Brazil Supreme Court Extends Gambling Review As Land-Based Ban Remains In Place

Brazil’s longstanding prohibition on land-based gambling remains in force after the Supreme Federal Court (STF) suspended proceedings in a case examining the constitutionality of the country’s gambling laws.

During a hearing on 6 August, reporting justice Luiz Fux concluded that Article 50 of Brazil’s Criminal Misdemeanours Act remains compatible with the 1988 Federal Constitution.

The provision, originally introduced in 1941, classifies the operation of games of chance in public places or venues accessible to the public as a criminal misdemeanour.

Justice Flávio Dino supported Fux’s position on the constitutionality of the land-based prohibition but requested additional time to examine the case. Crucially for Brazil’s regulated betting industry, Dino argued that the court’s consideration should extend to online fixed-odds betting.

“I do not see how to separate them, because a bet is a game of chance. That is the point,” Dino said.

Proceedings have consequently been suspended for up to 90 days, although the timing of the court's eventual return to the case remains uncertain.

Justices Back Continued Land-Based Gambling Ban

In supporting the existing prohibition, Fux concluded that Article 50 remained legally valid following the introduction of Brazil's 1988 Constitution and was not incompatible with the rights and protections established under the newer constitutional framework.

The defendant had argued that criminalising games of chance conflicts with individual freedom, free enterprise and economic liberty and no longer reflects modern Brazilian society.

Fux rejected that position, arguing that restrictions on gambling continue to serve legitimate objectives around public health and public order.

“There is an entire structure of persuasion designed to ensure that, even after losing, the bettor compulsively continues trying to reverse the outcome,” Fux said.

He also argued that constitutional protections surrounding individual freedom are not unlimited and can be restricted where the state believes other protected interests are at risk.

“In other words, the state protects the individual from himself. Not against him, but because he does not perceive the significant harm he is causing himself,” Fux added.

Dino Seeks To Bring Online Betting Into Review

Dino agreed that Article 50 remains constitutional and supported concerns surrounding gambling-related harm, including addiction, impacts on families, money laundering and organised crime.

However, the two justices differed over how broadly the court should approach the case.

Fux considered the appeal to be specifically concerned with the criminal misdemeanour contained in Article 50 and therefore separate from Brazil's regulated fixed-odds betting sector.

Fixed-odds sports betting has its own legal status after being authorised through Law No. 13,756/2018 and subsequently incorporated into the country's regulated betting framework.

Dino questioned whether such a distinction could be maintained when assessing gambling from a constitutional perspective.

“If we say that games of chance constitute a criminal misdemeanour, are we saying that betting is also a misdemeanour? Then we need to explain why it is not. Why is it not? Because it is a game of chance,” he said.

Dino's request for further analysis means the court will consider the issue before reaching its final conclusion.

Betting Law Challenge Could Influence Proceedings

The expanded discussion is particularly significant because a separate Direct Action of Unconstitutionality (ADI) challenging Brazil's fixed-odds betting framework is already awaiting consideration by the STF.

Although the ADI and RE 966,177 concern different legal questions, arguments raised during the land-based gambling case could influence how the court approaches the constitutional challenge to the country's betting legislation.

The court has agreed to consider developments in the betting-related proceedings during the additional review period, potentially bringing the two debates closer together.

Until final decisions are issued, Brazil's existing legal framework remains unchanged. Land-based games of chance continue to be prohibited under Article 50, while licensed fixed-odds betting businesses remain legally permitted to operate under the federal regulatory regime.

Casino Resort Bill Remains Before Senate

Separate from the Supreme Court proceedings, lawmakers are continuing to consider legislation that would expand legal land-based gambling in Brazil.

Bill 2,234/2022 remains before the Senate and proposes permitting activities including integrated casino resorts, bingo halls and the traditional jogo do bicho numbers game.

The Supreme Court's consideration of Article 50 does not remove Congress's ability to amend federal gambling legislation and establish a regulated framework for those activities.

However, with the initial judicial positions supporting the constitutionality of the existing prohibition and the court's discussion now extending towards regulated online betting, the proceedings could have wider implications for Brazil's continuing debate over the future scope of legal gambling.