Carlos Drummond de Andrade said: “No one is equal to anyone else, every human being is a unique stranger”. To paraphrase the writer and bring it into the context of fantasy sport, the situation is the same: fantasy is not the same as drawing, lottery or sports betting. It is a truly unique modality, with its singularities that make it unique, a “unique stranger”.
Confusions happen and are natural, after all, electronic games are a very recent reality, which brings new paradigms and complexities that not everyone has had the chance to understand yet. It is important to highlight that understanding is an essential step to form an opinion about it and that it must be taken for the proper feasibility of regulating the activity.
To those who still have doubts about the fantasy sport game, I will introduce it! We are talking about an online competition, where a group of people compete against each other in a specific league or competition. Each competitor scales their virtual team of professional athletes, with the possibility of mixing players from different teams, only having to observe a ceiling of expenses previously established by the organizer.
Each lineup generates the gain or loss of points from statistics obtained in a real game, such as goals, defenses, passes, among others. The competitor earns or loses points based on the players' statistical performance in real-world competitions. If the player scores a goal, the competitor earns five points in his favor. If the professional athlete makes a correct pass to the goal, the competitor will score three more points in the virtual environment. On the other hand, if the real player misses a penalty, the competitor will lose four points, and if he is yellow carded, he will lose another two points, and so on. The criteria and scores assigned to each action are previously defined by the company organizing the competition, and are known to all users before the start of the tournament.
In our country, fantasy focuses on football, but in other more consolidated markets, such as the North American one, there are also basketball, American football, baseball, hockey, volleyball and motor racing.
In the fantasy category, there are two best-known modalities: the one played by season - season long or long shot -, in which users compete with each other during an entire sports season, and the daily fantasy modality (daily fantasy), with short shot performed in a week or a single day of competition. Here in the country, currently, the Rei do Pitaco is the main representative of this category.
But how to differentiate fantasy from lotteries? The Criminal Misdemeanors Law (Decree-Law 3.688/1941), in its article 50, prohibits in Brazil the performance of so-called games of chance, which are those whose gain and loss depend exclusively or mainly on luck, except when exploited by the Federal Government, or with its authorization. Fantasy is a legal activity, precisely because it is not characterized as a game of chance, but a game of skill, as explained above.
Fantasy resembles chess, snooker, eSports and poker: games in which the results are determined by the performance of the competitors. Prizes are distributed based on each individual's performance. Whereas in games of chance, people do not have any influence on the outcome and can be awarded, as in the lottery. Article 40, sole paragraph, of Decree-Law 6,259/1944, provides that “a lottery is considered to be any operation, game or bet to obtain a prize in money or in goods of another nature, through the placement of tickets, lists, coupons, vouchers, papers, manuscripts, signs, symbols, or any other means of distributing numbers and assigning players or bettors.”
The definition, although old, brings three important elements for reflection. The first of them concerns the fact that fantasy sports are games in which the result is mostly based on the skill of the competitors. The second characteristic feature is that the typical activity of a fantasy does not involve the “placement of tickets, lists, coupons, vouchers, papers, manuscripts, signs or symbols.” Players sign up to a program or app to participate in a competition involving fictional teams made up of real athletes that are cast by users. The third – and last element – is that, traditionally, this category of games does not use a “means of distributing numbers” for an eventual draw.
Truth be told, some fantasy games have incorporated sweepstakes into their activities. Whenever this happens, as with the Cartola FC model, you will be facing a lottery event, which requires prior authorization from the Ministry of Economy to be operated. The Cartola FC Operating Regulations – unlike traditional fantasy ones – establish the granting to each of the participants of “lucky numbers”, distributed randomly and equitably, evidencing its atypical nature of drawing, in which risk is the main factor to define the success or failure of each player.
This whole discussion about fantasy doesn't just reverberate among football lovers and experts. It arrives to move a high potential market, but still dormant. We seek, here, to clarify some interpretative noises about this activity so that it can take an important step towards the necessary regulation.
Finally, the State needs to pay attention to everyone, even when we are faced with a “unique stranger”, since fantasy, despite still being misunderstood by many, already represents a billion-dollar industry in the world and that points to Brazil as an emerging market for high financial potential.
Rafael Marchetti Marcondes
Chief Legal Officer of Rei do Pitaco, professor of Sports and Tax Law. Doctor and Master in Tax Law from PUC/SP. Master in Sports Management from ISDE/FC Barcelona. Specialist in Tax Law from FGV/SP. Bachelor of Laws from PUC/SP. Member of the Brazilian Institute of Sports Law (IBDD). Lawyer in São Paulo.
