Luiz Carlos Prestes Filho: Anyone who studies the Law of Criminal Misdemeanors realizes that it is outdated. Why does it continue to support the ban on money betting games managed by the private sector?
Roberto Carvalho Brasil Fernandes: I understand that the rule that criminalizes the exploitation of gambling in cash, affects only those modalities that are not yet legalized and / or regulated in the country, or those that, although they are in the portfolio of legalized activities, are exploited without proper “authorization”. See that there are several legal and regulated betting games in Brazil, which are exploited by the private sector, such as the more than 14,000 permissioned lottery agencies of CAIXA, the companies that operate the lottery modalities in some states, the draws by capitalization companies, the commercial promotions authorized by Law 5.768 / 71 through SECAP/ME, horse racing bets, poker and other modalities in which there is a bet on the result of a drawing or competition and the respective prizes. Note that what the Criminal Law criminalizes is not the “game itself”, but its exploitation. The figure who is most strongly affected by the sanction, for criminal purposes, is the one who actually gets some economic benefit from the exploitation of the game, the entrepreneur (even if those who participate in it can also suffer sanction).
For this reason, lottery agents should also be considered among businessmen in the sector, and submitted to the respective legal rules. In my view, there is a significant distinction that must be considered, among the various activities in which there is also a bet, draw / competition and prize. I refer to lottery modalities (which are not conceptually games of chance), games of chance (so typified by Brazilian law), charity raffles, commercial promotions, bets on regulated sports competitions and games of skill. Each with its particularities, which cannot be confused. Understanding the concept of each of these activities, ensures legal exercise or attracts the Criminal Misdemeanor Law. With these considerations in mind, I agree at the point of the lawsuit in the STF (RE966177) that the ban on the exploitation of “games of chance” in Brazil, does not protect any legally relevant asset and is therefore invalid. Not only because of the inability to actually ban (the jogo do bicho, considered the most honest modality in Brazil, has been exploited in the whole country for over 100 years, in contrast to article 58 of the LCP), but because it is accepted by the majority of the population.
However, the legalization of other types of gambling is necessary and urgent, as there is a great demand. There is also the advancement of offers on the internet from foreign sites, whose only and efficient way to curb exploitation in the national territory, is to occupy this space, regulating here as well. There is a need and urgency in the legalization of other modalities in which there is demand in Brazil, such as traditional games and typical casino modalities.
I conclude noting, however, that the ban on the exploitation of any type of betting game (gambling) that does not have authorization from the competent public body, based on the law, must be observed, because it is in compliance with the rules that the exploitation of bets is converted into benefits for the society where it is established
Does the Brazilian legislature need to carry out a comprehensive reform and remove obsolete laws? What would be the priorities? Would eliminating the rubble of obsolete laws help regulate the gambling sector?
It does not seem to me that it is necessary to revoke the rules that prohibit the exploitation of “games of chance”, but rather to legalize and regulate all modalities of “games of chance”, especially those already adopted in mature markets and adopting rules identical to others countries where this has been happening for a long time. The ban on those who wish to exploit without complying with the legal rules, must remain strict, under penalty of making a legal gaming market in the country unfeasible.
Does the STF judgment on the Criminal Misdemeanor Law run over bills that are underway in the National Congress related to gambling?
The National Congress is sinning by default. The Federal Government also has no firm attitude in favor of this market. That’s why the provocation of the Judiciary, in the highest Court, the STF. Perhaps an injunction order would also be appropriate, if we consider that the exploration of the modalities of “games of chance” is about the exercise of a right, a constitutional freedom, under the terms of art. 5, LXXI of the CF, obliging the regulation of the activity, which in this case, must be considered of a private nature, typical economic activity of art. 170 Sole paragraph of CF / 88 (in theory). In my view, it is not a matter of trampling on the functions of federal legislators, not least because this would not be possible, but of seeking support in the judiciary, for the exercise of a purely economic activity, which the government has not regulated, and the legislator sector has not defined the rules of exploration.
Does the project approval that regulates cassinos resort promote legal uncertainty for investors?
No. Casinos resorts are projects that, in my opinion, should be legalized and well-regulated in Brazil. These are investments that generate jobs and income, attract domestic and foreign tourists, and occupy an existing demand. The different types of games explored within these establishments, which include bingo, slot machines and table games, have an interested public, ensuring the economic viability of these developments. However, I defend the concomitant existence of Resort Casinos and Multidisciplinary Casinos, the latter without a hotel. I explain: the hotel chain in tourist cities, would benefit from a new tourist tool, focused on entertainment, as long as its customers stay in the surrounding hotels, while the Casinos Resorts, due to the investment, may have a protected area, ensuring the level of investment, because whoever goes there, as a rule, stays in the structure of the Casino Resort itself. I say more. In my opinion, Multidisciplinary Casinos should be urban, where different types of games are allowed, including bingo cards, which was very successful in the late 90s, as well as being an enterprise, preferably developed by national groups, for ensure that revenues circulate in our country.
With the regulation approved in the STF, will we have to create a robust legal structure? Should this legislation be better developed and competent than the one that authorized the operation of bingos in the 1990s? What are your proposals?
The STF cannot regulate the market, it will only declare the validity or invalidity of the part of Decree 3,688 / 41, which refers to the prohibition on the exploitation of “games of chance”. Note that criminal rules exist to protect a legally relevant asset. For example: homicide is prohibited to protect life; theft is prohibited to protect property, rape is prohibited to protect sexual dignity. So one asks: what is the legal asset being protected, when it is intended to prohibit the exploitation of gambling in Brazil? When answering this question as well, the STF will declare the referred rule subject to examination valid or not.
As for the law that authorized bingos in the 90s, I note that it was not a law that had as its object "Bingo", but national sport. Bingo was just a source of revenue for those purposes: sport. If the Congress comes to legalize the private exploitation of bingos and other types of gambling, based on this decision by the STF (or not - the National Congress - CD and SF, does not depend on this decision to deal with this matter), it must address administrative issues, related to jurisdiction, tax issues, penalties etc., which of course can (and should) adopt models that already exist in other countries, with rules and mechanisms that allow a good and healthy business for the population / society, for the business entrepreneur and government.
Would a National Gaming Agency, such as the National Petroleum Agency, be an appropriate structure?
In my view, yes. These are entities that protect public and private interests, streamline the regulation of relevant economic activities and have freedom that, in theory, keep them from merely political party interference. Together with a good law, it would contribute a lot to maintain the health of the entertainment market, which includes the exploration of all types of gambling in Brazil.
Is Brazil, institutionally, prepared for the regulation of the gambling sector? Does the democratic regime favor the regulation of the activity today?
Yes, Brazil is lagging behind in this regard. Our country controls one of the most complex financial systems in the world, holds elections in an electronic format very efficiently, states are prepared and eager to welcome developments in this sector, tourism needs these activities to increase its core activities, we have maintained millions for years of unemployed people who can, in part, be absorbed by the new market, there is intense demand. Just check the number of Brazilians looking for casinos as international travel destinations, it generates a very important tax revenue that in no way burdens the population, among other arguments. I do not know of a successful result, from a social, economic, and public health point of view, among those countries that have chosen to prohibit the exploitation of bets in the different gaming modalities; so I answer, that Brazil is prepared to legalize all types of gambling, and the way this should happen, it is already answered in several laws of countries where the market is mature and healthy.
Source: Luiz Carlos Prestes Filho – Executive diretor of Tribuna da Imprensa Livre newspaper
