Since the 1940s, Brazilians have been faced with a situation of doubt regarding gambling, mainly due to the incongruity of the State being free to manage millions in bets. Nowadays, the participation of poker in this discussion has grown, which is relatively outdated today. However, possibly the emergence of several online betting sites, aimed at the most popular sports in the countries, is the current challenge for legal operators.
Recent federal legislation has been widely welcomed by those who have embraced digital betting, and there is hope that the federal government will "liberate" the modality widely. Adherence is wide, including by eSports enthusiasts.
We don't understand it that way.
Indeed, we perceive an overwhelming flood of sites that allow Brazilians, as well as people of other nationalities, to bet on the results of games, from the popular football, "American" football, rugby, baseball, basketball and more. But the question remains: Is it lawful to enter into betting contracts in Brazil.
The answer is positive! The fact of betting itself is not prohibited by law, which, according to the principle of legality (Article 5 of the 1988 Constitution) allows Brazilians to place bets.
The problem lies, however, in the most beneficial part of the deal, that is, in receiving the value of the prize in case of winning, as there is an express legal prohibition regarding the judicial collection of values of bets. Article 814 of the Civil Code in force says: "Debts for gambling or betting do not require payment."
In other words, there would be no ‘Eficácia nos planos Ponteanos’, as it is seen that such deals can exist and are valid, behold, the debt can be licitly received, which, in this case, could not be repeated, according to the final part of the same article 814 : "but the amount, which was voluntarily paid, cannot be recovered, unless it was won by fraud, or if the loser is a minor or prohibited."
It is necessary to mention that it is not lawful to "establish or exploit" gambling in Brazil, as it is prohibited by the Criminal Misdemeanors Law (Decree-Law 3.688/1941).
In line with this, "games of chance" were defined as those that fit into §33 of article 50 of the aforementioned rule on misdemeanors, namely: "a) the game in which the gain and loss depend exclusively or mainly on luck; b ) bets on horse racing outside a racetrack or place where they are authorized; c) bets on any other sporting competition".
Some have argued that the modification of the "allocation of lottery resources" would have tacitly revoked the concept of gambling, which, in turn, would validate the exploitation of betting sites in Brazilian territory, an understanding of which we do not share.
In summary, they base this understanding on the fact that there is a lottery modality that includes sports predictions, which would include any sport and also electronic sports (eSport).
The current wording includes the lottery, therefore, "IV - sports prediction lottery: lottery in which the bettor tries to predict the outcome of sporting events;"
However, the reading is wrong in the sense of tacit revocation, because in Brazil it has always been held that the authorized Lottery, managed by the Public Power, is an exception to the rule of criminal misdemeanors, even if it is a hypothesis of "game of chance", as it is the Federal Lottery. The Supreme Court even had the opportunity to quickly address the issue of "antinomy", in the words of the most excellent minister Marco Aurélio Mello (CR 9970/EU): "The antinomy, in the hypothesis, is flagrant: the prohibition of the past contrasts with the habituality of the games sponsored by the Public Administration."
That is, there is no release or legalization of the exploitation of betting through Law 13.756/2021, in the aforementioned article 14, §1. What the legislator did, as a matter of fact, was to exempt the Federal Lottery from the possibility of creating a licit bet in the field of sports, which it is agreed that eSports enter, undoubtedly in the latter. Thus, it is possible that the State Lottery will take place, but not a private esports bettings.
Having overcome the issue, betting sites remain in the gray zone, as mentioned above, it is possible for Brazilians to play against chance there, but which could not exist in the national territory.
The maneuver used for the existence of such sites and applications is to exist outside the national territory, that is, they escape the application of the Criminal Misdemeanors Law by establishing, or rather, establishing their "servers" in countries that legalize the practice of betting. Such a move is not illegal, but it can hurt the morale of some.
Therefore, the Brazilian bettor, when placing a bet on these "foreign" sites, contracts with those in the form of foreign law, and not Brazilian law, and would be bound to the conditions of the site's server location.
The situation, therefore, is somewhat complex: Brazilians, from within the territory, bet and contract with a foreign site, which has servers in other countries, in which the exploitation of games of chance is legal, and the law of the country dictates legality rules for each type of bet.
So, if you win, and the prize is not paid, would it be possible to collect debt constituted by the contract that would be illegal if entered into in Brazil? We also understand that yes, but not in all situations.
This is because the Superior Court of Justice has a relatively recent understanding of the possibility of collecting gambling debt, but only if it has taken place abroad and in compliance with local law. The understanding is reported by Minister Villas Boas Cueva (Resp 1,628,974 — SP) and is based on the Law of Introduction to the Norms of Brazilian Law (Lindb).
The solution in that case was interesting and was based on the fact that in the state of Nevada, where the betting debt came from, it is fully lawful to collect it, since the bet itself was lawful. However, it is necessary to prove effectively that the bettor is a winner (or loser, in the specific case) and to allow the evidentiary delay in the discussion, in order to avoid unlawful enrichment of the creditor.
Conversely, according to the current understanding of the Court of Citizenship, if the bet is made in a territory where it is not originally allowed, foreign law could not be invoked to collect it and, equally, it would be impossible to collect it judicially in Brazil, since would defy the customs and public order of both countries.
Therefore, some precautions must be taken if you want to attempt a game of chance in a foreign country, such as, for example, 1) verifying whether it is legal to gamble in the place; 2) verify if the legality of the bet covers the event or game intended; 3) investigate if the site is reliable and pays too many earners; 4) whether it is possible to visualize good faith and fairness in operations; 5) check if there is a history of winners who had to go to court, among others.
Be careful, because the reverse way is true, that is, the gambler can be charged the amount that he does not pay for the lost bet, respecting the same premises above. In any case, the legal costs, and possibly the professional ones, would be greater than a "ordinary" collection case.
In view of the voluminous demand, we may be at the end of an era, in which society no longer understands as a "violation" of good customs and morals the fact of betting, whether on a game of chance or on your favorite team, either by sport or by statistical and probabilistic calculation, it is up to Congress to modify and allow this practice on national soil, if it is the real sovereign will of Brazilian society.
Marcelo Dias Freitas Oliveira
Business lawyer, referee, postgraduate in Civil Law, specialist in Public Policies and External Control and in Tax Law and partner at Batalha & Oliveira.
