Apostas de quota fixa e o dever de proteção dos direitos fundamentais na regulamentação de atividades econômicas

Abstract

The text focuses its analysis on the regulation of bets in Brazil, investigating whether the current legislation complies with the principles of the Federal Constitution. The main hypothesis is that the State's legislative function, when regulating economic activities, must be guided by the guarantee of fundamental rights, preventing the new sector from creating obstacles to the realization of constitutional norms. Historically, gambling in Brazil was prohibited due to moral and ethical concerns. However, throughout the 20th century, there was a gradual relaxation, driven mainly by the State’s need to raise new sources of revenue, characterizing the so-called "legalization/revenue" binomial. Fixed-odds betting was legalized in 2018, allowing the proliferation of foreign companies operating without oversight and transforming the market into a significant source of revenue, due to the lack of regulation until December 2023 (Law 14.790/2023). This expansion has resulted in serious social and economic issues, such as increased household debt, match-fixing scandals, advertisements inappropriately targeting children and adolescents, misuse of social welfare funds in sports betting, and health damage due to the growing number of individuals addicted to gambling, among others. The fundamental rights identified as being infringed upon due to inadequate regulation include consumer rights, the dignity of the human person and the existential minimum, the right to health, and the comprehensive protection of children and adolescents. This study employs a bibliographic research methodology, encompassing relevant legislation, case law, and constitutional doctrine pertinent to the subject matter. The adopted method is the hypothetical-deductive approach: it begins with an initial premise, which is examined through a case study on fixed-odds betting and subsequently refined into a general normative framework. The constitutional analysis emphasizes the objective dimension of fundamental rights and the State's duty of protection (Schutzpflichten), which imposes on public authorities—including the legislative branch—an obligation to ensure the safeguarding of these rights. Furthermore, the principle of prohibition of insufficient protection (Untermassverbot) is invoked, requiring that, in light of the potential for rights violations within the regulated sector, the new regulatory framework for betting must effectively uphold the fundamental rights of users. This evaluation is conducted through the lens of the principle of proportionality, which permits the declaration of unconstitutionality of bets provisions should their justification prove insufficient to legitimize the restriction of the fundamental rights at issue.