One of Brazil's biggest problems is denying facts. It can be said that we spend a lot of time regretting what happened, trying to change the fact or even discussing the reason for its occurrence. In fact, we should discuss the solution.
I remember when a dear friend and university professor managed to summarize my thoughts in a single sentence at an event where the outsourcing law at the time was being debated in the National Congress.
On that occasion, several of the demonstrations spent much of their time criticizing outsourcing and referring to how devastating this “form of work” would be for the population. The phrase by my dear friend at the beginning of his speech said more or less the following: “Outsourcing is a fact and against facts there are no arguments, let's discuss how to improve the consequences of this fact through regulation.”
Currently, there are several situations in which this reality is replicated. An example is Gaming Law. There are many criticisms regarding the topic, from gambling to the possibility of money laundering. The point that everyone forgets is: the existence of sports betting is a fact. Technological evolution ensures that even if prohibited or unregulated, they happen.
In 2018, the legislator finally recognized the fact and published Law 13,756. This provided for the National Public Security Fund (FNSP), the allocation of proceeds from lottery collections and commercial promotion and the lottery modality called “fixed-odd bets”. On the same occasion, a period of two years was established, extendable for another two years for the regulation, which did not happen.
Some bills are being discussed in the National Congress, but on July 24th of this year the President of the Republic chose to promulgate Provisional Measure (PM) 1,182/2023.
The simple publication of the topic through a Provisional Measure already brings up an old discussion: is there relevance and urgency to deal with the case? The answer seems simple and deserves the following reflections: would there be urgency in a topic that has been discussed for so long in the National Congress and has no answer? Furthermore, is it up to the head of the Executive to interfere and legislate through a provisional measure in the face of the legislative inertia?
The discussion of the topic does not deserve a great loss of energy, since the STF – the one that is ultimately right or wrong in constitutional matters – has a position on the topic: the decision on the existence of relevance and urgency is not the responsibility of the Supreme Court, but rather the President of the Republic himself.
In general, what can be highlighted is the symbolic impact of the legislation movement: the government is giving attention and priority to the issue.
It is inferred, therefore, that regardless of personal or ideological opinions, those in government recognized that the world of betting/iGaming is a fact. This fact encompasses the recognition that the decision on the possibility of playing is no longer up to the State. The main reason is not ideological or the result of principles linked to freedom, but rather a much stronger factor. Globalization and technology often prevent the State from making a decision that is enforceable. In other words, the option for illegality would not prevent gaming and would also result in something much more serious: the discredit of state force.
The promise is that Bill 3626/23 will finally be approved in the Senate this week. At a sector event - MiS Mercosul iGaming Summit - held in Porto Alegre with industry and government representatives, the vote was expected to take place on November 29th. A week has passed and new expectations are being formed regarding the vote scheduled for that week.
Anyone who wants to follow the Bill's progress in the Federal Senate can access:
https://www25.senado.leg.br/web/atividade/materias/-/materia/160197.
Ana Helena Karnas Hoefel Pamplona
Lawyer, professor, master and doctor in Law
