Heroic Tavern Brawl: Risky, but not a Gamble [Law & Hearthstone Post]

Warning: this is another long post. The first section is pure Hearthstone, if you’re into that. The second section is a little about gambling laws in general and why the Heroic Brawl does not constitute “gambling” in the legal sense. The third section is a picture of a potato. You all deserve a potato for reading through my long posts.

I. What is the Heroic Brawl (and why some people are mad about it)

img_2402A few days ago, Blizzard announced (and then kind of un-announced) it’s upcoming “Heroic Tavern Brawl” mode. Initially, people were pretty excited, about it. It looked like a precursor to the “tournament mode” that so many of us have asked for for so long.

From the get-go, some people were put off by the 1000 gold buy-in. Although some of us had started saving for the anticipated next expansion (which will, in my opinion, likely be announced at Blizzcon in two weeks and be released early next year–so start saving), many simply did not have that much gold laying around yet. img_2408 The limited time of the event seemed to require them to go all-out for a week in order to get enough gold in time to play (recall, at first everyone thought the heroic brawl would take the place of this week’s brawl). Others, including notable pro and game designer Brian Kibler, thought the price was too steep, regardless of whether players could afford it. Still more were a bit put off that it would take the place of the regular brawl that week, effectively taking away our anticipated free pack.

img_2404Once the prize structure was announced, however, the masses became decidedly against the mode. People quickly determined that the “break-even” point of 5 wins (estimated by valuing packs at 100 gold and about 100 dust) would be no easy feat for the average player, as it would require one to go at least 5-2 (over 71% winrate) in the first 7 games.

People further pointed out that the prize structure did not appear aimed at the vast majority of players at all, but more towards the professionals (particularly those who stream). Ville Kikku (@Old_GuardianHS on twitter) wrote a great piece about why the mode is a more luck- based than most other modes of play, and not a good decision for most players (check out the entire article here). Briefly, his points include 1) that the ultimate prize requires one to go at least 12-2 throughout the event (nearly an 86% winrate), a streak that is rarely replicated at any point on the ladder; 2) that a one-deck format such as this is never used in tournaments, as it is recognized that the possibility of bad matchups or bad draws make it a poor format; and 3) by the numbers, 77% of Heroic Brawls will fail to reach the five game “break even” point.

He concludes that the format only appears to exist for two reasons: 1) to remove hoarded gold from the market before the set announcement/ release, so as to encourage more pack purchases with real money; and/or 2) to get gold/money from those who like to gamble, simply because they know the odds of winning the prize are against them.

Taking slight issue with the “only,” I agree that removing gold from the market appears to be one major goal. Looking at the prize structure, one does not get his/her entry fee back (in actual gold) unless s/he goes the full 12 wins. This means that people who do the brawl are almost guaranteed to have less gold for packs in the future. They may have a lot more dust, and be able to make up for lost purchases in that way, but most people want to open PACKS on release day. The second conclusion, upon which both Kikku and my posts are based, really got my lawyer senses tingling, not because he was wrong, but because “gambling” is very hot-button legal issue these days.

II. A Basic Gambling Law Primer for the Intellectually Curious

Altogether too late in my life (starting about my second year in law school), I decided to ignore the naysayers and look into videogames as a legitimate career option. To that end, I wrote a piece in law school about how gambling and other laws affect games that use in-game currency to purchase items. The entire paper can be found here, but I will be borrowing some “highlights” from it below (my citations got all messed up in the copy and past process, so I took them out; please forgive that rookie move and ask me or see the whole doc if you have questions). I did a little research to make sure it was mostly still up-to-date, but the standard “I’m not your lawyer” and “this is not legal advice” warnings still apply.

A. Federal Law

There are several federal laws that touch on gambling, from RICO to the Interstate Horseracing Act, but one of the most relevant to mobile gaming is 31 U.S.C. 5361-5367, the Unlawful Internet Gambling Enforcement Act of 2006 (“The UIGEA” or by section). Enacted in response to online casinos, the act was intended to allow enforcement of existing laws, not to expand or contract gambling law at the time.

