The Supreme Court (OGH) dealt for the first time with the legal classification of over/under bets in decision 8 Ob 112/23p. HUBER | Lawfirm successfully represented the defendant betting operator in all instances.
The plaintiff placed over/under bets. This means betting on the total number of points/goals in the entire betting event (final result). The points/goals of all teams in the entire game are summed up. Whether the bettor wins depends on whether more or fewer than the specified points/goals are scored by the end of the game—regardless of which team scores them. For example, (over) more than 3.5 goals. The bets underlying the case were placed as live bets, i.e., the bets were made while the sporting event was already in progress.
The plaintiff argued that these over/under bets are largely dependent on chance and should therefore be classified as gambling under the Gambling Act and demanded a refund of his lost stakes. The lower courts had already dismissed the claim, reasoning that sports betting is not gambling. Although sports betting also contains an element of chance, the outcome of the sporting event can be calculated based on knowledge of the participants, training condition, weather, etc. The element of chance thus recedes into the background. Furthermore, sports betting is not covered by the federal gambling monopoly in terms of competence law.
Supreme Court jurisprudence regarding over/under bets was previously lacking. The OGH admitted the plaintiff’s extraordinary appeal but rejected his claim. Beyond the specific legal question, the OGH used the decision as an opportunity to make a fundamental and far-reaching distinction between sports betting and gambling:
Bets regulated in the state laws are not subject to the gambling monopoly.
The type of bet is irrelevant. A bet remains a bet. Although the outcome of a football match is not entirely predictable and can also depend on chance, it makes no difference whether one bets on a team’s victory or, in the case of over/under bets, on the number of goals, because in each case it is a bet on the not entirely predictable final result of a game.
An illegal interference with the gambling monopoly, i.e., offering gambling without a license, is prohibited. Gambling contracts are void and may give rise to claims for damages by players who have suffered losses.
In contrast, sports bets are neither prohibited by the legislature nor subject to the federal gambling monopoly.
Bets offered without a license are also valid. The purpose of betting licenses is to prevent unsuitable persons from exercising the profession, but not to undo contracts concluded by unauthorized persons that could have been concluded by others in the same way.
With its recent decision, the OGH clearly rejected betting lawsuits and, consequently, the expansion of the (lawsuit) industry that has emerged in the gambling sector in recent years.
We welcome the OGH’s legal view and are happy to provide further information and answer any questions!
