, No. 2 of the Illegal Employment Act (SchwArbG) on both sides and is therefore void under § 134 of the BGB. Furthermore, a claim based on the principles of management without order does not exist because the expenses incurred in connection with the execution of the transaction, which violated the prohibition under § 1 para. 2 No. 2 of the Illegal Employment Act (SchwarzArbG), cannot be considered necessary. Finally, there is also no claim for unjust enrichment compensation: While the conditions for a claim for unjust enrichment under §§ 812 para. 1 sentence 1 alternative 1, 818 para. 2 of the BGB (condictio indebiti) are fulfilled, as the work was performed in relation to an invalid contract and was therefore unjustified, and the work cannot be returned, the claim for unjust enrichment is excluded under § 817 sentence 2 of the BGB. According to § 817 sentence 2 of the BGB, the claim for recovery is excluded if the person making the payment is guilty of a violation of the law. Although the work performed in accordance with the agreement is value-neutral, if a deliberate violation of § 1 para. 2 of the Illegal Employment Act is agreed upon at the time of contracting, the provision of the service constitutes a violation of the law (Federal Court of Justice, judgment of April 10, 2014 - VII ZR 241/13).“
According to the author's opinion, all regional courts make the same mistake as the Federal Court of Justice did until 2014, before it reversed its position and no longer teleologically reduced § 817 sentence 2 of the BGB.
3. Reversal in Jurisprudence: Application of § 817 Sentence 2 of the German Civil Code (BGB) is Appropriate!
This legal opinion of the author has now been confirmed by two higher regional courts, which could signify a reversal in player lawsuits. These judgments contradict the practice of not applying § 817 Sentence 2 of the BGB.
a) Higher Regional Court (OLG) Braunschweig, Judgment of February 23, 2023 (Case No. 9 U 3/22)
In its judgment, the OLG Braunschweig stated:
“This is also in line with the changed jurisprudence of the Federal Court of Justice (BGH) in ‘undeclared work’ cases (BGH NJW 2014, 1805). The Federal Court of Justice also assumes that maintaining the unlawfully created situation does not contradict the regulatory objectives of the Act Regulating the Illegal Employment of Foreign Nationals (BGH NJW 2014, 1805, 1806, para. 22). The exclusion of an enrichment claim – when the objective and subjective (cf. BGH, ibid., para. 26: ‘knowingly’) requirements of § 817 Sentence 2 of the BGB are met – with its deterrent effect is, on the contrary, a suitable means to promote the legislative objective expressed in the legislative justification of the law using civil law means (BGH NJW 2014, 1805, 1807 [BGH April 10, 2014 – VII ZR 241/13], para. 29). However, this does not change the fact that the enrichment debtor bears the burden of proof for the objective and subjective requirements of § 817 Sentence 2 of the BGB concerning the person making the payment (cf. OLG Stuttgart, judgment of February 22, 2022 – 10 U 120/21 = BeckRS 2022, 7940, para. 32 with further references; Sprau, in: Grüneberg, BGB, 82nd edition, § 817, para. 24).”
Although the OLG Braunschweig granted the player’s claim, it was not because § 817 Sentence 2 of the BGB was deemed inapplicable. Rather, the court held that the defendant gambling company had failed to prove that the player subjectively knew or willfully ignored the prohibition or immorality of their actions.
b) Higher Regional Court (OLG) Hamm, Judgment of March 21, 2023 (Case No. 21 U 116/21)
The Higher Regional Court (OLG) Hamm has also addressed the legal arguments put forward by the author and made a decisive statement. It emphasized that the considerations regarding jurisprudence on undeclared work are transferable to the scenario of participating in a prohibited gambling activity. The OLG Hamm highlighted that the realization of the legislative purpose, particularly the protection of players and the combat against illegal gambling, can be best achieved when both parties are effectively excluded from making reimbursement claims.
The OLG Hamm stated in its judgment of March 21, 2023:
“In this context, parallels between the systematics and rationale of § 4(4) of the State Treaty on Gambling (GlüStV) on the one hand and § 1(2) No. 2 of the Act Regulating the Illegal Employment of Foreign Nationals (SchwArbG) on the other hand must be considered, as the prohibition stipulated in the Act Regulating the Illegal Employment of Foreign Nationals primarily targets the employer. […] In the opinion of the court, these considerations can be applied to the scenario of participating in a prohibited gambling activity, as the realization of the legislative purpose, which is also the basis for the criminal offense of § 285 of the German Criminal Code (“Strafgesetzbuch” – StGB), can be most effectively achieved when reimbursement claims are effectively excluded on both sides (Sarafi, ZfWG 2022, 149, 152).”