The UIGEA prohibits “unlawful Internet gambling,” which means, “to place, receive, or otherwise knowingly transmit a bet or wager which involves the use, at least in part, of the Internet, where such a bet or wager is unlawful under any applicable Federal or State law in the State or Tribal lands in which the bet or wager is initiated, received, or otherwise made.” (Although not relevant for the subject matter here, it should be noted that the UIGEA does not include, among other things, “a bet or wager initiated and received or otherwise made exclusively within a single State.”

For purposes of the act, “bet or wager” means “the staking or risking by any person of something of value upon the outcome of a contest of others, a sporting event, or a game subject to chance[,] on an agreement or understanding that the person or another person will receive something of value in the event of a certain outcome.”

Where players do not have the opportunity to receive real world consideration (money, property, etc.), the prizes are considered to lack “value,” regardless of whether players can purchase the prizes for real world money. Note how this create a one-way system of valuation: obviously, if people are willing to spend real money on the things that are the prizes (that is, converting IRL money into those items that are awarded as prizes, such as Hearthstone packs), then those things can be said to be valuable (at least to the potential purchasers), but the law does not consider those things valuable unless the conversion can go from prize to IRL money.

The definition of gambling also does not include, “participation in any game or contest in which participants do not stake or risk anything of value other than… points or credits that the sponsor of the game or contest provides and that can be used or redeemed only for participation in games or contests offered by the sponsor.”

Applied to Hearthstone, then, you can see a few exceptions to the law apply: 1) no players are allowed to “cash out” their accounts (Blizzard prohibits it and there is certainly no official way to do so), so there is no “value” to any prizes won; and 2) those players who pay the entry fee with in-game gold have not staked anything of value other than “points or credits.”

B. California Law (because Blizzard and I are here)

The California Gambling Control Act specifies that “‘[g]ambling’ means to deal, operate, carry on, conduct, maintain, or expose for play any controlled game.” In this context, a “‘controlled game’ means… any game of chance… played for currency, check, credit, or any other thing of value[.] ” A case dismissed just earlier this year ruled that California law, like federal law, does not attribute “value” to digital prizes that cannot be “cashed out” (link to decision here).

Moreover, the Gambling Control Act does not include “[p]inball and other amusement machines or devices, which are predominantly games of skill[.]” The law does not require games to be entirely skill-based, just predominantly so. (Technically, California could ban games that are not purely skill, but that would be dumb both standing alone and because the Equal Protection Clause would require California to ban all games that are not purely skill–accordingly, it will never happen, and the exception will likely always apply).

Here we see another applicable gambling exception under California law: as much as we like to joke and meme that Hearthstone is just a game of luck, that is decidedly untrue. Even the highest level professionals frequently make mistakes that decide games, even in high-level tournaments like the Hearthstone Championship Tour and Hearthstone Masters (below).

xixo-lethal
Lethal puzzle that top-pro Xixo could not solve at the time, which cost him the game and the match. (Props to @BradHearthstone for pointing it out). 

III. A Potato

In sum, you probably don’t want to do the Heroic Brawl unless you are super good, ok with throwing away money, and/or a degenerate gambler (in which case, get help). But, if your religion, wife, legislature, etc. don’t let you “gamble,” you’re (legally-speaking) in the clear! For the reasons discussed in Part II, the Heroic Brawl is not technically legally “gambling,” which is surely something that Blizzard’s legal team decided long before the feature was announced. Sorry for the long post, here’s a potato (and my dogs, one of whom is very curious of the potato I have presented them).
img_2431

 

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6 thoughts on “Heroic Tavern Brawl: Risky, but not a Gamble [Law & Hearthstone Post]

  1. Really interesting view, great read! I’ve also heard podcasters talk about how Heroic Tavern Brawl is testing the waters for some kind of a tournament mode. While the mode can be seen as gambling, it can also be seen as paying a tournament entry fee with the expectation that it’s unlikely that you’ll make your money back.

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    1. Thanks! I’m one of those who hopes that it was/is testing for a tournament mode. The problem is that the structure they used got a lot of negative feedback. I hope it didn’t dissuade them from going through with it!

      Like

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