Has that practice been tested yet?
I am not aware of any test cases that have occurred in the specific context of software EULAs. That said, the practice of including mandatory arbitration clauses and class action waivers in software licenses picked up around the same time as a couple of federal cases that strengthened such clauses. The cases in question specified that a challenge to the legality of a contract with a mandatory arbitration clause must be first heard by an arbitrator, before it can be heard by a court.
EA was the first one I remember hearing about doing that, and since then almost every EULA in existence has added an arbitration clause.
Two points on this:
First, the trivial: I think that, in the realm of video games, Bethesda either beat everyone to the punch or was a very early adopter.
Fallout 3's EULA (the disc version--this wasn't snuck in later) has a mandatory arbitration clause, and that came out way before I started watching out for that particular brand of shennanigan. The disc version of
Dragon Age - Origins, an EA title released a year later, did not have such a clause. EA is definately on that train now, which was why I've given subsequent DA titles a miss, but they weren't the first.
The more substantial point, though, is that not all EULAs do carry mandatory arbitration clauses or class action waivers. They're mostly limited to big publishers and particularly those based in the United States. In 2012-ish, I stopped buying games and using platforms that required a class action waiver and/or mandatory arbitration agreement. I even stopped buying games for which I couldn't view the EULA ahead of purchase. My library on GoG is substantial and continues to grow, limited more by my own cashflow than prevalence of bad licenses. There's enough pro-consumer publishers (or at least publishers based in international jurisdictions that don't put up with this level of anti-consumer bull****) that you can avoid odious license agreements without having to give up gaming as a hobby.
