GMB - The Supreme Court will decide whether a ban on gambling is compatible with the Constitution in Brazil. What is your legal point of view on this issue?
Clícia Calmon - Initially, it is worth mentioning that on April 7, 2021, the Supreme Court (STF) did not consider Extraordinary Appeal No. 966177, filed by the Public Ministry of Rio Grande do Sul, an organ that is contrary to the understanding contained in the Judgment of the Special Criminal Court Appeals of this same state. Thus, the STF will rule for a future date, which still does not know the judgment of this RE 966177.
In our view, we have to keep in mind that this Decree-Law No. 3,688 is from the year 1941 and we are in the year 2021, since then nothing more and no less than 80 years have passed. It needs to follow the evolutionary behavior with society and this judgment in the STF will involve General Repercussion, being an opportunity of article 50, “caput” of this Decree-Law to update itself and go “hand in hand” with the constitutional articles mentioned above. Therefore, deconstructing this outdated and archaic figure of criminal misdemeanor for exploiting or practicing gambling contained in the article of the Decree-Law above.
Do you believe that if the Supreme Court judges that there is no misdemeanor, it would shorten the way for the legalization of gaming in Brazil? Why?
We have no doubts whatsoever that from the moment the Supreme Court decides in the context of General Repercussion for the non-criminal contravention of conduct described in the “caput” of article 50, of Decree-Law nº 3,688 / 1941 and that this one will not confront the Federal Constitution / 88, in its art. 1st “caput” and art. 170, thus not generating a possible unconstitutionality of these, this will be a determining factor for the legalization of this type of activity in Brazil.
Why? Because a very important pillar is built for our Parliament to discuss and approve, some of the various projects in progress. The legalization of gaming will bring positive benefits to Brazil, as it will generate billions in taxation for the Union, States and Municipalities, which may be destined to precious social programs that are lack of resources, such as health, education, and housing. In addition to help developing tourism in Brazil, providing direct and indirect jobs in general, our economy can only win it.
Despite being under discussion in the political arena for years, the gaming sector has not yet been legalized. What do you think Brazil needs to finally unite with developed countries and regularize this activity?
Look, at first, the initial path would in fact be a favorable decision of the STF in the records of RE 966177, in order to declare that there is no need to talk about a criminal offense, typified in article 50, “caput”, Decree-Law nº 3,688 / 1941. And secondly, that our Parliament will have good will and awareness mainly that this regularization of the activity will only bring countless positive benefits to Brazil, as it is in other countries much more developed than ours. It is a question of simple reasoning that they should do, such as: 'Why have other countries regularized gaming and are developed in all economic and social aspects? Why do we in Brazil, a country that has enormous potential for growth, have a parliamentary bench resistant to this type of regularization and consequent development?'
Do you attend exhibitions (in person or online) about this industry? What is the importance of events like these taking place in Brazil, a country that has not yet decriminalized a good part of the gaming sector?
I attend whenever possible, but I always read articles from this fantastic gaming industry to understand not only the legal aspects, but, above all, the management gear, the implementation, everything that concerns the operational part itself. I think this is of paramount importance, even in order to be able to apply the law with property.
At first, bringing this type of event to Brazil would be a positive initial slap, but it would have to be exclusively for the sports betting industry, since Law No. 13,756 / 2018, is sanctioned and legalizes this type of activity.
The regulation of sports betting has been promised for some time. According to what you have seen about the project, what do you think SECAP could modify / exclude / include to make licenses attractive and fair for small and large business owners?
SECAP (Secretariat of Evaluation, Planning, Energy and Lottery) has acted with great caution, as it had the initiative to hold Public Consultations, precisely in the desire to know all the necessary improvements to be included in this Decree, which will pass through the sieve of our Parliament.
Based on the last draft Decree made available in February / 2020, in our view, it needs to be modified in the following points: a) regarding the question of taxation, as it is highly excessive for both the Operator and the Gambler. In this tax balance only the State is winning, that is, the balance of tax sharing between the Parties is not fair, the measures are not the same, or even approximate, especially for the Operator who needs to pay a high infrastructure investment and meet all requirements to maintain its operation in accordance with what was imposed on it during the Competition Bidding Process; b) The inclusion of a minimum amount established, according to the size of the Operator (small, medium and large entrepreneurs), as their own financial reserve, in order to ensure the payment of the prizes, avoiding a default with the Bettors, to famous “bank break”; c) It would include the taxation of compliance with the control of personal data of the Gamblers, in compliance with Law No. 13.709 / 2019 (LGPD - General Law for the Protection of Personal Data), as well as that the Operator requires when registering the Gambler in its data base, copy or digitalization of this (if the registration is online) an identity document for the purpose of proving the age of the bettor; d) It needs to clarify several dubious points existing in Law No. 13,756 / 2018, which bring enormous legal uncertainty for this industry to be explored in Brazil. In this way, SECAP needs to draw exactly the role of each “character” within the exploration as comprehensively as possible, so that there is no room for doubt about who is who, and who can act and how they should do it.
The issue of state lotteries has been hotly debated recently. What are the advantages for the citizen and for the State to open new state lotteries in the country?
We have to keep in mind that the state lottery is also a public service provision. This provision of services generates advantages for both the citizen as a Gambler, as he has greater betting options, seeing a greater probability of a hit / win, as well as for the State there are also positive points, since a range is opened greater generation of income to be destined for the citizen himself. Therefore, the greater the number of new state lotteries opened in each Federated entity, the better for it and consequently better for its citizen.
How do you see the future of the gaming sector in Brazil? Do you imagine that, in legal terms, it is promising?
Very promising! It is a fantastic and passionate industry. The biggest example of a game that until then was seen as a game of chance, which in fact was a big mistake made by many in the legal field, as it is exclusively a game of the mind, is POKER. And look how much the game of Poker has grown in our country. We have several national championships of international repercussion, we have excellent companies that produce tables, tokens, among other products; we have excellent clubs, leagues, applications. And we will start to have this with the other games until then considered of chance, when of a positive decision of the STF in the judgment of the RE 966177.
Source: Exclusive GMB
