The limits of consumer protection and the inapplicability of the right of withdrawal under the 'Bets Law'
Currently, the rapid growth of the online sports betting industry in Brazil has brought significant legal and regulatory advancements, especially with the enactment of Law No. 14.790/2023, known as the "Bets Law." This legislation established a robust framework for the operation of fixed-odds betting, addressing crucial aspects such as consumer protection, transparency, and taxation. However, the application of consumer protection laws, particularly the Consumer Protection Code (CDC), to online betting contracts raises complex issues due to their peculiar nature as aleatory contracts. The following analysis explores the limited applicability of the CDC in the context of online betting, highlighting the distinctive characteristics of these contracts and their implications for operators and bettors, focusing on the right of withdrawal and the principle of non-refundability of bets placed voluntarily.
1. THE LIMITED APPLICABILITY OF THE CONSUMER PROTECTION CODE TO ONLINE BETTING.
The legal consolidation of fixed-odds betting on sporting events in Brazil is the result of a relatively recent legislative process, whose normative trajectory reveals a slow, but progressive, concern with the adequate regulation of this economic activity. Since the enactment of Law No. 13.756, of December 12, 2018, which established the first legal outlines of sports betting in Brazil, the topic has gained increasing relevance in public and legal debate, driven not only by its vertiginous economic growth, but also by the social and institutional impacts resulting from its expansion.
The aforementioned 2018 regulation innovated by introducing a lottery modality into the national legal system that was previously nonexistent in the country: fixed-odds betting. According to its text, this modality consists of placing bets on real events, sporting or otherwise, with the return rate (the "odds") to be paid out in case the bettor wins beforehand. Although Law No. 13.756/2018 stipulated the need for regulation of the activity within two years—a period that could be extended for an equal period—the effective regulation of the activity only materialized years later, with the enactment of Law No. 14.790, of December 29, 2023, known as the "Bets Law".
The new law, sanctioned by the President of the Republic, Luiz Inácio Lula da Silva, represents a more robust regulatory framework, disciplining in greater detail the bases for the commercial exploitation of fixed-odds betting, by establishing objective criteria for granting authorizations, transparency standards, consumer protection mechanisms, administrative sanctions, and a tax structure focused on the collection and oversight of the activity. Law No. 14.790/2023 aims not only to allow the exploitation of a potentially lucrative economic activity for public and private entities, but also to ensure the integrity of the games, prevent abusive practices, and guarantee minimum rights for bettors.
Among the most relevant aspects introduced by the new legislation is the explicit recognition of bettors' rights as consumers, in accordance with the Consumer Protection Code (Law No. 8.078/1990). Article 27 of the new law categorically states that bettors are guaranteed all the rights provided for in the CDC, including, but not limited to, adequate information about the rules and risks of betting, transparency of the channels used to place bets, clarity regarding the criteria for awarding prizes, and the protection of their personal data, in accordance with the General Data Protection Law (Law No. 13.709/2018).
However, although the legislation points to an attempt to equate the bettor with the traditional consumer, it is necessary to recognize that there are important legal and conceptual distinctions between these two contractual poles. Despite the legal guarantee of similar rights, the contractual relationship established in the context of sports betting is not, ontologically, the same as a typical consumer relationship. In this case, it is a contract of chance—or a contract of luck—whose main characteristic is the uncertainty regarding the outcome and the existence of an economic consideration based on a future and uncertain event. Unlike a consumer contract, in which there is a clear provision of a service or supply of a product in exchange for payment, in betting, the payment of the prize depends on the occurrence of an event that is completely beyond the control of the parties.
This distinction is not merely theoretical, but has relevant practical implications, especially regarding the liability of the betting operator, the protection of the bettor's rights, and the application of the principles of good faith, vulnerability, and contractual balance. While the Consumer Protection Code (CDC) is structured on the premise that the consumer is the weaker party in the relationship and, therefore, deserving of special protection, the betting contract is based on the idea of risk voluntarily assumed by the bettor, which may limit the application of some protective guarantees typical of Consumer Law.
Therefore, a cautious and conceptual legal perspective on the regulation of fixed-odds betting is essential, recognizing its specific contractual characteristics, without, however, abandoning the need for consumer protection for citizens.
