FormalPara Introduction

Brazil’s approach to commercial gambling has always been unique, and contrary to the traditional cycle of gambling regulation, that departs from illegality towards legalisation in adjusting the appropriate form of regulation until normalisation. Brazil is a federal state with 26 states and a federal district. After short-lived but remarkable periods of liberalisation, Brazil has gone backwards and now bans almost all forms of commercial gambling across the country. Part of the justifications of the current prohibition lies not as much in the formal reasoning from its criminal laws from the 1940s in terms of religiousness, social rejection, and culture, as it does in the post and far-reaching effects of the traumatic and chaotic regulation of bingo. Bingo was legalised for a brief period at the beginning of the 1990s and banned again at the beginning of the 2000s.

Since then, commercial operators have been creative in finding loopholes in the laws and tireless in advocating for proper and general legalisation for the sector. However, until now none of them has been sufficiently successful. In order to address what is commercial gambling in Brazil, this article departs from the very distinguished scenario under which the Brazilian gambling industry has flourished—and still does, behind the scenes—to critically analyse the main trends in terms of perspectives, based on 1) exceptional rules and piecemeal legislation that allow for practices such as poker and horseracing to be allowed, to flourish and expand; 2) reliance on general bills about gambling that have been up for discussion and deliberation for decades in the National Congress, with both great support of the informal lobbying industry and expressive resistance from religious groups; and 3) new forms of public–private interaction as quasi-public goods as outlined in a recent law surrounding sports betting and in ideas related to opening to the market one of the arms of the national lottery.

Far from having premonitory views about the future, but refusing to roll the dice to access what is about to come next, this study focuses on giving a proper understanding of what is commercial gambling in Brazil and why its background is a sine qua non condition to properly comprehend its present and evolving state.

1 The Uniqueness Surrounding Gambling Regulation in Brazil

The relation between Brazilian formal regulation and gambling practices has always been surrounded by lack of clarity and instability, a trend generally linked to a metaphor of casino capitalism (Strange, 1989)—and that we could name here as a casino regulation roulette (on casino capitalism, see also Nicoll, this volume). As Strange points out in the financial world of the late 1990s, here, in Brazilian gambling history, key decisions have been almost like guessing games and betting in the dark—while not enough has been done to rein in its respective juridical patchwork and cool down its regulation roulette. Brazil, a country known for its strong competitive traditions in sports and gaming (Larghi, 2021), is a notable exception to the liberalisation trend in gambling policies that have been shaping the Western world. Indeed, Brazil is one of only three G20 countries (the others are Saudi Arabia and Indonesia) that mostly bans non-state providers of gambling products.

Even though gambling may be as old as human interaction, it was not until the eighteenth century that regulation played a crucial role in gambling (Adams, 2008). By that time, gambling was subject both to applauses and mistrust worldwide (North America, Europe and Africa), especially national lotteries (Miers, 2018). But not in Brazil. National lotteries were quite popular during the enactment of the Brazilian Republic—the so-called República Velha (1889–1930), based on unclear rules in concessions (Godoy, 2014), while the role of private stakeholders has always been controversial, from jogo do bicho (‘animal game’) to, later, casinos. The apparent dichotomy that Brazil has dealt with in gambling regulation reverberates in the fast-changing environment within which laws, industries and societies have evolved. The notable paradoxes in the justifications of gambling prohibition and the real capacity of the country to manage such complex activities in the real-world help to explain the distinguished Brazilian path in the traditional gambling cycle (Adams, 2008). In his critical theory of regulation, Adams (2008) describes how regulation ranges from prohibition to liberalisation, in a linear, albeit conflicting, process. Brazil, however, went backwards in this cycle, from liberalisation to prohibition.

For example, jogo do bicho, a traditional game in Brazil since the end of the nineteenth century, resembles a modality of lottery owned by non-state providers and was allowed for very short periods at the beginning of Brazilian urban life. In a deep analysis of what this gambling modality meant from its very initial introduction into the Brazilian territory under the carioca’s (Rio de Janeiro’s citizens) culture, Chazkel (2011) denounced the reasons underlying its criminalisation. She shows that the move surpassed the formal concerns with morals, religiosity and legality to address the main anxieties manifested by the state’s bureaucracy with regard to maintenance of public order and behaviour regulation.

