The issue has been constantly debated in the Brazilian legislature, and should soon be regulated, putting an end to the discussion
With the sanitary crisis "stabilised", we have gradually seen the return of sports activities all over the planet. Because of this, one particular hobby has come to the forefront among sports fans: fantasy games.
But what are these games? Well, in short, they are platforms where the dynamics of gameplay is based on managing line-ups of competing teams so that, at the end of the rounds, the participant (user) accumulates points according to the real performance of the competing athletes and, at the end of the competition (League, Championship etc.), these points can be exchanged for prizes, including real money (electronic currency or cash).
So we are talking about a game that depends on luck and, because of that, it would fit in as a "game of chance", right? Not quite. Let me explain.
The concept of betting is defined in article 50, §3, paragraph "a" of Decree no. 3688/1941 (Law of Criminal Contraventions) and states that "a game of chance is considered to be (...) a game in which gain or loss depends exclusively or principally on luck".
From what is extracted from the text above, in compliance with paragraph "a", to characterize this concept, three (3) elements are required: (i) to be a game; (ii) to involve a gain and a loss; (iii) to depend exclusively or mainly on luck.
According to a legal doctrinal definition, a "game" is: "(...) the contract in which the parties compete for an objective, observing the specific rules of the competition. The goal may be either to kick the ball into the opponent's goalposts the greatest number of times during a certain period of time, or to have all the numbers on the ticket drawn before the others (...) That is, in terms of the normative structure of the competition, the players have equal chances of victory or defeat; the result will be determined, therefore, by the competence, experience, preparation and luck of each player. Note that the preponderance of each of these factors varies from game to game". (COELHO, Fábio Ulhoa. Civil Law Course - Vol. 3 - Ed. 2016. Revista dos Tribunais).
Fantasy games and games of chance: differences
When analysing the definition above, it can be seen that the legislation under analysis seems to follow such understanding, as it starts from the premise that in every "game" there will necessarily be a winner and a loser, establishing this duality of "gain and loss".
Luck", on the other hand, applied to some kind of game, can be casually and informally defined as an element beyond the control of human manipulation or will, much more linked to statistical and mathematical probability than to the skill or performance of the participants of that game.
So what makes fantasy games different from games of chance? Well, the same thing that separates football, swimming, basketball and even poker. In these games the random factor is not decisive for the outcome. It is true to say that there is a certain randomness in these practices, but it is not that which defines the result of the games and competitions.
Even in poker? Yes, even in poker. Studies show that in poker, skill overrides luck. And the same goes for fantasy games.
Taking the example of football competitions, it is easy to see that a user who does not know the scenario and the players will have mostly worse results than a user who knows the players, the competitions and the teams. This shows that knowledge and critical analysis (ability, even if mental) are much more relevant than randomness (luck).
It is worth remembering that the luck factor is present, yes, but it does not define the results of the matches. It is the user's ability to analyse the scenario as a whole and draw the line-up that seems more adequate for each match that defines it. Thus, even under the cold view of the law, and considering that the random factor is present, there is no way to fit the "fantasy games" in the category of "games of chance".
Finally, the issue has been constantly debated in the Brazilian legislature and I believe that soon we will have a regulation to put an end to this discussion. Make your escalations!
Marcelo Mattoso graduated in Law from Unesa. He is a specialist in Digital Law (Innovation and Technology) from Fundação Getúlio Vargas, an enthusiast and specialist in consultancy and litigation in the Games and Esports market; lawyer, partner and coordinator of the Games/Esports area of the law firm Barcellos Tucunduva Advogados.
Source: Tecmasters