ON THE NATURE OF THE LEASE CONTRACT AND ITS DISTINCTION FROM THE CONSUMER CONTRACT
As stated above, the legislative advancement promoted by Law No. 14.790/2023, in recognizing rights for bettors in accordance with the Consumer Protection Code (CDC), must be interpreted cautiously in light of the peculiar legal nature of the betting contract. This type of contract, included in the category of aleatory contracts, that is, contracts of risk or luck, presents ontologically distinct characteristics from consumer contracts governed by Law No. 8.078/1990. This distinction is essential to understanding the limits and extent of the protection afforded to participants in the sports betting market.
In a consumer contract, the performance and counter-performance are guided by relative predictability: the consumer acquires a product or service in exchange for a certain value, expecting a functional and determined delivery. The relationship is marked by a structural imbalance between supplier and consumer, the latter being presumably in a weaker and more vulnerable position, which is why the Consumer Protection Code (CDC) intervenes to balance the relationship, ensuring, among other rights, the right to adequate information, compensation for damages, modification of abusive contractual clauses, and the right of withdrawal (art. 49).
In contrast, a betting contract involves an essential element that subverts this logic: the uncertainty of the outcome. It is a legal relationship founded on the voluntary assumption of risk by both parties, the result of which is conditional on future, uncertain events beyond the control of the contracting parties—in the case of sports betting, the performance of athletes or teams in real competitions. The betting house's service only materializes if the predicted event occurs as previously agreed, thus characterizing a quintessential random relationship.
This randomness is what, in many respects, prevents the direct application of protective mechanisms specific to Consumer Law. A prime example is the right of withdrawal, provided for in Article 49 of the Consumer Protection Code (CDC), which guarantees consumers the right to cancel contracts signed outside of a commercial establishment within seven days, with a full refund of the amounts paid. This provision aims to offer a safeguard against ill-considered decisions made under pressure or without proper access to information.
Therefore, such a distinction between the betting contract and the consumer contract was necessary not only as doctrinal terminology, but as a substantial one, with relevant practical implications for the interpretation and application of the law. By recognizing the specificity of the contractual relationship established in sports betting, the legal system avoids interpretative distortions and ensures more effective and adequate regulation of the legal and economic phenomenon under analysis.
It is within this distinctive framework that we will now examine the limitations to the right of withdrawal guaranteed by Article 49 of the Consumer Protection Code.
On the limitations of the right of withdrawal in cases of immediate consumption and instant execution.
To better delineate the contours of the inapplicability of the right of withdrawal to fixed-odds sports betting, it is essential to start from an analysis that transcends the mere literal interpretation of article 49 of the Consumer Protection Code (CDC). Although this provision guarantees the consumer the right to withdraw within seven days when the contract is made outside the commercial establishment or electronically, its application must be tempered by an analysis of the factual and legal specificities of the contractual relationship involved.
The Brazilian Consumer Protection Code (CDC) and Decree No. 7.962/2013, the latter aimed at regulating e-commerce, were conceived in a context prior to the popularization of digital products and services for instant consumption . Therefore, the automatic application of these rules to realities such as digital betting, virtual casinos, and lottery platforms may prove not only inadequate but also legally flawed.
Brazilian jurisprudence has recognized, based on the sole paragraph of Article 49 of the Consumer Protection Code (CDC), that the right of withdrawal can be restricted when the service is initiated with the express consent of the consumer and its execution is instantaneous and irreversible . This understanding is in harmony with the logic of fixed-odds betting, whose performance is consummated at the time of the bet, immediately binding the bettor to the outcome of a random event external to the will of the parties. There is no way to return the "bet" after the event has taken place, nor to reverse the effects of the contractual risk.
Law No. 14.790/2023 , in regulating the activity, confirms this logic by stipulating, in its article 27, item III, the need for the operator to guarantee the bettor clear information regarding the risks of losing the amounts wagered and the effects of pathological gambling . This requirement for transparency and information dismantles the environment of vulnerability that would justify the exercise of the right of withdrawal, highlighting the conscious and deliberate nature of the decision to gamble.