Different from the jogo do bicho, however, casinos, like the lotteries, operated within the formal economy. During the 1930s they generated a reliable stream of public sector income through licenses and taxes as well as substantial private profits. The most famous casinos of the time were situated in Rio de Janeiro, São Paulo, and Minas Gerais. They were the stage of distinguished artistic performances; by far the most well-known was the large saloon of the Copacabana Palace Hotel that epitomised the Brazilian golden age. In 1941, however, the Federal government passed a new Criminal Contraventions Act (CCA—Decreto-Lei nº 3.688/1941) in which it consolidated the piecemeal bans on specific games that it had formerly created under the 1890 Penal Code (Decreto nº 847/1890) into a default rule, prohibiting all forms of gambling that were not specifically exempted (Mahon, 2011). Even though casinos fell squarely within the scope of the prohibition, rather than an exemption, some establishments remained open, relying on licenses and concessions secured before the 1941 legislation (Jobim & Williams, 2017). To remove uncertainties caused by the co-existence of the general prohibitions under the CCA with the pre-existing specific authorisations that casinos held, the Federal government in 1946 enacted a law (Decreto-Lei nº 9.215/1946) declaring that casinos were covered by the CCA, based on concerns over a universal conscience imperative, worldwide legislative patterns, religiousness and morals.

Apart from the influence of religion and from the adequacy of the reasons set above to justify the gambling prohibition (Henriques, 2008), the fact is: since then, the mixture of moral, legal, economic, and political arguments in favour of and against gambling liberalisation have resulted in an impossibly tight and complex knot (Chazkel, 2011). Extrajudicial policing practices and the lack of willingness of judges to prosecute gambling offenders bear witness to the formalisation of an embedded system of informal justice that would characterise Brazilian urban public life in not only the twentieth, but also the twenty-first century.

The complexities of relying on criminal law as an important regulatory instrument in this context are illustrated by recent conflicts within the Court of Appeals in Rio Grande do Sul (Turmas Recursais do Tribunal de Justiça do Estado do Rio Grande do Sul [TJRS]). One division of this court has been acquitting gambling establishment owners by stating that the CCA (art. 50) is outdated in the current societal context (2016). The notion that the legal prohibition of gambling is no longer binding thanks to a form of desuetude has enormous and unparalleled implications. For instance, vagrancy (art. 59 CCA) is still a misdemeanour (albeit with fewer cases being taken to courts over the years) while mendicancy was subject to decriminalisation through legal instruments (Lei nº 11.983/2009). Conversely, in 2017, another division of the same court ruled that the criminal prohibition of gambling does exist, is still in force, and that a criminal law cannot be revoked simply by practice; the prohibition could only be revoked formally, by the law, and not informally, by social acceptance. As a result of this conflict, an appeal was taken to the Brazilian Supreme Court (Supremo Tribunal Federal [STF]), which accepted the case (2007), recognising the relevance of the topic on social, economic, political, and juridical grounds and seeing a coherent question to be answered. However, at the time of writing, no decision has yet been issued.

Criminal laws and allowance of the practice under Brazilian Administrative Law are different aspects that should be considered when thinking about lawful commercial gambling (Bedford et al., 2016; Jobim, 2018). Meanwhile, in the public sector, the Brazilian Federal Bank (Caixa Econômica Federal [CEF]), in a system dated from the 1960s, figures today as one of the most influential state-owned public banks and is the entity that controls the national lottery in its multiple forms (Decreto-Lei nº 304/1967). Authorised lotteries have always been allowed in the Brazilian landscape. The general restriction dates back to the CCA and relates solely to unauthorised lottery modalities that are, consequently, specifically prohibited (art. 51, CCA).

Nevertheless, the STF decided in the second half of 2020 that the state-run lotteries’ excessive centralisation of powers with the Union is not in accordance with the Brazilian Constitutional order of the late 1980s, especially under the lens of cooperative federalism and concurrent powers (STF, 2020). The 2020 decision presents far-reaching effects on future cases and in legislation modelling and implementation by 26 of Brazilian states and the Distrito Federal (not to mention Municipalities), including prospective novel forms of channelling decentralised approaches and engagement with the private sector.

