The Provisional Measure (PM) for Sports Betting, even though it has not even advanced in the National Congress, provokes the market with the perspective of conceiving solid regulations and guaranteeing legal certainty to stakeholders.
It can be said, in general terms, that the text presented by the Federal Government has many positive points, although there is resistance in some aspects. Naturally, its maintenance is not even guaranteed as a provisional measure – which would guarantee immediate effectiveness and the parliament's obligation to consider it within 120 days – but as a bill; however, its formal existence brought encouragement and hope to stop dilemmas and problems already perceptible to the naked eye.
Among many aspects, I will address only two of them here, which are collected from the propositions of innovation and alteration, respectively, of articles 33-C and 35 of Law 13.756/2018, of the Draft Proposal for a Provisional Measure.
Compliance becomes a reality in the sports betting market. Its regulation will not be accepted without expanding the control over transactions, the monitoring of bets placed and the identification of bettors.
The recent episodes involving the manipulation of several football matches from Series A and B of the Brazilian Championship (Maximum Penalty Operation) reveal how fragile the protection of the integrity of the sport is when there are no effective means of control. It is evident that only sporting punishments and normative prohibitions in regulations and regulations of sports administration entities are insufficient to contain a resourceful and challenging criminality.
Not without reason, the legislator directs the future law to require players to submit to rules of greater control and the creation of a safer environment through compliance. Obviously, the law did not intend to, and cannot do so, leaving the Ministry of Finance, later, to forward a decree that regulates clear and objective requirements in more detail.
Certainly, there is a fear of building those compliance programs “for the English to see”, which are nothing more than mere facades to comply with legal determinations. However, the degree of seriousness can be determined by the regulatory agency that will be created.
It should be noted that Article 33-C, in its § 1, binds the legal command available to other legal entities in addition to sports betting houses. It was determined that the competitions that are the object of the bets must include a monitoring system by the operators.
However, it is worth asking: will it work with only one of the actors taking responsibility?
Evidently not. It is at this moment that those in the sports world (clubs, federations and athletes) will have their responsibilities highlighted. Therefore, activity control will not be restricted to operators only, but will be extended to everyone who is somehow influenced by sports betting.
In this vein, the ground is fertile for establishing a true system of compliance and good governance by federations and clubs; and submission of athletes to the most severe controls.
The proposed change to Article 35 further expands its scope, requiring the market to submit to rules to combat money laundering and other more serious criminal offenses. Fulfillment of customer identification duties, record keeping and communication of transaction values is imputed (see articles 10 and 11 of the Money Laundering Law).
It should be noted that this statement anticipates a future amendment to Law No. 9.613/98, so that operators and gamblers are included among the persons subject to the control mechanism (Article 9). Such an obligation sounds strange without them being part of the list of those obliged to comply with the strict rules of control, even under penalty of being accused of criminal action for failure to comply with a legal duty.
Furthermore, will only operators and bettors be on the list of those who can “launder money” through sports betting?
Obviously, much can change, instead of a provisional measure, it becomes a bill, with or without urgency; however, the search for legal certainty and integrity has already found a perennial home, whether by operators, or by the State, as well as by everyone who gravitate around this market.
The path is without return. Now it's time to move on without looking back.
Milton Jordan
Attorney. Partner at Jordão & Possídio Sociedade de Advogados. Master in Social Policies and Citizenship from UCSAL. Master in Sports Law at the University of Lleida (Spain). Vice-president of the Special Committee on Sports, Lottery and Entertainment Law of the National Bar Association. President of the Bahia Sports Law Institute (IDDBA). Member of the Deliberative Council of the Brazilian Institute of Sports Law (IBDD). Member of the Institute of Brazilian Lawyers (IAB). President of the Judo STJD. Former Attorney at the Football STJD. Author of articles and legal works on Sports Law.
