FIRST PRINCIPLES
FOUNDATIONS OF A LEGAL THEORY OF BETTING GAMES TO ENSURE WE HAVE GAMBLING REGULATION WHICH IS CONSISTENT, IT IS ESSENTIAL FIRST TO DEFINE THE GAMES WE WISH TO REGULATE ARGUES CARLOS ALBERTO FONSECA- SARMIENTO
Introduction One of the most confusing and frustrating conditions facing regulators and those attempting to work according to their regulations is the anomalous and inconsistent way in which laws are enacted and applied. In Chile, for example, slot machines are considered games of chance and only allowed inside casinos, however, there are many electronic betting machines operating outside casinos because the law has not comprehensively regulated all betting games. In some Brazilian states there is a long-standing situation where slot machines are considered lottery games or one-person bingo terminals for the sole purpose of evading a federal ban on slot machines within the Brazilian territory. In Ecuador, as a result of a popular consultation, games of chance for profit were prohibited, but today, sports betting games are offered without regulation, even by the Internet. In all these cases (and many more in Latin America), legal disputes between operators and regulators are frequent. On the one hand, operators defend their constitutional rights
before ambiguous laws; and on the other hand, regulators seek to protect the public interest against any negative externality that may be caused by offering an insufficiently regulated game. In all these cases the solution is the same: define precisely what a betting game is. This is what we will set out to do in this article. When developing a positive legal theory of betting games three dimensions need to be considered: first, an analytical dimension that seeks to provide clarity on the concept of betting games; second, an empirical dimension that describes the existing legislation and jurisprudence (case law); and third, a statutory dimension in order to propose appropriate legislation on betting games and to ensure laws are compatible with the Constitution. This paper only deals with the analytical dimension and can be used to inform any national legislation. No legal theory can exist without a clear concept of the item it is supposed to explain. Regrettably, this is the first and biggest mistake observed in the laws of many countries from the author’s
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IMGL MAGAZINE | APRIL 2023
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