2 Present: Piecemeal Legislation, Loopholes and the Prominent Role of Judicial Regulation

Brazilian public authorities have historically responded selectively to gambling products and practices, simultaneously suppressing some and enabling others (Jobim & Williams, 2017). Ad hoc lotteries were authorised to fund charitable causes and public works such as prisons and other government buildings in the late eighteenth and early nineteenth centuries (Godoy, 2014). Thereafter, the federal government adopted a more decentralised approach, choosing instead to distribute lottery tickets through organisations selected by public tender (concorrência pública) (IPEA, 2010). The system lasted until the first half of the twentieth century. During the 1960s, the period that coincides with the Brazilian military regime (1964–1984), a monopolist-centralised legislation was enacted—a trend that seems to be, at present, under review.

Another exception to the general gambling prohibition that lies almost entirely with private operators is authorised horse racing. It presents a long tradition in the Brazilian betting and social landscape and, different from the other main gambling activities, it has not suffered from the habitual legislative uncertainty, since it has never been included under the scope of the CCA 1941 prohibition. In accordance with justifications that are a common ground to the acceptance of this gambling modality internationally (Miers, 2018), revenues are linked to the improvement of horse breeds. Currently, betting on horseraces is authorised by the Racecourse Betting Act (RBA) (Lei nº 7.291/1984) and regulated by the Decreto nº 96.993/1988. At the beginning of the 2000s, sectorial regulation (Instrução Normativa nº 21/2005, Ministério da Agricultura) opened the possibility of betting over international simulcast, a window that was closed a few years later and ordered turf establishments to cease international simulcasts (Instrução Normativa nº 08/2008, Ministério da Agricultura). After that, in 2015, another period of excitement began, aiming at modernising and expanding the market, both domestically and internationally. During this time, the French operator, Le Pari Mutuel Urbain (PMU) partnered with the most influential Brazilian Jockey Club (Jockey Club Brasileiro [JCB]), in Rio de Janeiro, and opened a subsidiary to manage horserace betting physically, over the phone and on the internet. Besides promoting simulcasting and betting operations locally and internationally, PMU acted strongly in different media channels to disseminate the culture of a Brazilian horseracing passion (see also Berret & Marionneau in this volume about the international operations of PMU). After a few years and due to a strategic decision in terms of business development, PMU, in 2019, announced that the forthcoming focus would be constrained to the betting operations, a market that seems to continue in the present—and not on the entire structure maintained up to that point. Many activities were then taken back by the JCB, that denies any changes in terms of simulcasting, marketing, and compromise with industry expansion, especially in terms of internationalisation (JCB, 2019). In parallel, Porto Alegre, hosting one of the most iconic and traditional Brazilian Jockey Clubs, Jockey Club of Rio Grande do Sul (JCRS), with most of the history of the gaúchos (Rio Grande do Sul’s citizens) linked to the tradition of horses and cattle ranching, has been relying on its own infrastructure to run races and betting with exclusivity (JCRS, 2021). Alternatively, due to a loophole in the RBA, majestic halls and a well-funded market by local actors resembling real casinos, like KenoPlay, linked to the Jockey Club of Carazinho, a city in the countryside of RS, have been developing as extensions of horserace tracks inside the urban landscape in different cities (Ribeiro, 2017), proving the gap between formal gambling illegality and social practice (Kervalt, 2017).

Poker for its turn is subject to controversial interpretations. At the beginning of the last decade, one of Brazil’s Highest Courts (STJ, 2003) ruled that poker was as illegal as bingo for being considered a game of chance. A few years later a shift in mentality was enabled thanks to massive engagement from the industry– not through an ordinary legislative process, though (Mahon, 2011) –, with a prominent role developed by the giant H2Club, the largest poker provider in Brazil (Soares, 2019). The leading case that has become influential was initiated by the company before a state’s court (Santa Catarina), relying on a medical report and on a legal opinion of one of the most prestigious Brazilian lawyers and Professors of Criminal Law at University of São Paulo (Miguel Reale Júnior), stating that poker was in fact about psychology and the manipulation of one’s feelings—and not about luck (TJSC, 2013). The prevailing judicial understanding was then that poker was in fact a game of skill instead of a game of chance and as such, it would fall outside the scope of the default prohibition rule of the CCA. As a result, many Brazilian and international tournaments based mainly on fixed-odd betting (charged as a subscription to avoid correlation with unregulated sports betting), with massive popularity, have spread throughout the country with considerable attention from the ad industry and media channels. Conversely, ring poker games are usually subject to greater public scrutiny. Still, when a case is taken before the Judiciary, many conflicting views can still be reached (TJRS, 2008, 2011, 2015; TJSP 2020).