This understanding is also echoed in comparative law. Directive 2011/83/EU of the European Parliament , which governs distance contracts within the European Union, provides in its Article 16 several exceptions to the right of withdrawal, among which the following stand out:
⇒ the provision of digital content without physical support , which is consumed immediately and whose reversal is technically unfeasible;
⇒ the provision of services fully executed during the withdrawal period with the consumer's prior consent;
⇒ the sale of personalized or perishable products , the return of which would compromise the contractual logic;
⇒ and tickets for cultural or sporting events , whose specific date makes resale in a timely manner impossible.
By analogy, digital betting is equivalent to digital products or services whose consumption is instantaneous and whose random nature prevents any objective restitution. Just as the cancellation of a transaction involving virtual currencies, game "skins," or premium packages consumed immediately is not permitted, neither is the application of the right of withdrawal legally justified for bets, which are exhausted at the moment of their execution.
It is important to highlight that this inapplicability does not eliminate the need to protect the bettor . On the contrary, the legislation imposes strict information obligations, in accordance with the General Data Protection Law (LGPD) and the principles of good faith and transparency. What is being denied here is not protection, but the automatic application of a legal institute conceived for another type of contractual relationship —relationships marked by the informational fragility of the consumer and the absence of direct contact with the product or service, which clearly does not apply to online bets made with full knowledge and acceptance of the terms.
Attempting to impose Article 49 of the Consumer Protection Code (CDC) on this scenario would compromise the legal security of the sector, create operational uncertainties for service providers, and weaken a market that, although recent, already has its own regulatory framework in accordance with international standards. This not only distorts the purpose of the right of withdrawal but also generates an environment of instability for consumers and operators, to the detriment of mutual trust and contractual predictability.
Therefore, although the bettor may, in certain aspects, be equated to the consumer with regard to minimum guarantees — such as the right to information, data protection and the prevention of abusive practices — the contractual logic governing online betting is of a different nature , requiring specific and differentiated legal treatment.
In short, the readjustment of the right of withdrawal to the nature of contracts of chance , such as digital betting, does not represent a restriction of rights, but rather a systematic and contextualized interpretation of consumer protection legislation. It is a necessary step to ensure a balance between protection and responsibility, contractual freedom and transparency, legal certainty and innovation.
ON THE IRREFUNDABILITY OF VOLUNTARY BETS AND THE LEGAL EXCEPTIONS PROVIDED FOR
As discussed in previous sections, the betting regulated by Law No. 14.790/2023 is incorporated into the Brazilian legal system as a contract of aleatory nature, with instantaneous execution and immediate consumption. This classification implies important legal consequences, one of which is the impossibility of restitution of the wagered amounts based on the right of withdrawal. However, beyond the denial of this refund from a consumerist perspective, the Brazilian Civil Code itself , in its article 814 , provides legal support for this argument.
According to article 814, "no reimbursement can be demanded for amounts voluntarily paid for legally permitted games or bets." In other words, amounts spent voluntarily by the bettor, in lawful and regular bets, are not subject to return , consolidating the irreversibility of the legal relationship established between the bettor and the betting house. This provision reinforces the definitive nature of the performance carried out within the contractual framework of chance, aligning with the principles of autonomy of will and assumed risk, inherent to this type of contract.
However, in a contract of chance, there are legally recognized exceptions to the rule of non-restitution, as they violate fundamental assumptions of contract formation, such as the following situations:
⇒ Technical error on the platform , such as the improper linking of a bet to an event different from the one chosen by the bettor, which constitutes an objective defect in the execution of the contract and may be classified as a failure in the provision of the service (article 14 of the Consumer Protection Code).
⇒ Misleading or incomplete information regarding the terms of the bet, odds, payment rules, among others, violates the duty to inform as stipulated in both Article 6, item III, and Article 31 of the Consumer Protection Code (CDC). In these cases, the contract may be subject to review or annulment.
⇒ Fraud or manipulation of the sporting event , especially when there is participation or collusion by the betting house, directly or indirectly, characterizing malice or bad faith. Fraud undermines legitimate randomness and compromises the social function of the contract.
⇒ Bets placed by minors or unauthorized third parties , such as in cases of misuse of bank details or fake profiles, are situations that violate principles of legality and objective good faith. Here, in addition to restitution, civil and administrative sanctions may be applied to operators, including based on the General Data Protection Law (LGPD).
