Once again, sports betting operators were able to prevail before a regional court and successfully defend themselves against one of the so-called player claims that have become popular. According to the Heilbronn Regional Court, anyone who is not addicted to gambling or cannot credibly prove this is not covered by the protective purpose of the former internet bans on gambling in Germany and is therefore not entitled to repayment of betting losses.
Far from the substantive legal considerations underlining the submission of the defendant sports betting operators, the judgment of 23.06.2023 dismissing the action is particularly remarkable against the background of the previous case law of the deciding Regional Court. Whereas the judicial colleagues had previously always upheld lawsuits that landed in the Heilbronn judicial district, the ruling cited here represents a clear break with this case law and is consequently all the more gratifying. The differentiating approach recognises that the decision on the requirement of nullity of betting contracts „cannot be exchanged by judicial balancing or moral value judgements on the conduct of the contracting parties to the legal transaction“ – „the yardstick [is] rather that the purpose of the law cannot be achieved in any other way than by the nullity of the prohibited legal transaction“.
The player claims mostly revolve around claims for restitution under enrichment law, by means of which the plaintiffs demand reimbursement of losses from participation in gambling on the internet. The lynchpin of the legal dispute is then the question of the validity of the underlying betting contracts. Did the offer of bets violate a legal prohibition? Does the violation of the legal prohibition lead to the overall invalidity of the betting contracts?
This was precisely not the case here. The prohibition laws at issue ( Section 4(4) IST2008 and Section 4(4) IST2012) were directed against only one of the two parties involved. If not all parties involved are addressees of the prohibition law, it does not follow from the unilateral violation of this law in general and thus contrary to the claims of the plaintiff that the betting contract is completely void. This is in line with the long-standing case law of the Federal Supreme Court. Only if, on top of that, the protective purpose of the Prohibition Act requires a nullity of the (betting) contract and a resulting reclaimability of the losses, the claims under the law on enrichment must be granted.
According to the legislative explanations of the State Gambling Treaties, the historically standardised Internet prohibitions were intended to protect health (specifically: to prevent gambling addiction) and, with regard to the experimental clause on Internet sports betting, to channel gambling operations to the legalised market. However, health protection and combating the black market do not include the protection of players‘ assets. „This leaves the reduction of assets of every player who, after a free decision of will, also loses the bet due to the risk of loss inherent in gambling, out of the scope of protection of the norm. At most, financial losses suffered by a gambler due to his pathological gambling, which has not been proven in the present case, fall within its scope of protection.“Moreover, regulatory sanction mechanisms already existed that would adequately punish any violations of the prohibitions. According to the intention of the law, there was no need to impose a civil fine on the operators, which could be enforced in court. The purpose of the bans could therefore have been achieved through public law, for example by applying the supervisory measures provided for in the State Gambling Treaties.