Finally, special mention shall be given to bingo. Brazilian bingos were included in the scope of ‘The Bingo Project’ (Bedford et al., 2016), a three-year initiative—funded by the Economic and Social Research Council (ESRC)—led by the University of Kent that involved research into how bingo is regulated in different countries. The stance is peculiar because the game was exempted from Brazil’s criminal prohibition, in 1993 (Lei Zico, nº 8.672/1993), almost ‘by chance’, since the enabling legislation was primarily concerned with financing of sport, not with gambling. Under art. 57 of Lei Zico, the federal government created the exemption to raise funds for the democratisation of sports, an obligation that the Brazilian state had assumed under the 1988 post-dictatorship constitution. The legalisation of bingo was intended to provide an income-generating opportunity for sports organisations. Lacking the required expertise and investment capacity, however, such organisations partnered with commercial operators. The abrupt form in which this legal window was enabled was already a proxy to reveal what was about to come next. A scant few months after the enactment of the enabling legislation for the commercial provision of bingo games, the law was extended to allow higher intensity play in bingo houses through electronic games and slot machines.

With the rapid introduction of electronic gambling machines (EGMs) under the name of electronic bingo, a number of international providers—Divermatic, Brasil Games (Champion), Shock Machine (Show Ball), Teckgold (Diamonds), Ms Games (Nine), Ms. Games (Pachinko), Abraplay (Game Ball) (Senado Federal, 2006)—partnered with the local industry and drastically transformed the image of social charitable bingo prevalent elsewhere. Large profitable bingo halls were established in many cities and generated revenues for municipal, state, and federal governments. At the same time, the frequent changes in the location of regulatory authority between different levels of government, and the game variations across the country (including games similar to bingo and video-bingo, for instance), made it difficult for people to know which games were lawful and which agency was responsible for the bingo market (Bedford et al., 2016).

Simultaneously, when challenged in court, the prevailing understanding was that EGMs fall within the scope of prohibition for being considered typical games of chance in which the results depend mainly on luck, as prescribed by art. 50 of the CCA—and not exempted by specific legislation. Under this apparent conflict between the blurred law in the books and law in action which allowed quasi-casinos to be run, the Brazilian bingo industry and its regulators were repeatedly ensnared in corruption, organised crime and money laundering scandals (Senado Federal, 2006). For instance, a special investigation, known as Operation Hurricane (Operação Furacão), was headed by the Federal Police and Prosecution Services confirming corrupt practices in some courts that had been extending bingo licences through judicial order (JFRJ, 2012; STF, 2008).

Additionally, a Parliamentary Commission of Inquiry (CPI dos Bingos, 2006) reported that businesses representing the interests of organised crime—both domestic and international—had captured much of the Brazilian bingo market. The report found that criminals were using bingo halls to launder money and that proceeds were diverted to corrupt government officials, from federal to municipal levels, from the Police to Higher Court judges (STF, 2008), undermining public confidence in the integrity of judicial and enforcement bodies. The greatest audacity, according to the Federal Public Prosecution Office, was that Brazilian organised crime—sometimes coupled with international mafia organisations—went beyond the bribery of ordinary public servants to reach the very highest positions of government (STF, 2008). Accordingly, bingo’s closure was resisted through political processes, legal actions, and defiance. However, in 2007 prohibition was, in effect, reinstated by the Brazilian Supreme Court (STF) in such a manner as to rule out juridical uncertainty and moralise institutionalised powers with a binding precedent (Súmula Vinculante nº 02). The judicial norm stated that the exclusive competence to legislate in this field lies with the Union and that states may not legislate to license bingo or otherwise regulate it unless there is a general federal law authorising them to do so. Up to now, no federal law has been enacted in this direction, driving commercial bingo practice underground.

As the practice remains unlawful, the domestic industry allegedly damaged by the episodes of the past committed by a few actors is now engaged working in the legalisation process. It claims to not comply with the clandestine bingo exploitation and through an association—the Brazilian Bingo and Casino Association (ABRABINCs)—has been very active in the law-making arena. The greatest challenge is to start the gambling (and bingo legalisation) debate from scratch, since a number of crimes perverted the integrity of the still incipient gambling system, involving key figures of the Public Administrative and tripartite powers. The containment of criminality risk remains a conventional justification for gambling regulation worldwide, as outlined by Williams (2018). However, the enormous emphasis given to the mitigation of criminal risk over equally important risks, such as player health and financial security, is quite unique.

