Those who follow the sports betting market in Brazil know that the regulation of Law 13,756/2018 is pending. The two-year period extended for another two years expired last December, without the Federal Government having issued the decree with the rules to be followed by bookmakers that want to operate in the regular market in the country. In the period between December 2018 and the end of the previous government, 3 minutes were issued, without the regulation being implemented.
The issue for the new federal government does not seem to be a priority. In the program of the winning list of the presidential election there is no mention of the need for regulation of sports betting. The document entitled “Guidelines for the program for the reconstruction and transformation of Brazil”, in the chapter dealing with the economy, there is no line on this topic.
Decree 11,344/2023, which instituted the new Ministry of Finance, assigns competence to the Secretariat for Economic Reforms and the Undersecretariat for Regulation and Competition to “act in the regulation, authorization, standardization and inspection of the segments of free distribution of prizes by way of advertising , early collection of popular savings and lotteries, including sweepstakes and other types of lotteries carried out by entities that promote horse racing.”
Despite not specifically mentioning sports betting, it is possible that these are the bodies designated to take care of future regulation, especially since a position of General Coordinator of Betting has been created within the structure of the Undersecretariat, still without appointment.
With the change of government, it is speculated that all the work done so far in consulting the market, studies, drafting the drafts will be put aside and the process will restart practically from scratch. This scenario is terrible for players who have been waiting for regulation for almost five years.
It does not hurt to remember that the regulation of sports betting will bring greater legal certainty and benefits from multiple aspects, whether in terms of stipulating parameters for sponsorships, transparency in tax collection, expansion of job creation and effective mechanisms to reduce the fight against crimes, in particular the manipulation of results, it should be noted that bookmakers are the most interested in the annihilation of match fixing.
Faced with the past scenario of lack of regulation, and the current indifference to the sports betting market, it is worth analyzing whether it is possible for bookmakers to adopt legal measures that aim to overcome the government's omission with the desideratum of, once and for all, operate regularly in the country.
There is a constitutional remedy that is very little used in Brazil called a writ of injunction, which serves to remedy the omission of the legislative or executive power in the enactment of laws or regulations that prevent the regular exercise of a constitutionally guaranteed right. The Federal Supreme Court, for example, granted this remedy to guarantee federal civil servants the right to strike (MI 914 – STF), which was provided for in the Constitution, but was never regulated.
In theory, any company that intends to explore the activity of sports betting in Brazil would have the legitimacy to file a writ of injunction before the STF to see its right guaranteed due to the omission of the federal executive power. It so happens that the main requirement for the admission of this remedy is that the right whose exercise is being impeded has a constitutional seat. This means that, in order to be viable, the writ of injunction must attack the failure of the public power to regulate a right that is expressly provided for in the Federal Constitution. This is not the case with the sports betting activity, unfortunately. The right to exploit the activity is provided for in ordinary law, not in the Constitution.
In view of the infeasibility of the writ of injunction, the possibility of companies filing ordinary actions, with requests for an injunction, to guarantee their right to exploit the activity due to the omission of the executive branch to regulate the bets, is being considered.
The Superior Court of Justice and the Federal Supreme Court also have, unfortunately, firm jurisprudence in the sense that the legal norms of limited effectiveness, that is, those that depend on regulation, are not suitable for immediate application, with the judiciary being prevented from making replace the executive power in defining rules for its full effectiveness. The regulatory requirement contained in the Laws, in the understanding of these courts, serve as a suspensive condition to the exercise of the right provided therein. The separation between the legislative, judicial and executive powers would be the insurmountable obstacle.
Who intends to operate in the betting market in a legal and regular way, is in a scenario that is not very encouraging. On the one hand, the executive branch, which does not demonstrate that the regulation of the activity provided for in Law 13,756/2018 is a priority, on the other hand, the judiciary, which has a secure position in the sense that laws that depend on regulation cannot be applied until it survives the necessary regulatory act of the executive power.
We have to wait.
Luciano Andrade Pinheiro
Master in Intellectual Property and Technology Transfer from UNB; President of the OAB/DF Sports Law Commission; partner lawyer at Corrêa da Veiga Advogados
Mauricio de Figueiredo Correa da Veiga
Master and doctoral student in Legal Sciences at the Autonomous University of Lisbon (UAL); chairman of the IAB Sports Law Commission; professor of Master Diritto and Sport at the Sapienza University of Rome; founding member of the National Academy of Sports Law; lawyer registered with the Brazilian Bar Association and the Portuguese Bar Association; former Legal Director of Club de Regatas Vasco da Gama; author of 8 books; partner at Corrêa da Veiga Advogados.
