The existence of bets in Brazilian territory is nothing new. Quite the opposite. The common citizen carries with him an appreciation for the paths that luck can lead him, reserving whenever possible time to carry out his “faith” in the most diverse kinds of bets (in essence).
The social adequacy of the conduct is such that, aware of the common sense that involves such activity, the Federal Government itself explores it through drawings carried out by Caixa Econômica Federal.
In summary, betting, drawings, and games are interconnected activities, sometimes one is the object of the other; sometimes the other stands as an object, but the fact is that they all make up a genre that seeks to obtain a prize from the competitor's disbursement.
With the advent of the phenomenon of globalization and the widespread use of the internet for economic purposes, the so-called “betting houses” abandoned their original format aimed at spreading the infamous “jogo do bicho”, to enter the world wide web from modern and visually attractive platforms to the player who intends to put their faith in luck, as is the example of what they can also do, in a lawful manner, in the lotteries managed by Caixa Econômica Federal.
In this context, what is currently observed is that the so-called bookmakers offer betting services, drawings and games through virtual platforms hosted in foreign territory with free access for bettors residing in Brazilian territory.
That is, the company providing the gaming and betting service does not stay in the national territory, but in practice, it offers its services to the Brazilian consumer, meaning that, from the business, the Brazilian State does not have jurisdiction to judge the activity to be lawful or unlawful.
A portrait of the insertion of these companies in the national territory is the frequent placement of advertising in their favor in the context of football championships, including on the national television network, with an estimate that at least 15 teams that competed in the A Series of the Championship 2020, have some type of commercial partnership with these companies.
This practice leads us to reflect on the automatic criminalization that is intended to be conferred on such activities in Brazilian territory, even though they are currently in a legal vacuum, where there are no rules that allow for the exact conclusion of whether such a practice is lawful or do not.
A portrait of what is being said is the pending judgment of Extraordinary Appeal no. 966.177/RS within the scope of the Federal Supreme Court, which will decide whether the criminalization of the exploitation of games of chance, as a criminal offense, was approved by the Federal Constitution of 1988.
The closest legal framework on the subject is Law 13.756/2018, sanctioned by the Federal Government, which authorizes the Ministry of Finance to draw up rules for the licensing of fixed-odd sports betting in Brazilian territory; however, the regulation of said law is pending because the Ministry of Finance has a period of two years (extendable for another two) to regulate the betting system.
Among the consequences of the legal limbo of these practices is the non-taxation of the activity of exploring games and betting, even though these are visibly inserted in the common environment. Headquartered in foreign territory, the so-called "Betting Houses" have no tax liability with the Union, States and Municipalities, even though their income may come, even in part, from financial injections made by the Brazilian bettor.
For the discussion brought here, it is worth noting that it is estimated that, only in 2020, the Brazilian bettor has moved in favor of these companies an approximate amount of R$8 billion, an amount that per se , reveals the problem that the criminalization of conduct in Brazilian territory, although socially accepted, brings to the federal entity's collection possibility.
Therefore, the title of this text begins with "the loss of a chance", making an analogy to the institute of Civil Law and that intended that the Brazilian State loses a valuable chance by not regulating, as well as decriminalizing, an activity that is socially accepted in Brazilian territory and exploited through maneuvers that generate significant damage to the State's tax collection capacity.
It is important to point out as an example the case of Colombia which, in 2016, legalized and regulated the practice, making the country a model of example in Latin America involving the theme in relation to commercial issues, integrity of the game and collection for the State.
It is concluded in these brief lines the need for the Brazilian State to turn its eyes to the regulation of such practices, especially with regard to the possibility of collection arising from bets, which will evidently lead to positive results for the country as a whole, this in several perspective.
Artur Barros Freitas Osti
Criminal lawyer. Postgraduate degree in Economic Criminal Law from the Brazilian Institute of Criminal Sciences (IBCCRIM), in partnership with the University of Coimbra. Bachelor of Law from the Pontifical Catholic University of Paraná (PUC-PR).
Leonardo do Prado Gama
Civil lawyer. Master's in Law at the Federal University of Mato Grosso (PPGD/UFMT). Postgraduate in Civil Procedural Law from the Superior School Foundation of the Public Ministry of Mato Grosso. Bachelor of Laws from the University of the State of Mato Grosso (UNEMAT).