3 The Hope: General and Extensive Laws on Gambling

This lack of linearity in the Brazilian gambling regulation process, as well as the constant need for judicial intervention to rationalise incoherencies, lighten obscurities and dismantle ambiguities in legislation demonstrates the notable inefficiencies in the models adopted so far (Martins, 2017). Additionally, challenges brought by the online environment are enormous—from gambling to gaming and from domestic to cross border transactions –, since they may lead to the complexities involved in regulating internet content itself. At the same time, they indicate that the path towards legalisation is inescapable. However, distinctly from piecemeal legislation, that tends to bring more instability instead of providing mature and sustainable steps towards linear regulation and normalisation, future legislation broader in scope is being modelled and presented.

Pragmatically, two comprehensive draft bills about gambling are being discussed in the Brazilian National Congress; one, in the Senate (PLS 186/2014) and the other in the Chamber of Deputies (PL 442/1991).

The draft bill in the Senate has been amended more than sixty times and still awaits a forthcoming and decisive plenary voting session. The draft now covers almost all gambling modalities, from casino to jogo do bicho, including bingo, fixed-odds betting, sweepstakes, and general electronic betting (that are run by the CEF)—and thereby does not restrict its scope to commercial gambling activities (art. 8º), as in its original format. The draft mentions as one of its foundations the conjoined pillar of corporate social responsibility of gambling providers and responsible gambling. However, it gives them merely a descriptive rather than a normative or prescriptive approach—without creating any obligations or clear duties of care to anyone involved. In the latest report presented by the Special Commission on National Development (SCND) (Coelho, 2016), the sufficiency of the topics covered until then was emphasised while the respective premises for approval were based on the need to 1) modernise the outdated Brazilian mentality in gambling regulation; 2) align Brazil with the more developed regulatory practices, considering as such the British, Australian, Spanish, and US (Nevada) regulations; 3) foster development through an increase in tourism; and 4) contribute to income and employment. The report shows clear concerns with growing the share of gambling revenues within the Brazilian Gross Domestic Product (GDP)—and not increasing GDP itself. These expectations lead to questions regarding how gambling liberalisation would create additional output and additional employment or merely dislocate existing ones (Miers, 2018) in a form of intra- and inter-cannibalisation between industries (Marionneau & Nikkinen, 2018). No specific numbers in terms of costs in building a proper regulatory framework is outlined. Rather, the estimate is to bring approximately 4 billion EUR (29 billion BRL) in public income from gambling over the following three-year period. However, no methodology, source or considerations to what factors were used to reach that projected number were given. From another perspective, the draft bill, by relying on liberalisation without the prior creation of an oversight agency (it actually says the opposite, since only after state revenue collection is implemented will the proper investments be made ex post in the Federal Police and in other institutional oversight bodies) may pose significant challenges in terms of approval. Indeed, the SCND’s conclusions were not embraced by the Constitution, Citizenship and Justice Commission’s (CCJC) report (Rodrigues, 2018), since a lack of control regarding this dangerous activity—gambling—would probably lead to corruption, money laundering and a gateway to further crimes, as already observed in the case of bingo. The CCJC report also noted that even in legalised jurisdictions, money laundering is still an emphasised concern. The document points out that Brazilians still ignore crucial aspects related to casino and online gambling regulation to develop, preliminarily, a robust regulatory framework and infrastructure according to the Financial Action Task Force (FATF) International Standards on Combating Money Laundering and the Financing of Terrorism and Proliferation. Finally, there is the allegation that no proper attention was given to public health concerns in terms of problem and pathological gambling while substantial social costs would impact not merely players but society as a whole. Also, based on premises of the Bliken Report (Rockefeller, 2016) and questioning the doubtful success of the Australian gambling experience, the CCJC emphasises that economic gains are an illusion, since according to international experience, they are almost negligible compared to the overall social costs.

