With the request for review, the analysis of the case was suspended again. This had already occurred in October of last year. The virtual session had begun on Friday last week (4) and was scheduled to end today (11).
Before the interruption, five justices had voted, all in favor of declaring the unconstitutionality of both contested rules.
Also known as the Sports Betting Law, the law was sanctioned on the penultimate day of 2023. The case under analysis concerns only modalities such as number lotteries, numbered tickets and instant lotteries. Fixed-odds bets, known as 'Bets', are being questioned in another lawsuit.
Context
The lawsuit was filed last year by the governors of São Paulo, Rio de Janeiro, Minas Gerais, Paraná, Mato Grosso do Sul, Acre and the Federal District. Also in 2024, the Attorney General of the Republic, Paulo Gonet, defended the validity of the contested sections.
The governors claimed that the restrictions imposed by the law reduce the participation of companies in bidding processes and favor an environment of competition between states, in which some tend to lose more than others. States with larger populations, or whose population has greater purchasing power, would be more attractive.
Another argument is the violation of free competition, since lotteries were deprived of the right to exploit their full advertising potential to attract new users.
A few days before the auction for the concession of lottery services in the state of São Paulo, Justice Luiz Fux, the rapporteur of the case, suspended the rules in question. The Plenary then began to analyze whether to maintain the injunction, but the trial was interrupted by a request for review by Justice Flávio Dino.
This analysis of the injunction has not yet been resumed. The trial that was taking place until Cármen's request for review was different, as it referred to the merits of the case.
Rapporteur's vote
Fux proposed the unconstitutionality of the rules and was supported by Dino, Gilmar Mendes, Alexandre de Moraes and Dias Toffoli.
In the rapporteur's view, the restrictions imposed by law prevent states from offering the concession of services to a greater number of interested companies, through the due bidding process.
The minister considered that there is no reasonable justification for prohibiting the concession of lottery services to an economic group in more than one state. Fux highlighted that this is not provided for in article 175 of the Constitution, which deals with concessions or permissions for the provision of public services.
He agreed that companies with the technical conditions to provide more efficient services would have to compete for the concession in more populous and more profitable states. This would harm smaller states, which would lose potential revenue and would be forced to sign contracts with companies that are “tendentially less qualified”.
The impact would be felt by consumers: without the “more economically capable” companies, these states tend to be subject to higher tariff costs, for example. In other words, the rule does not guarantee consumer protection.
According to the judge, the prohibition of the exploration of lottery services in more than one state weakens the revenue potential of the federation entities for the benefit of the Union, since the full operation of state lotteries could reduce the revenue of the Federal Lottery.
Fux also considered that there is no valid justification for preventing states from adopting “advertising strategies that make the most sense to them, according to their business planning”. After all, the law already prohibits a state from offering lottery services to people located in the territory of another.
The minister highlighted that it may make sense for a state to promote marketing actions in events held in other states, as long as the broadcast reaches the public located in its territory. This is the case, for example, of marketing actions in sporting events or even the sponsorship system for athletes and tournaments, widely publicized in the media.
“It does not seem reasonable, for example, that the lottery service of a given state cannot sponsor an athlete or a professional soccer team that will compete in another unit of the federation or even outside the country,” he exemplified.
“It does not seem reasonable, furthermore, that a state lottery cannot, for example, carry out a marketing action in a game of the Brazilian soccer team abroad, simply because the event physically takes place outside the territorial limits of the granting state.”
Source: Conjur
