At the end of October, Minister Luiz Fux, of the Federal Supreme Court (STF), suspended a section of the sports betting law (14.790/2023) that prohibits advertising of lottery services in more than one state. The decision complies with the government of São Paulo, which requested a preliminary injunction (provisional) to suspend the rule after the judgment on the merits (final) was interrupted by a request for review by Minister Gilmar Mendes.
The so-called ‘Sports Betting Law’ was sanctioned on the penultimate day of 2023. The provisions in question were suspended last October by a preliminary decision by Minister Luiz Fux, at the request of the governors of São Paulo, Rio de Janeiro, Minas Gerais, Paraná, Mato Grosso do Sul, Acre and the Federal District.
Before the requests for review, only the rapporteur had presented his vote, which maintained the grounds for the preliminary injunction.
Context
In the lawsuit, filed in May, the governors claim that the restrictions imposed by the law reduce the participation of companies in bidding processes and favor an environment of competition between states, in which some tend to lose more than others. States with larger populations or whose population has greater purchasing power would be more attractive.
Another argument is the violation of free competition, since lotteries were deprived of the right to exploit their full advertising potential to attract new users.
In September, the Attorney General of the Republic, Paulo Gonet Branco, defended the validity of the sections contested by the governors. He emphasized that the Union has the authority to regulate the lottery system and the general regime of concessions and permissions for public services.
Decision of the rapporteur
Fux's injunction was granted a few days before the auction for the concession of lottery services in the state of São Paulo. The judge argued that, if the restrictions were maintained, the number of interested companies would tend to be smaller.
The minister considered that there is no reasonable justification for restricting the concession of lottery services to an economic group in more than one state. Fux emphasized that this is not provided for in article 175 of the Constitution, which deals with concessions or permissions for the provision of public services.
He agreed that companies with the technical conditions to provide more efficient services would have to compete for the concession in more populous and more profitable states. This would harm smaller states, which would lose potential revenue and would be forced to sign contracts with companies that are “tendentially less qualified.”
The rapporteur also considered that the law “takes away from the states, without any reasonable justification, the possibility of adopting advertising strategies that best suit their business planning.”
Fux explained that the decision is only aimed at modalities such as lottery of numbers, numbered tickets and instant lotteries. Fixed-odds bets, known as bets, are questioned in another action.
Source: GMB / Portal Juristec
