There is no reason for the text of the Bets Law (Law 14.790/2023) to be declared entirely unconstitutional, as requested by two direct actions of unconstitutionality filed in the Supreme Federal Court last month. This assessment is from experts on the subject heard by the electronic magazine Consultor Jurídico.
The ADIs, according to them, carry legitimate concerns, but these should be directed to the National Congress, which should take care of expanding the protection of vulnerable people against betting.
The ADIs claim that the Bets Law, sanctioned last December, violates the fundamental principles of human dignity and the social values of work and free enterprise, in addition to the right to health and the state's duty to regulate the economic order.
The first of them, ADI 7.721, is an initiative of the National Confederation of Commerce (CNC). The entity highlights in the initial petition the indebtedness of families with betting and, as a result of the lower circulation of income, the loss suffered by the retail sector, estimated at R$ 117 billion per year.
ADI 7.723 was presented by the Solidarity Party. The party warns of the risk behavior associated with compulsive gambling and the damage to social programs, mentioning the study by the Central Bank that identified that, just in August, beneficiaries of the Bolsa Família spent R$ 3 billion on bets.
The rapporteur of both actions, Minister Luiz Fux, has called a public hearing on the subject for November 11.
Constitutional provision
For Paulo Peixoto, professor of Constitutional Law at Damásio Educacional, the concern with the spread of betting houses is valid, due to the social and economic damages caused by them.
However, from a technical-legal point of view, he says that the Bets Law does not suffer from a flaw of unconstitutionality, since the Federal Constitution ensures the free exercise of any economic activity, except in cases provided by law, and assigns to the Union the competence to legislate on lotteries, which are similar to online betting.
“Moreover, the law itself provides for responsibility, integrity, and transparency for the practices, foreseeing protection for consumers, children and adolescents, the General Data Protection Law, and public health itself.”
The constitutionalist Vera Chemin remembers that the exploitation of fixed-odds betting, as bets are also called, was allowed by Law 13.756/2018, and not by the Bets Law, which only regulated gaps in the previous norm.
“In this direction, the law under debate fulfills its purpose, from the moment it provides for all the requirements to be met by betting companies“, states the lawyer.
“One cannot start from the simplistic assumption that the entire law is unconstitutional, especially since it contains mechanisms that enable control and supervision of the activities of operating companies, in addition to enabling the fight against money laundering and, consequently, criminal organizations”.
STF Jurisprudence
Fernanda Meirelles, responsible for the TMT practice at FAS Lawyers
, adopts a similar line: “Even if these actions are accepted, the practical effect would be the repeal of the regulation established by Law 14.790/2023, while the activity of betting would remain legalized. This would put Brazil and consumers in a more vulnerable situation, returning to a scenario of lack of regulation”.
The lawyer understands that the exploitation of betting has already been the subject of analysis by the Supreme Court in the joint judgment of ADI 4.986 and the Allegations of Non-Compliance with a Fundamental Precept (ADPFs) 492 and 493. On that occasion, the court decided that the Union has exclusive competence to legislate on lotteries, but the states can explore them.
Relevant ADIs
For Lúcia Helena Polleti Bettini, partner at the firm Tortoro Madureira & Ragazzi Lawyers, the ADIs are still relevant even if there is no unconstitutionality in the fact that the Union regulates the matter.
“We must always think about constitutional supremacy and its unity, the harmonization between the norms. So a norm that, at first, is understood as necessary to remove the illegality of betting cannot affect other dimensions of human life, reaching the point of affecting the Constitution in its fundamental precepts”.
That is, even though the legalization is not unconstitutional in itself, the occurrence of betting must still meet the parameters of the Magna Carta, requiring restrictions and also adopting educational public policies.
“We need to have a systemic view, so that we do not just prohibit. We will not remove the problems with unconstitutionality. We must create means to make these games happen responsibly and without affecting vulnerable audiences, with this we reach this dynamic of the will of the Constitution”.