Note that, in all these scenarios, the legal basis for any requests for restitution will not be the right of withdrawal, but rather defects in consent (articles 138 to 144 of the Civil Code) , liability for defective service provision (article 14 of the Consumer Protection Code) , or compensation for breach of contractual and legal duties (article 20 of the Consumer Protection Code) . In other words, this is understood more as a need to annul the legal transaction made through the bet, than as an ephemeral interpretation or request for withdrawal.
This distinction is of fundamental importance because it is not a matter of retraction due to subjective dissatisfaction, but of compensation for contractual wrongdoing or technical defect , elements that break the validity structure of the bet as a random contract. The legislator, in making exceptions for these cases, recognizes that the protection of the bettor must be adjusted to the balance between contractual freedom and objective good faith.
Thus, we reaffirm that the legal nature of the betting contract prohibits the use of the right of withdrawal as a mechanism for returning the amount paid , but allows, on the other hand, the possibility of reimbursement in duly justified and legally grounded cases.
FROM JUDICIAL DECISIONS AND DOCTRINAL POSITION: THE REJECTION OF THE RIGHT OF WITHDRAWAL IN DIGITAL BETTING
The doctrinal and jurisprudential construction regarding the right of withdrawal in digital sports betting is still incipient in the Brazilian scenario, but it already demonstrates a clear and coherent trend: the refusal to apply article 49 of the Consumer Protection Code (CDC) to contracts of a random nature, whose execution is immediate and irreversible. The courts have recognized that, once the bet is placed in a regulated environment, with express acceptance of the terms and full knowledge of the risk, there is no legal basis for its retraction , even if the contract was made electronically.
This understanding rests on the observation that a bet, unlike products or services with the possibility of refund or cancellation, is consummated at the moment of its formalization , immediately binding the bettor to the outcome of a future and uncertain event. Allowing regret after the event has occurred, especially in the face of an unfavorable outcome, would transform the contract of chance into a unilaterally advantageous relationship , violating the principles of objective good faith and contractual balance.
Several court decisions clearly illustrate this principle:
APPEAL – MONETARY ACTION – FREE LEGAL AID – If free legal aid had already been granted in the first instance, without notice of revocation or appeal by the opposing party, there is no reason to revoke the benefit due to the filing of an appeal, if there is no indication that the party has recovered its financial capacity – GAMBLING DEBT – UNENFORCEABILITY – In the case of amounts delivered to knowingly place sports bets, even under the name of "investment," the collection is not applicable, pursuant to the provisions of Article 814 of the Civil Code – Precedents – Claim that must be dismissed – Appeal granted.
(TJ-SP – AC: 11099834420198260100 SP 1109983-44.2019.8.26.0100, Rapporteur: Hugo Crepaldi, Judgment Date: 09/29/2022, 25th Chamber of Private Law, Publication Date: 09/29/2022)
CIVIL APPEAL – EXECUTION – CHECKS – GAMBLING DEBT – NATURAL OBLIGATION – DOES NOT REQUIRE PAYMENT – ART. 814 OF THE CIVIL CODE – IMPOSSIBILITY OF JUDICIAL COLLECTION – NULLITY OF CREDIT INSTRUMENTS. The obligation represented by the checks is unenforceable, given that it is a gambling debt (a natural obligation) that does not require payment, even if represented by a credit instrument, according to the interpretation of art. 814 of the Civil Code.
