The liberalization of the gambling activity in Brazil is a recurring agenda. It has recently been strengthened by the economic crisis and the recent decision by the Supreme Court that recognized the unconstitutionality of the Union's monopoly on lottery services.
In 2021, there is an omen of change in the fortunes of gambling in the country. Three themes will come to the fore: the new development of state lotteries, the regulation of sports betting and the release of games of chance in general. Let's look at the main issues for each of these topics.
The exclusivity of exploitation of lotteries by the Federal Government ended in September 2020, when the Federal Supreme Court judged 3 actions (ADPF 492, APDF 493 and ADI 4986) and understood that the Federal Constitution does not authorize this type of monopoly. After the trial, the states began to have the competence to also create and operate lottery services in their territories.
Several states are already passing laws authorizing the creation of their lotteries and are taking steps to exploit them. This is the case, for example, of Maranhão, which is already planning the structuring of its lottery after having approved a law authorizing the creation of a state lottery.
The prospect is that several states will create and implement their own lotteries. A relevant doubt, however, still hangs in the air: what are the limits and possibilities that States have to regulate their lottery services?
Although the States can create and organize their lotteries, the Union still has the competence to issue rules to regulate lottery services. This was recognized once again by the STF. Thus, States will have to follow the Union's rules to organize their lotteries, while the Union does not want to grant much freedom to States. It is in this discussion that disputes may arise between States and the Union.
This discussion may also hamper the long-awaited regulation of sports betting. Approved in 2018, the activity has been in the process of regulation by the Union since then. As sports betting is also considered a lottery modality, in principle, nothing prevents States from also exploiting them individually, instituting specific sports betting in their territories.
State exploration can, however, undermine the idea announced by the Federal Government to grant a limited number of sports betting concessions and raise high grant values.
With the concessions, the Federal Government intended to raise substantial amounts that would be paid by companies interested in obtaining a betting concession. However, if there is no longer the Union's exclusivity for the exploitation of sports betting and it cannot grant a monopolized market to the operators, this may make it impossible to collect values for these concessions.
Other issues may also arise from this conflict between the Union and States, such as the form of inspection and the limits of action for each operator. After all, States could only authorize exploitation in their territories. This takes on more complex contours when you think about the amazing market for exploiting online betting, as it already occurs in national territory without regulation.
The way out of these problems is not simple and possibly requires an effort of inter-federative cooperation. An adequate adjustment between States and the Union for the joint exploitation of sports betting may be the most efficient solution, capable of bringing greater benefits to the federative entities themselves and to the population.
The very idea of granting a concession can be made more flexible, seeking the entry of more players in the national market. It is possible to consider replacing a model with few operators for an open model, similar to an accreditation, which enables greater development of the sector and, consequently, greater economic and social benefits.
As if that were not enough, the 2021 scenario is conducive to the liberation of games of chance in general, by a decision of the National Congress or by decision of the STF itself. In Congress, there are countless bills being debated. It is also notorious the manifestation of several federal deputies and senators in favor of the sector, especially given the potential for generating jobs and foreign exchange for the country.
In addition to the Congress, the topic is also scheduled to be discussed by the STF on April 7, 2021 (Extraordinary Appeal No. 966,177). In that case, the STF will decide whether the ban on the exploitation of gambling envisaged since 1947 is constitutional or whether it violates the fundamental right to freedom and free enterprise. If the STF considers that the provision of the ban on the exploitation of gambling is not constitutional, we will have a liberation of the activity throughout the national territory, regardless of the law.
Therefore, the gambling and lottery scene this year looks exciting, but just as challenging.
In 2021, the dice are thrown so that the competent authorities can take advantage of the opportunity and, finally, institute a regulation that allows the greatest possible competition in this market, in order to enable the broad development of the activity and constitute an effective responsible gambling regime, which demystify the current demagogic paternalism.
With that, the benefit will be of the whole society, with the creation of jobs, generation of taxes and redistribution of social wealth.
*Thiago Lima Breus, Doctor and Master in State Law. Adjunct professor at UFPR. Lawyer and head of administrative law and infrastructure at Vernalha Pereira Advogados
*Ricardo de Paula Feijó, Master in State Law from the Federal University of Paraná, with research focused on the regulation of gambling. Lawyer at Vernalha Pereira Advogados
Source: Estadão
