Bill 442/91, which aims to establish the regulatory framework for gaming, had its consideration concluded by the plenary of the Chamber of Deputies, on February 24, 2022. Now, it will be analyzed by the Federal Senate, with no deadline or expectation for the conclusion of the legislative process.
For the industry that, for more than 30 years, has been waiting for a favorable government position for exploration in Brazilian territory, this is an important moment and an eventual approval of the agenda by the two legislative houses could represent a great advance in the subject.
Despite the optimistic scenario, it is necessary to analyze the situation realistically. Could it be that what is being released is really the exploitation of any and all gamng modality in Brazil? In our view, no, by this single legislative path of bill 442/91.
The regulatory framework for gaming, as the aforementioned bill became known, does not cover all types of games in its spectrum, correctly. It is, in fact, a regulatory framework only for gambling.
Theoretically, there are two types of games: games of chance and games of skill. In very general terms, the former are those whose result is predominantly or exclusively based on luck, while in the latter the player's skill, knowledge and analytical capacity of historical data of results prevail.
Gambling is legally defined in art. 50 of Decree Law 3688/41 (Criminal Misdemeanors Law) which, in its §3, defines the game of chance as being one in which: (a) the gain and loss depend exclusively or mainly on luck; (b) unauthorized or off-track horse racing betting; and (c) bets on any other sporting competition. Given the outdated regulation, written in the 1940s, we surpassed point "c" when allowing fixed-odds bets, which are nothing more than sports betting, in 2018. Thus, the most important definition is found in item "a".
On the other hand, skill games are those in which expertise, strategy, knowledge, dexterity, experience, among other skills, define the outcome of the game, although there may be some influence of luck, which is not decisive in defining the outcome.
The substituting subamendment to Bill 442/91 addresses an interesting definition of games of chance, such as: "class or type of game in which the outcome is determined exclusively or predominantly by the outcome of a random future event defined in the rules system." Reinforcing that this is a regulation only for games focused on luck, the list of game modalities that is now allowed is completely geared to luck, namely: casino games, bingo, video bingo, online games, jogo do bicho and horse Racing bets. Therefore, any game of skill is left out.
It is also important to note that all these games of chance have a similar methodology in the relationship between the player and the operator: one always wins when the other loses, that is, it is as if they were playing against each other and the financial result will be credited to either the player or the operator. This is a characteristic present in games of chance, but not in games of skill. In this type of game, the operator is a mere administrator of the competition, who earns for the service he performs, the organization and coordination of the competition. The amounts paid by the players are reversed for their own benefit, not staying with the operator. The winner of the tournament keeps the resources of the other players who are defeated in the match.
With regard to games of skill, the legislator includes the definition in the approved text, but withdrawing the applicability of the regulatory framework for games of chance to this other type. Mental skill games are defined as "games in which the outcome is mainly or mainly determined by the mental abilities of the participant, such as dexterity, expertise, intelligence, training and mastery of knowledge, even if there are non-prevailing random events." It will be up to the Ministry of Economy, within 90 days from the publication of the new law, to regulate mental skill games.
All these points clearly differentiate the configuration of the two types of games. Given the differences in conceptualization, it is also important to keep in mind the need for differentiation when regulating activities, taking into account their peculiarities and repercussions in the social and economic world.
At one point, at the end of last year, skill games were included in one of the legislative texts (substitutes) presented to Bill 442/91. However, in a coherent and adequate way, they were removed so that only gambling could be maintained, an exclusion that was rightly maintained in the following versions under discussion. As stated above, in the version approved by the plenary of the Chamber of Deputies last month, it is clear that the Framework does not apply to skill games, which will be in charge of the Ministry of Economy for its regulation.
This segregation made by the legislator is correct and quite relevant, especially when we observe the experience of other countries, which have more mature markets in relation to games. As a rule, the rules aimed at gambling are much more restrictive and the requirements higher due to the social impact that such activities bring, such as ludopathy, for example.
It is worth adding that the exploration of certain modalities of skill games has been accepted in the national territory for many years, precisely because of their low social impact, since by their nature they test each player's skills and knowledge, which consequently leads to less restrictive. Therefore, the way to regulate games of skill cannot be the same as for games of chance.
These are different activities that require different treatment. Placing them in the same regulations only generates inadequacies, with the risk of giving a more severe treatment to a game of skill or applying requirements that are too lenient for games of chance. For this reason, the government and the legislature have taken a correct stance in deciding to address the issues (games of chance and games of skill) in different normative vehicles.
It is essential that there is a clear differentiation between the regulations that will apply to each of the types of games, both in terms of restrictions and competences, as well as in relation to the existence of differentiated taxation. The regulations have to bring a balance between what is considered reasonable and what can cause social distortions, between what is already considered legal (skill games), and what is discussed its legalization (games of chance).
The intention to move forward with the legalization of gambling in the country is commendable, since the prohibitive norm is disconnected from the current social reality, causes Brazil to lose revenue, stop generating jobs and even encourage organized crime. But one cannot ignore the importance of properly regulating and with due discrimination, skill games, which despite already generating direct and indirect jobs and revenue for the Public Power, see the growth of the industry unduly repressed due to lack of clear and reasonable guidelines.
Rafael Marchetti Marcondes
Lawyer and head of legal of Rei do Pitaco. Doctor and Master in Tax Law, Master in Sports Management from ISDE/FC Barcelona.
Bárbara Teles
Lawyer of Rei do Pitaco, postgraduate in Law and Government Relations.
Source: Migalhas