The other proposal under consideration by the National Congress stands with the Chamber of Deputies. As in the previous case, it has not been submitted to the plenary for approval but the long period of time—more than three decades—over which it has been subject to deliberation points to the difficulties involved. In this project, more details in terms of regulation and licensing requirements are clearly established a priori, except for online gambling. Basically, it structures different gambling modalities to be ruled and overseen by different government spheres while enabling forms of coordination and interaction among them. The Union would still centralise many aspects of considerable importance, from setting general licensing requirements to effectively issuing them (art. 7º). Additional and complementary roles could be developed by states and municipalities thereafter. While casinos would be subject solely to federal legislation (art. 7º, III), other modalities are to be subject to hybrid models, combining roles developed by the Union with states (jogo do bicho and state lotteries, art. 7º, § 1º) or municipalities (bingo halls, art. 7º, § 2º). The intricacies involved in regulating such a controversial topic in Brazil are reflected by the more than 23 drafts presented since its initial proposition, back in 1991. The latest substitutive amendment bill drastically changes the Portuguese designation of games of chance also known as jogos de azar used both in the 1940s legislation (CCA) and replicated in the previous bill (PLS 184/2014) that means, literally, ‘bad luck games’ to ‘fortune games’ (jogos de fortuna). The explicit goal is to surpass the direct association of gambling with criminality and instead emphasise its importance in terms of enabling the creation of ‘fortune’ by assisting in social and economic development (art. 2º). The draft covers the idea of responsible gambling very broadly (arts. 15, 16), relying i) on autoregulation in the elaboration of codes of practice by the industry and, ii) as already pointed out by The Bingo Project on the adoption of a restrictive scope to its meaning by merely reducing it to the blacklisting of excessive gamblers—and still, delegating the recognition of problem gambling to the Judiciary or to affected individuals themselves. Concerns with the rising impact of pathologic gambling on the Brazilian Universal System of Public Health (Sistema Universal de Saúde—SUS), having proven to be substantial during the short-lived bingo legalisation period (Bedford et al., 2016), are almost untouched.

The debate is still open and there seems to be an explicit competition between those bills that may end up harming instead of fostering a unified and harmonic debate about the topic, since the basic premises and concepts are constantly changing simultaneously in both houses. All those factors seem to hinder popular participation in this supposedly democratic legislative process. The lack of this basic definition of the ‘game’ that should be ruled on works in the direction of deepening instead of reducing polarisation, since the discussion is mostly focused on mainstream economic and religious arguments in favour and against liberalisation. The role of morals in shaping the current scenario seems unclear. Consequently, serious conversations are hindered surrounding the most suitable framework able to conciliate or reduce apparent conflicting interests and negative externalities related to oversight, control, accountability, crime prevention and public health towards a proper regulation—a sine qua non condition for it to occur successfully.

In terms of consistency, religious arguments seem to have been paradoxically invoked, including by the current Brazilian President (as of April 2021), Jair Bolsonaro (Klein, 2018), who at first acted against gambling proposals due to his religious views on it and now calls for discriminatory legalisation (UOL, 2020). Some politicians have been pointing out the potential for interference from international companies interested in narrowing the scope of the bill from multiple games of chance to casinos only (José, 2018). In following up this selective method of legalisation, it is possible that the pervasive effects already outlined in previous moments are replicated in the future. Equally, the allowance of merely a couple (three at most per state, according to PL 442/1991, for instance) of integrated casino resorts—both in deprived areas of the North and Northeast regions, but also in major cities of the wealthiest Southeast—in a giant country like Brazil, may present marginal benefits to Brazilian society, potentially merely dislocating expenditure, with negligible impact on the size of the economy.

4 The Way Forward: Mixing the Public and the Private

Considering the very specific way under which Brazilian commercial gambling activities have developed since the end of the nineteenth century and the far-reaching effects of the traumatic and chaotic regulation of bingo at the beginning of the 2000s, new forms of engagement between the public and private sectors are emerging on the horizon. The close relation between those spheres in liberalising gambling is not new (Adams, 2008), but the way that this interaction has been modelled seems to be quite peculiar.

The first trials conducted under these new forms of public–private partnerships are being led inside the federal lotteries. One of the initiatives lies in the allowance of fixed-odds sports betting by commercial operators thanks to a specific chapter (Chap. V) of Lei nº 13.756/2018, enacted two years ago and still subject to further regulation. Despite the Union remaining with considerable and exclusive powers (art. 39) yet to be delimitated (through administrative instruments of concessions or authorisations), it would still benefit from the growing revenues enabled by competition between commercial operators to which these public services will be delegated. An extensive study on the topic is already in process by the Brazilian National Social Development Bank (BNDES) alongside the Ministry of Economy, with potential revenue estimates yet to be provided (Simão & Ribeiro, 2020). Until then, to what extent this alternative will become viable and productive to Brazilians is an open question, since many aspects, from taxation to the overall scope of transferred powers and juridical security to commercial operators, are yet to be clarified.