The OLG Hamm also granted the player’s claim, which was also due to the defendant gambling company’s failure to prove that the player subjectively knew or willfully ignored the prohibition or immorality of their actions.
The judgments of the OLG Braunschweig and the OLG Hamm mark an important turning point in the jurisprudence on player lawsuits against gambling organizers. It remains to be seen how this legal opinion will develop further and whether other courts will adopt it.
Defendant gambling providers should therefore always insist on the effectiveness of the contract, even though this matter is subject to mandatory examination by the courts.
They should always precisely demonstrate that the player knew or willfully ignored the fact that participation in illegal gambling is prohibited in Germany.
4. Outlook – Putting an End to Infantilization!
If the nullity of the gaming contract is recognized, the decisive factor will be whether the defendant gambling company can provide evidence that the plaintiff player at least tacitly accepted participating in illegal gambling and violated § 285 StGB.
Here, the terms and conditions (AGB) of the gambling providers could be helpful. However, it is observed that both the lawyers of the plaintiff players and the courts disregard the fact that almost all gambling providers’ terms and conditions emphasize that gambling may be prohibited in the country where the player is located and that the player is responsible for informing themselves about the legal situation.
The problem, however, will be that the courts currently continue to coddle the players and set the standards for the burden of proof and presentation too high for the defendant gambling providers.
Even the principles for examining whether a mistake of law (§ 17 of the German Criminal Code (“StGB”)) excludes criminal liability speak against the way the courts handle the matter.
The saying based on § 17 of the German Criminal Code (“StGB”) “Ignorance of the law is no excuse” illustrates that a perpetrator only acts without guilt if they did not know they were committing an offense, provided that this mistake was unavoidable. Conversely, ignorance does not protect against punishment if the mistake could have been avoided.
Mistake of law under § 17 of the German Criminal Code (“StGB”) applies when a person, due to a mistake regarding the existence of a prohibition, believes that their behavior is permitted.
The mistake must be unavoidable, meaning that the player could not have avoided the mistake even if they had exercised the necessary care.
And here lies the crucial point: With regard to gambling in Germany, it has been and is avoidable for every player to believe that participating in gambling without the required permission under German law is allowed.
Players are informed about this in the gambling providers’ terms and conditions before registering.
This argument is often dismissed by lawyers representing players and by courts that prefer a player-friendly interpretation, with the claim that “nobody reads the terms and conditions.” This argument is not only highly questionable but should be strictly rejected. If taken further, it would imply that anyone can commit legal offenses because “nobody reads the laws.” This line of reasoning neglects the fundamental responsibility of every individual to know and respect the applicable laws and rules. Reading and understanding the terms and conditions is an essential part of entering into a contract and the legal obligations that come with it. It is insufficient to rely on ignorance or a lack of willingness to read contract terms in order to circumvent obligations or exempt oneself from legal consequences. The comparison with disregarding laws illustrates that the argument of not reading the terms and conditions as a justification for legal violations is not acceptable. Responsible and law-abiding behavior requires each contracting party to know and adhere to their obligations, including the terms and conditions.
There is still a culture in which lawmakers and courts tend to infantilize adult, legally competent, and capable citizens, considering them not fully capable of acting.
This phenomenon is particularly evident in the field of gambling, where players are often seen as vulnerable and incapable of making rational decisions. This leads to lawmakers and some courts imposing restrictive measures to protect players but at the same time restricting their freedom to make choices.
It is not only important for lawmakers and courts to respect the autonomy and ability of citizens to make their own decisions. Adults who are legally competent should be regarded as responsible individuals who are capable of weighing the consequences of their actions and being accountable for their own decisions.
Instead, it is necessary to pursue a balanced approach that takes into account player protection while respecting their autonomy. Overemphasis on protection can lead to neglecting individual freedoms and rights. It is therefore important to find a balance between protective measures and preserving individual responsibility.
It is hoped that lawmakers and courts will finally recognize this and make well-founded decisions based on legal doctrine rather than making decisions based on gut feelings.
The legal representatives of gambling companies are called upon to present substantiated and detailed arguments to demonstrate that the plaintiff player at least negligently closed themselves off from knowing about the illegality of their own actions. It is their responsibility to present the arguments and evidence indicating that the player could or should have recognized the illegal nature of their actions.
1) The author has received numerous statements of claim.