Eduardo Bruzzi, partner at BBL Lawyers, states that there is a constitutional debate about a certain lack of isonomy among the operators of betting in relation to the concession of a license by the federal government.
“Those interested who requested authorization from the Ministry of Finance by the last day of September are enabled to continue operating provisionally until obtaining a license. On the other hand, those interested who submit their request from October 1st can only start or resume operation after the grant of the license”.
Regulation and supervision
Paulo Peixoto and Fernanda Meirelles agree that regulation has a greater potential to inhibit the harmful effects of betting than the lack of rules, a situation that has persisted since bets were legalized, during the administration of Michel Temer (MDB), in 2018 — passing without changes through the government of Jair Bolsonaro (PL) —, until the sanction of the Bets Law by Luiz Inácio Lula da Silva (PT).
“Once regulated, it is the duty of the public power to ensure the safety of bettors, adopting strict stances for the registration and supervision of bets, including regarding advertising, in order to curb abusive conduct, as well as using part of the funds collected with public policies in favor of education and health”, states the professor.
“Contrary to what is claimed in these actions, it is not the regulation that boosts the increase in betting, but rather the already high volume of bets made by Brazilians that demanded the creation of rules for the sector. The structured and rigorous regulation, like the Brazilian one, not only offers security to bettors, but also imposes clear responsibilities on the platforms — exactly what the ADIs claim to seek”, says the lawyer.
Protection to vulnerable
Vera Chemin says that, although the Bets Law is constitutional, the legislation on the subject lacks greater protection for vulnerable groups, such as the elderly and low-income families.
According to the constitutionalist, this discussion should not be guided solely by moral convictions and needs to be centered in the Legislature, which has the competence provided by the Constitution to change the norms, with the institutional support of the bodies that make up the Ministry of Finance, both at the federal and state levels.
“From the moment the National Congress remains silent, the subject of the ADIs filed with the STF will have the unfortunate mission of further increasing the conflicts between a political power that has the duty and constitutional competence to respond to the clamors of its voters and a technical and apolitical power that needs to practice self-restraint, despite the obligation to respond to the ADIs filed”, she assesses.
Change of tone
Since last week, when the billion-dollar expenses of Bolsa Família beneficiaries with bets came to light, 32 bills have been filed only in the Chamber to toughen access to betting houses, restrict the advertising of this market, and combat ludopathy, the pathological dependence on gambling.
The Lula government also plans a package of measures, which should include the prohibition of using the Bolsa Família card in games. The Ministry of Finance, which regulates the sector through the Secretariat of Prizes and Betting, created in January, announced that about two thousand irregular betting sites will be taken down.
Last year, the regulation of bets began with Provisional Measure 1.182/23, surrounded by government expectations because of a potential annual revenue on the sector between R$ 6 billion and R$ 12 billion.
Along with the MP, PL 3.626/23 was sent to the Chamber, which approved it in a symbolic vote. The approved version began to include other online games, such as casinos, and not just sports betting. The Senate also endorsed the proposal symbolically, without the individual counting of votes, but with modifications, which made the text return to the Chamber.
The text-base of the PL that originated the Bets Law was finally approved by the deputies with 292 favorable votes and 114 against. At that time, part of the opposition and the evangelical bench expressed opposition to the regulation.
Discussion in the STF
Lúcia Bettini and Eduardo Bruzzi argue that the priority to the Legislature does not exclude the participation of the Supreme Court in the discussion.
“It is certain that the STF will need to opine on this possible unconstitutionality of Law No. 14.790/2023, especially now that the judicial disputes of the Union with state lotteries are in full swing and bringing legal insecurity to the recently regulated market of Brazilian sports betting”, states the lawyer.
“Minister Fux did well in calling the public hearing. It is necessary to listen to all interested parties and create mechanisms to think of a solution, to reduce the negative impacts on people's lives”, says Lúcia.
Source: Consultor Jurídico
