The legalization of gaming in Brazil needs to happen, unrestrictedly and quickly. It is a “non-issue” from our point of view, considering the subjectivity of the debate involved in rhetorical, random, moral, religious, sentimental arguments that have nothing to do with legal analysis.
The arguments against the release of gaming as a legal economic activity date back to 1946, when Decree-Law No. national law, under the justification that the activity is degrading to the human being.
Such “degradation to the human being” resulting from gambling, it is speculated, originated from the influence of the then First Lady, Dona Carmela Teles Leite Dutra, on her husband, motivated by her strong devotion to the Catholic Church.
Since 1946, therefore, the debate on the subject has not been rational, sometimes finding obstacles in religious, moral, ethical and any sort of convictions – less legal.
Our focus on the subject is legal and more specifically legal-constitutional and legal-criminal.
The “recitals” of Decree-law 9,215/1946 included the following: (a) repression of gambling is an imperative of universal conscience; (b) the penal legislation of all cultured peoples contains precepts for this purpose; (c) the moral, legal and religious tradition of the Brazilian people is against the practice and exploitation of games of chance; and (d) the exceptions made to the general law stem from harmful abuses to morals and good customs.
Since 1946, however, many legislative changes have taken place, especially the promulgation of the 1967 and 1988 Constitutions. In the Brazil of the 21st century and under the aegis of the 1988 Constitution, the reality of 1946 is quite different.
Of the 193 countries that make up the UN, only 37 prohibit the installation of casinos. Of these 37, Iran, Iraq, Afghanistan, Indonesia and Saudi Arabia stand out – all for religious reasons. Brazil, Cuba and Iceland are also part of this minority.
As for the 34 countries that make up the Organization for Economic Cooperation and Development (OECD), the so-called “rich club” of which, by the way, Brazil wants to be a part, only Iceland prohibits gambling on its territory. In the G-20, only Brazil, Saudi Arabia and Indonesia ban the activity.
We are, therefore, wasting time, revenue and job creation – direct and indirect.
Pierpaolo Cruz Bottini, in a recent article (from 2/25/2022) in O Globo, observes that countries that coexist with the exploitation of gaming implement recommendations, protocols and procedures that aim to prevent the practice of money laundering that may be associated with such activities. Creation and maintenance of customer records, monitoring of player activities, restrictions on operations outside the banking system, in addition to reporting to COAF in the event of suspicious operations.
On the other hand, not all games are games of chance properly speaking and on which there could be a legal impediment to their exploitation, such as those that are in force to this day (both by virtue of Decree-law nº 9.215/1946, as pursuant to article 50 of Decree-Law No. 3,688/1941, “Criminal Misdemeanors Law”).
Miguel Reale Junior, in a specific opinion on the subject presented at the request of the Brazilian Confederation of Texas Hold'em, stated this way about the nature of poker as a game of skill; and not as a game of chance:
“(…) Now, as I analyzed earlier, poker is a game of complexity and sophistication of knowledge similar or superior to chess or backgammon, depending even more than Pif – Paf or Caixeta on the skill, which consists of information about mathematical probabilities, knowledge of the rules and strategies of the game, psychological ability to understand the reactions of opponents, ability to hide their own cards and predict the cards of others.
Thus, poker cannot be recognized as a game of chance, for whose characterization it is essential that randomness predominates, to the point that skill is not even slightly inferior, but much inferior to the luck factor. On the contrary, as analyzed before, success in the game of poker, by the very nature of the game, largely depends on the player's skill, which is why the game of poker cannot be considered a game of chance, not making up the typicality of the established in art. 50 of the Criminal Misdemeanors Act in the case of exploitation of the game of poker. (…)” (I highlighted)
In turn, the 1988 Constitution brings a series of provisions that give shelter to the release of the exploitation of gaming by the private sector: article 170, item IV (free initiative and free competition); article 173 (prohibition of the exercise of economic activity by the State, except in the cases provided for by the Constitution itself and except in situations of national security and collective interest); article 177 (which lists the hypotheses of monopoly of economic activity by the State, not including gambling and betting).
Finally, article 195, III, of the Federal Constitution provides for taxation on “revenue from prediction contests”, that is, the federal lottery by drawing numbers, lotteries and bets.
The Constitution itself, therefore, authorizes the exploitation of games of chance by providing for taxation on revenue from prediction contests.
For what reason, then, such contests with numbers, lotteries and bets could not be exploited by the private sector, as pointed out by the guidelines of our Constitution in the sense of free initiative and free competition?
Concerns about the prevention of money laundering, as already mentioned, are important and necessary.
But, for that, a thorough regulation, internal and external controls, compliance mechanisms to be periodically reviewed, reporting channels, requirement that all transactions take place within the banking system and communication to COAF in the face of suspicion are measures that work well and that apply to the prevention of laundering in other sensitive sectors such as the national financial system itself.
We hope that the legalization of gaming and casinos in Brazil will be soon.
Marcelo Knopfelmacher
Criminal lawyer
Source: O Estado de S. Paulo
