Since 2018 began to multiply in the country sports betting stalls that offer their services by applications and websites on the internet. The business model is relatively simple: the user tries to guess the outcome of football matches and bets money on their guesses. The promise is, by hitting the scores, that the bettor receives pre-defined values. The matches of the 2022 World Cup will certainly be an unmissable attraction for the fans to be moved beyond the four lines of the lawn.
The model must, however, offer legal certainty so that this nascent market is well received in Brazil. To understand the legal structure of the theme, an initial distinction must be made. The offer of free prizes, that is, without direct financial contribution of the eventual awardee, is governed by Law 5.768/1971, which, with the changes promoted by Provisional Measure 923/2020, extended the possibility of exploitation of the activity to open TV broadcasters. This modality concerns the prizes that aims to advertise to the entity that promotes the action, and may be in the form of gift vouchers, raffle, contest or other similar operation. The prize cannot be converted into cash and the formation of a structure similar to bingo and gambling is prohibited.
On the other hand, there is the distribution of prizes explored in the form of lotteries, which receives treatment in Law 13.756/2018 and in the Caixa Circular 999/2022. These rules are listed: (i) the federal lottery, in which the bettor purchases a physical or virtual ticket already numbered; (ii) the lottery of numerical prognosis, in which the bettor predicts the numbers drawn; (iii) the specific prognostic lottery (Timemania), in which the bettor must indicate numbers and a team of his/her preference; (iv) the lottery of sports prognostications, focused on predicting the results of sporting events and, finally, the (v) exclusive instant lottery, which immediately reveals whether or not the bettor has received any prizes.
The aforementioned Federal Law also creates a lottery mode, the fixed-quota betting lottery, in which the customer, at the time of the bet, already knows how much he can win if he corrects the prognosis about a real sporting event. The modality is exploited in a competitive form by physical or virtual means, but it does not yet have regulation. It is in this category that the virtual sports betting stands fall within the category.
Despite the regulatory incompleteness, the newly opened market moved more than R$ 12 billion (US$ 2.3b) in Brazil in 2020, according to a survey by H2 Gambling Capital, in addition to the growing presence of bookmakers in the sponsorship of several clubs in the first division of national football. The public's expressive adherence to this lottery modality and the large sums moved spark the debate regarding the regulation of this market, in order to protect the interests of players and the sustainability of the businesses.
With regard to legislative regulation, it should be noted that the Union is exclusively responsible for enacting laws on consortia and draws (art. 22, XX, CRFB/88), which is why the minimum regulation for the exploration of the activity was given in federal law, which, in turn, enables the authorization or concession to the private sector.
A window of opportunity is approaching for this market. With the Qatar World Cup, there is the expectation of an even more intensive use of bookmakers, and, consequently, greater financial movement and exposure to possible risks. The role of the government, according to legal and constitutional commands, is to ensure the integrity of the market in favor of the security of popular savings and investments of individuals, supporting the growth of activity.
In the performance of this function, the Ministry of Economy issued Ordinance SEAE/ME 7.638/2022, which consolidates the rules for the free distribution of prizes, disciplined by Law 5.768/1971. The regulation is concerned with ensuring the sustainability of the activity and the protection of the citizen by requiring proof of elements such as profit margin, sales and revenue projection and cost decomposition, so that authorization is granted for its offer to the public.
Brazilian fans will cheer for the sixth cup, but it gains an extra pinch of excitement in the context of sports betting and the regulator has possession of the ball in this discussion: fixed quota bets have not been reached by the aforementioned ordinance of the Ministry of Economy and the deadline for regulation is ending. Article 29, § 3 of Law 13.753/2018 provides that the Union has a period of two years, extendable by two more, to regulate fixed quota bets.
It is fundamental that the regulator makes use of instruments that perceive the growth capacity of this market if well regulated, which even contributes to the dissipation of the insecurity that hangs over these activities that, for many, still carry some pejorative moral burden. It is worth remembering that part of the income obtained from the exploitation of this lottery modality is directed to the National Public Security Fund, contributing to structuring national actions in this area.
Regular sports betting is a goal for society as a whole: the bettor wins, who will enjoy a safer market free of opportunistic agents; bookmakers win, with legal security for their investments; and the community wins, with the proceeds from this activity being invested in improving security services. There is no denying that there are plenty of reasons to cheer for the sixth World Cup, but the big news of this Cup is the support for the federal regulator in view of the proximity of the games. It remains to be seen whether a great goal is coming or if it will hit the post.
CARINA DE CASTRO QUIRINO
Undersecretary of Regulation and Business Environment of the Municipal Secretariat for Economic Development, Innovation and Simplification (SMDEIS). PhD in Public Law from UERJ. Lawyer
FELIPE PEREIRA DOS SANTOS
Legal advisor to SMDEIS and lawyer
RAPHAEL VIOLA
Attorney of the State University of Rio de Janeiro. PhD in Law from the University of Lisbon
RACHEL MILITO
Legal advisor to SMDEIS and lawyer
Source: JOTA
