PLAYER CLAIMS
player with risk prone gambling patterns alone would have led to reimbursement liability, even though that seems unlikely. As will be discussed below, that conclusion is likely to have been reversed as of 1 January 2019, when the current statutory RG requirements were implemented. RG liability – an outlook While the scope of the case before the Supreme Court is limited to gambling operations before 1 January 2019, the forthcoming judgment may very well include precedential points on reimbursement liability for gambling operations under the current Swedish license regime. On that note, there are a few other civil cases pending before lower courts that cover gambling after the reregulation, and considering the regulatory RG burden put on operators as of the implementation of the license system, the outlook for those actions is indeed more sympathetic to ex-players. Namely, that the implementation of statutory RG requirements on 1 January 2019 entailed a sanctioned requirement to monitor and take preventive safety measures to protect players that exhibit risk prone gambling patterns. The current RG requirements thus effectively form a “regulatory squeeze” in relation to civil liability and vice versa. Should the circumstances in the Supreme Court case have occurred under the current license regime, the operator would have faced serious regulatory risks if it claimed that it was unaware of the customer’s gambling issues, as such a position would entail exposure to regulatory sanctions due to monitoring failures. Often, regulatory violations can also prove even more costly as sanction fees are normally set at considerable seven- or eight-figure amounts (SEK), and up to 10 percent of the operator’s GGR for the preceding fiscal year. Conversely, a final judgment on RG violations in regulatory court proceedings arguably provides a promising springboard for civil reimbursement actions and/or damages. Here, the Swedish Gambling Authority has seemingly mobilized a new frontline as it has initiated several supervisory
proceedings against operators based on purported RG violations. In short, the SGA has issued sanction fees against a handful of operators based on their lack of preventive measures towards high-volume customers with raised deposit/betting limits. So far, the lower courts have ruled in favor of the SGA, albeit at lower levels of sanction fees than those initially set. The regulatory cases are currently working their way through the administrative court system and, similar to the civil liability situation, one case is presently pending before the Administrative Supreme Court which is yet to rule on the issue of leave to appeal. A floodgate ajar – in limbo It is difficult to foresee how the Supreme Court will rule in the civil case as the case law on the relevant statute in the Swedish Contracts Act is extremely scarce and yet to be applied to gambling issues. The Supreme Court’s decision to grant leave to appeal has incidentally cooled off and halted the expected floodgate of lodged claims that was foreshadowed in the aftermath of the Appellate Court judgment. The litigation limbo is not expected to go away before the Supreme Court’s decision which should be expected in 2025, but prudent operators should indeed prepare themselves. The litigious trend in central Europe could soon become a reality before Swedish courts should the judgment stand. Irrespective of the outcome, the ex-player community might in parallel be provided with additional oxygen depending on the outcome of the regulatory RG proceedings which are currently working their way towards the precedential court instances. Seemingly, the SGA has identified this as a key enforcement issue and more actions should be expected. As discussed above, any findings of RG violations in such proceedings should form a solid base for civil reimbursement actions. In summary, 2025 is shaping up to be a decisive year for the Swedish gambling market and is likely to determine whether Sweden will follow the litigious path of Germany, Austria et. al.
PETTER LARSSON Senior Associate, Westerberg & Partners Advokatbyrå AB For information contact +46 8 5784 0300 petter.larsson@westerberg.com STEFAN WIDMARK Partner, Westerberg & Partners Advokatbyrå AB
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IMGL MAGAZINE | DECEMBER 2024
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