eBay’s TCGPlayer Updates Direct Seller Program, Drops Sealed Product Sales Amidst Regulatory Scrutiny
UPDATE 2-27-25
TCGPlayer has resumed selling on eBay, with a single auction started on February 24th.
Coincidentally, February 24th is also the day the Department of Justice was granted their request for more time to decide whether or not to move forward with appealing the EPA case against eBay which was dismissed on Section 230 grounds.
eBay had anchored their argument on the idea that they are "never a seller" and only a "pure third party peer to peer marketplace" - a position that these TCGPlayer eBay sales clearly disproved.
Liz Morton
The fact that TCGPlayer stopped selling on eBay while the threat of an appeal was hanging over their heads and has only resumed selling now that it looks like the DOJ may back down is very interesting timing indeed.
eBay owned TCGPlayer collectible card game marketplace has updated their Direct Seller Agreement, no longer allowing sealed products in the program as regulatory scrutiny heats up.
The Direct program allows eligible sellers to have TCGPlayer fulfill orders on their behalf from stock TCGPlayer has on hand, with the seller than sending their own stock in to replenish the items that were sent to the buyer.
Previously, TCGPlayer would sometimes end up with sealed booster boxes or unique serialized cards as a result of sellers sending these products in to the Direct program, which created a problem because, according to company, those items could not be listed and resold on the TCGplayer site.
That led eBay to come up with a controversial solution to the problem - creating an account on the eBay site under the TCGPlayer name to sell these serialized cards and booster boxes.
A company blog post revealed these plans last year, saying these items would be sold through eBay and the proceeds would be reinvested back into the TCGPlayer Direct program.
In keeping with eBay's questionable track record on disclosure and transparency, they set up the TCGPlayer branded shop on the site in August 2023 and had been making sales at least as far back as January 2024 - but only decided it was necessary to announce this development on April 8, 2024.
The move raised eyebrows amongst eBay sellers as it officially marked an end to eBay's decades long assertion that it does not compete with 3rd party sellers.
Liz Morton
The clear conflict of interest, as well as lack of transparency and disclosure that consumers would be purchasing directly from an eBay-owned company also raised concerns about anticompetitive practices that were included in a petition filed by the Responsible Online Commerce Coalition on behalf of a group of TCGPlayer sellers urging the FTC to investigate eBay's acquisition of the company.
Liz Morton
But the implications of TCGPlayer selling on eBay go far beyond competing against their own sellers.
For example, the EPA sued eBay in 2023, seeking to hold the company liable for the sales of prohibited pesticides, restricted chemicals, and illegal emissions-control cheat devices on the platform and eBay pursued a Section 230 based defense, arguing that it is "never itself a seller" and is instead "a pure third-party, peer-to-peer online marketplace" - both of which were demonstrably false in light of TCGPlayer's sales on the platform.
Those arguments prevailed on September 30, 2024, with U.S. District Judge Orelia Merchant dismissing the case and ruling that Section 230 of the Communications Decency Act does protect eBay from liability for those sales.
Liz Morton
The Department of Justice is currently appealing the decision and the relevance of TCGPlayer's sales on the eBay platform could still come into play - which makes this most recent Direct Seller Agreement update even more interesting.
The update was posted on January 27, 2025 and among other things, adds a new section explicitly prohibiting sending sealed product into TCGPlayer as part of the program going forward.
Sellers may not send sealed products to TCGplayer in their RIs [Reimbursement Invoices]. Any sealed product sent to TCGplayer will be rejected as a discrepancy.
Those sealed products were specifically called out as the reason for needing to have TCGPlayer selling directly on the eBay site, so changing the policy to explicitly prohibit them from the program would indicate eBay has decided to stop that practice in an effort to avoid additional regulatory scrutiny.
Coincidentally, while the TCGPlayer account is still live on eBay.com, it has not posted anything for sale in over 90 days.
According to eBay's own Terapeak Research tool, the last sales made through the account were on September 23, 2024 - one week before the EPA case was dismissed.
The FTC under Chair Lina Khan did not make any formal or public response to that ROCC petition, which was disappointing by not surprising given the close connection that Khan and others at the Commission had to eBay founder Pierre Omidyar.
Might newly appointed FTC Chairman Andrew Ferguson be more inclined to look into the matter?
It's too early to say but one section of his agenda promising to "[take] on entrenched left-wing ideologues at FTC who take their agenda from liberal journalists & activists" could be construed as note so subtle shots fired at Omidyar and others who have held ideological sway over the Commission in recent years.
If Ferguson wants to show it's a new day at the FTC and disavow the apparent regulatory capture under previous leadership, taking the ROCC petition seriously and launching a thorough investigation into eBay's business practices, including M&A due diligence failures and deceptive dark pattern ad practices, would be a good place to start.
TaiapanPenguin