The second trial is a path still under construction and aims at opening one of the arms of the federal lotteries to commercial operators, the instantaneous lottery (LOTEX, Lei nº 13.155/2015). There is an explicit intent of calling and welcoming foreign private investors to the field. After two unsuccessful public tender trials, the international consortium formed by the International Game Technology (IGT) and Scientific Games International (SGI), Consórcio Estrela Instantânea, was chosen to explore LOTEX services, at a cost of 133 million EUR (817.9 million BRL) referent to the first year of a 15-year concession period (PPI, 2020); 16.7% of the GGR should be given to the Union and earmarked for public policies related to public safety, sports, culture among others. However, after intense negotiations with CAIXA, there are rumours that the consortium decided to withdraw the process due to excessive delays in starting the operations (‘Vencedoras do leilão da LOTEX’, 2020). No official information has been released by the Brazilian government though, leaving speculations that talks between the consortium and CEF are ongoing (GMB, 2021). Again, the uncertainty related to gambling that permeates Brazilian history is a recurring theme and highlights that rules are needed, but are not about to be set solely by the government.

The fact that those initiatives are being led by the Union inside lottery modalities reduces public criticism, since they would not mean gambling liberalisation in general, but mostly a refinement of already well-established modalities. As such, the industry could intervene in this hybrid public and private space to 1) raise revenues associated with good causes and 2) assist in the development of more up-to-date technologies. There is still hope that, once these modalities are successfully introduced, more extensive approaches to gambling liberalisation would be easier to propose and implement. Whether those trials turn out to be useful milestones in the awkward cycle of Brazilian gambling regulation or just another stone in the middle of the path is yet to be seen. What is certain is that greater plural participation in political debates is needed to conciliate past failures with future goals in the Brazilian context.

5 Concluding Remarks

In summary, commercial gambling regulation has not been able to thrive, until now, within Brazil’s complex scenario. The lack of plurality in political debate, linked to one-sided effects and interests that have enabled sporadic permissions and ambiguous authorisations to a few gambling modalities have damaged the image of the whole sector. In this scenario shrouded in uncertainty, piecemeal legislation is still an option viable to many sectors. This also coincides with many vested interests in the gambling industry that, considering self-guided benefits and premature concerns with intra-cannibalisation, aim to implement the idea of the winner-takes-all. Additionally, the instability on judicial and legal grounds has turned out to be a permanent condition of the Brazilian market with adverse effects on the economy and society.

Even though a one-size-fits-all approach to gambling is neither viable—nor desirable—in the legal framework about to be designed, basic premises in relation to gambling should be better addressed. Piecemeal legislation, lack of coherence, and religiousness, by bringing more instability and subjectivity than certainty, have played doubtful roles towards legalisation and have incentivised deep judicial intervention in not merely regulating the market through legal commands, but in creating the law itself. In opposition to the intent of gambling prohibition decades ago, the unpredictability of the gambling regulation scenario still welcomes public disorder. This price—constant judicial uncertainty—is too high to pay.

New interactions between public and private spheres are initiatives aimed at dismantling the complex knot that Brazilians have been facing in commercial gambling regulation. However, no results can be celebrated up to now. Once more, lessons from history show that the question is not about legalisation or lack thereof, but rather about effectively regulating gambling modalities. Far from benefiting from a cannibalisation of bills and ideas, there is in fact time for general engagement in building a proper understanding of a market that already exists, but that presents patterns, developments and concerns that need to be urgently discussed, free from passionate opinions.

Abandoning unrealistic expectations about what gambling can do, it remains vital to discuss what gambling is, since lawmakers cannot regulate something they cannot understand. Otherwise, there will only be new ways of rolling the dice through law. Between past trials and future goals, it is evident that today’s success depends on openness and clarity. Only with greater engagement of society in general and more transparency in political processes will Brazilians have a real chance to win this time.

Declaration of Conflicts of Interest

None to declare.