Asked to express our opinion on the news published in the media about notifications from some football clubs and other entities, including Rede Globo, by SENACON, it is up to us, in this article, brief reflections that may be relevant, depending on the specific case.
Initially, it seems to us that such actions by public bodies, which starts with the notification of SENACON, cannot be received as a surprise by the market awaiting the regulation of fixed-odds sports betting in Brazil.
The National Consumer Secretariat - SENACON is a body that integrates the Ministry of Justice and Public Security, whose powers are delegated to it by Decree No. 7,738, of May 28, 2012 and has its attributions established in art. 106 of the Consumer Defense Code and in art. 3 of Decree No. 2.181/97.
It is not an accusation, but an act of regular inspection, by an agency with powers for this action and equipped with police power. The consequences of this inspection will depend, in each case, on the contractual regularity, contracted object, form of remuneration, location of the contract and other aspects dealt with between the parties.
Obviously, there is no prohibition for advertising sports betting sites in Brazil, as long as the rules provided for in the legal system are respected, which must be known by both the sponsor and the sponsored, subjecting them, in the case of possible distortions, to the legal sanctions.
But don't forget about the limits of hiring. Bearing in mind that in those commercial relations of sponsorship agreement, where the sponsored “team” participates in the financial results obtained in the capture of bets in Brazilian territory, we will be talking about a contract with an illicit object.
It is observed that, in light of current Brazilian legislation, “participating in gaming, even if via the internet or any other means of communication, as a pointer or gambler” and/or “paying a prize relative to a foreign lottery ticket” constitutes a criminal offense.
It is not unknown the fact that there is conceptual confusion regarding the term lottery, originating in the 1940s, and the current understanding of its real meaning, as well as that the objective of the legislator at the time of the edition of the aforementioned penal diplomas was to prohibit the exploitation of of gambling, whose concept suggests the existence of a prize resulting from a random draw, a circumstance that must be interpreted in light of Law 13.155/2015, which added to article 50 of the LCP.
However, the legal prohibition and incrimination of the conduct persist, reinforced by the very legislation that instituted the fixed odds model sports betting by requiring the “authorization or concession” from the Ministry of Finance (current ME) for the exercise of business activities, under the condition of "operator".
So that the operation in the sports betting market, after the legal regulation, but without the proper authorization of the competent Public Power, still attracts, and at the very least, for the international sites, the criminal classification provided for in article 46 of the Decree-Law No. 6,259/44.
Furthermore, if the regulation survives under the terms of the advisory draft published by the Ministry of Finance, companies that intend to obtain authorization to explore sports betting must declare that they have never operated illegally in regulated markets for the exploitation of lotteries and other systems for capturing bets with payment of prizes in cash (art. 12, item III, of the draft proposed by the Federal Government published on 02.18.2020).
The same (consultative) draft of the regulation of Law n. 13,756/2018 requires that the company wishing to explore the sports betting market in Brazil must prove that it is regularly incorporated under current Brazilian laws, with headquarters and administration in the country (art. 11 of the draft regulation of Law n. 13,756).
As the definitive regulation has not yet been published by the official body, the practice of exploiting sports betting in “Brazilian territory” is considered premature and illegal before such operation is authorized by the Ministry of Economy or body that succeeds it, thus attracting illegality to any advertising contracts with these operators.
But there are other circumstances that must be addressed in this brief study. We refer, in the lines below, to the limits of advertising analyzed in light of the rules of advertising regulation.
The promotion of sports betting products has already been analyzed by the National Council for Advertising Self-Regulation – CONAR.
Although Law no. 13,756/2018 brings the forecast that advertising must be guided by social responsibility and the promotion of responsible gambling awareness, aiming at collective security and the fight against illegal betting, said rule, with regard to the modality provided for in article 29 and following that law, is not regulated to allow the operation of such activity in national territory.
It is concluded, therefore, that any advertising must be carried out with extreme caution due to the imminent risk of penalizing the conduct by the national regulatory body (CONAR) and/or by the criminal legislation itself applied to the species.
It follows that football clubs cannot, for the time being, under any circumstances, without complying with the legal rules laid down in the Brazilian legal system, advertise the exploitation and/or promotion of products related to sports betting. So much so that the draft that will regulate the activity in Brazil provides that only people authorized to explore the market can carry out such advertising.
There is another point observed in the studies of the office staff, regarding the form of remuneration of the sponsored clubs.
Note that when it comes to “Payment for Participation”, as claimed by some contract proposals that came to our attention, it reveals, in those cases, the illicit object of the intended contract.
Our opinion on possible sponsorship contracts for football teams and other sports, in which the sponsor is an operator in the offshore market with brand placement, even though Law no. 13,756/2018 legalized the lottery modality of “fixed-odds betting”, is that the operator’s activities in the national (territory) market still depend on regulation by the Government.
In addition, even with the regulation, companies that wish to operate in this market will need to obtain authorization (or concession) and comply with the requirements that will be defined in the corresponding regulatory decree and other normative acts issued by Organs competent government bodies.
Thus, it is necessary that any contracts for this purpose - sponsorship of football teams and others - be guided by caution and leave no doubt that the effective exploitation of the modality will only take place after the regulation of the matter and authorization from the sponsor to operate in Brazil, so that the agreed clauses have legality, effectiveness and validity in the light of the Brazilian legal system.
It is important to bear in mind that the sports betting modality in Brazil is considered a lottery modality, which attracts the penal rules applied to the species and the public interest, as it is in the condition of public service and not of economic activity itself.
At the end of this brief article, the risk of being penalized by the advertising self-regulation body, namely CONAR, and also by the Public Prosecutor's Office, regarding the way in which the brand is advertised and the exploitation of sports betting due to the activity still not be regulated in Brazil.
This is our opinion for the situation, in theory and in light of today's applied legislation.
Brasil Fernandes Advogados Associados
Roberto Carvalho Brasil Fernandes
Daniel Fernandes
Alexandre Amaral Filho
Rafael Biasi
