SÁB 4 DE DICIEMBRE DE 2021 - 20:22hs.
Renato Campos Andrade, head of compliance at Manucci Advogados

The complex legal system on gambling and betting in Brazil

The gaming sector in Brazil has three incidences: prohibited, tolerated and authorized. Llawyer Renato Campos Andrade thus defines, in an article published on the domtotal website, the way in which the activity is conceptualized from a legal point of view. Based on this premise, he clarifies the conditions of each one and questions whether and when it will be regulated, but sentences: “not every game is legal and not every bet is ilegal.”

This week the subject will be a very current topic and relatively little disseminated and debated, since the questions are usually made for peripheral issues and without the technical insertion involved in the issue.

It is about the debate about the regulation of gaming in Brazil.

First, it is important to establish that there are several areas for debate such as lotteries, sports betting, electronic games, casinos, etc.

For the purposes of conceptualization and delimitation, it should be clarified that the law addresses the issue under three incidences, prohibited, tolerated and authorized games.

In this sense, the debate must first place the discussion on the current regulation. For example, although there are several bills and the debate has advanced in the legislature, currently, gambling in casinos is prohibited in Brazil.

On the other hand, lottery betting is allowed. Sports betting has legislation that removes it from illegality (Law nº 14.183/2021), but it still lacks another law for its regulation.

Returning quickly, gaming can be considered illicit or licit, constant, in the latter, those tolerated and authorized.

Authorized games are those duly legalized, as in the case of lotteries and, therefore, they are legal transactions subject to enforceability; that is, both the lottery house can charge for the purchased ticket, and the player can demand payment of the prize if be a winner.

Another example is given with regard to betting on horses, duly regulated by Law 7.291/1984, with the following wording: "Art.6 - Horse racing, with the exploitation of betting, is permitted in the country."

On the other hand, games that are tolerated are those that were not typified as illegal, as in the case of the Misdemeanor Law, but, as they are not properly regulated, Civil Law does not prohibit them, but does not impose payment; that is, the eventual loser is not subject to forced collection, as payment is considered a mere legal obligation.

Finally, the prohibited are those expressly prohibited, as mentioned in the Criminal Misdemeanor Law:

Currently, Decree-Law 3688/41 establishes:

Art. 50. Establishing or operating a game of chance in a public place or accessible to the public, upon payment of entry or without it:

It should be noted that the Federal Supreme Court is considering an ADI that can rule out the conduct of a criminal offense, which would reinforce the legalization of other gaming models.

In any case, there is an understanding that, if the game is played on the internet, on a website whose server is located outside the country, there would be no territorial coverage for any sanction, as it would be equivalent to a bet on a casino outside Brazil.

Going more technically, we must learn from our columnists of the week:

Dr. Filipe Senna Goepfert, in the text ‘Electronic Gaming and Immersive Technologies: lessons to the Public Power of an expanding sector’, sets the tone for electronic games, another very current topic and explains the legal contours:

Everyday, situations like the following ones have become more and more noticed. Upon receiving their credit card statement, a parent discovers that their six-year-old child has spent more than US$16,000 on micro-transactions for a mobile game, or that their teenager is a "hardcore gamer" and consumes several hours a day on electronic games. These are situations much more common than one might imagine.

With regard to sports betting, it is worth taking the lessons from Dr. Sérgio Garcia Alves in the text Regulatory outdatedness on sports betting in Brazil:

In simpler words and currently stamped in the sponsorship format on uniforms of almost all Brazilian football clubs, around sports fields and courts, in MMA rings, in the square meters of race car fairing, in online directed marketing, during the break of your favorite sport on open channel or by subscription, Law nº 13.759/2018 formalized the creation of sports betting in national territory.

Finally, regarding the most controversial topic of this news, the article ‘O Cassino no Brasil: Expectation of better days’, written by Dr. Ricardo de Paula Feijó:

Two big questions are on the agenda at this crucial moment in the history of gambling in Brazil: will gambling and casinos be approved? If so, how will the exploitation of casinos be authorized?

It appears, therefore, that not every game is legal and not every bet is illegal. What's more, the discussion is very much in vogue in the country and calls on everyone, specialists and the population, to debate.
 

Renato Campos Andrade

Graduated in Law, post-graduated in Procedural Law, master and doctoral candidate in Environmental Law and Sustainability, member of the Brazilian Institute of Civil Law, member of the Brazilian Academy of Civil Law, member of the Compliance Committee of the OAB/MG, member of the Brazilian Institute of Corporate Governance -IBGC, arbitrator at CAMES - Chamber of Arbitration and Specialized Mediation, Professor of Law at Dom Helder Law School and EMGE and Head of Compliance at Manucci Advogados.