(TJ-MS – Civil Appeal: 0842360-40.2019.8.12.0001 Campo Grande, Rapporteur: Judge Julizar Barbosa Trindade, Judgment Date: 08/24/2021, 2nd Civil Chamber, Publication Date: 08/30/2021)
JUDGING BODY: 6th CIVIL CHAMBER Civil Appeal No. 0054664-41.2023.8.17.2001 Appellant: VICTOR HENRIQUE DE ARAÚJO CAMPOS Appellee: BLAZE APOSTAS ON-LINE Court of Origin: Section B of the 33rd Civil Court of the Capital District Rapporteur: Judge Márcio Fernando de Aguiar Silva SUMMARY CIVIL APPEAL. ORDINARY ACTION. COLLECTION OF AMOUNTS ARISING FROM ONLINE BETTING. LEGAL IMPOSSIBILITY OF THE REQUEST. ARTICLE 814 OF THE CIVIL CODE. EXPRESS PROHIBITION OF JUDICIAL COLLECTION OF DEBTS FROM GAMES AND BETTING. EXTINCTION OF THE PROCESS WITHOUT RESOLUTION OF THE MERITS. ARTICLE 485, VI, OF THE CPC. JUDGMENT UPHELD. APPEAL NOT GRANTED. I. Ordinary action filed with the objective of collecting amounts arising from bets placed on a digital platform operated by a foreign company. II. Article 814 of the Civil Code expressly prohibits the judicial enforceability of debts arising from games and bets, which applies directly to the case under analysis. III. The discussion about the regulation of online betting in Brazil does not alter the current legal prohibition, especially in relation to unregulated foreign companies. IV. Extinction of the process without resolution of the merits, based on article 485, VI, of the Code of Civil Procedure, due to the legal impossibility of the request. V. Judgment upheld. Appeal not granted. JUDGMENT Having reviewed, reported and discussed these case files no. In case number 0054664-41.2023.8.17.2001, the Judges of the 6th Civil Chamber of the Court of Justice of Pernambuco, unanimously, agree to DENY the appeal, in accordance with the opinion of the Reporting Judge, the summary and the attached stenographic notes, which form an integral part of the judgment. Recife, dated and electronically signed. Márcio Aguiar, Reporting Judge.
(TJ-PE – Civil Appeal: 00546644120238172001, Rapporteur: MARCIO FERNANDO DE AGUIAR SILVA, Judgment Date: 09/10/2024, Office of Judge Márcio Fernando de Aguiar Silva (6th CC))
CIVIL APPEAL – DECLARATORY ACTION OF A LEGAL TRANSACTION – Assertion of investment of money and promise of profit – Lack of payment – Indication that it is a contract for gambling and betting on American football games – Natural Obligation – Impossibility of judicially demanding the return of the invested amount – Appeal granted.
(TJ-SP – AC: 10118918620198260114 São Paulo, Rapporteur: Almeida Sampaio, Judgment Date: 08/31/2023, 25th Chamber of Private Law, Publication Date: 09/05/2023)
These rulings consolidate a legal understanding that, although recent, tends to become the majority view: the right of withdrawal cannot be invoked as a subterfuge to recover amounts voluntarily wagered after failing to obtain a winnings . This attempt constitutes not only a distortion of the protective function of the Consumer Protection Code, but also an affront to the very logic of the betting contract.
What is permitted, as already discussed in a previous section, are specific exceptions where there are defects in consent or failures in the provision of the service, such as in the following cases:
Technical error on the platform ;
⇒ misleading information regarding the terms of the bet;
Proven fraud ;
⇒ or the placing of the bet by a minor or legally incapacitated person.
In the absence of these exceptional conditions, it is evident that the attempt to invoke Article 49 of the Consumer Protection Code (CDC) to justify the return of wagered amounts must be rejected . The digital betting contract is instantaneous, random, and consummated with the full consent of the user . Thus, judicial decisions have reaffirmed that the right of withdrawal does not apply to this type of relationship , under penalty of distorting the legal security of the sector, fostering opportunistic litigation, and compromising the integrity of the betting market, which already has a clear and effective regulatory framework.
National jurisprudence, although still in its formative stages, already presents firm precedents denying the possibility of returning wagered amounts based on Article 49 of the Consumer Protection Code (CDC), reinforcing the doctrine that distinguishes betting contracts from traditional consumer contracts. The application of Article 814 of the Civil Code, in this scenario, plays a central role in recognizing that, once a bet is placed in a legal and regulated environment, the amounts voluntarily paid are not recoverable.
Therefore, in conclusion, the regulation of fixed-odds sports betting in Brazil, consolidated by Law No. 14.790/2023, represents a significant advance in structuring a rapidly expanding market, balancing economic interests and the protection of the bettor. However, the aleatory nature of betting contracts, distinct from traditional consumer contracts, imposes clear limitations on the application of the Consumer Protection Code, especially regarding the right of withdrawal provided for in Article 49. Brazilian jurisprudence and doctrine reinforce that, except in cases of vitiated consent, technical errors, fraud, or bets placed by incapacitated individuals, the amounts voluntarily wagered are not subject to restitution, as stipulated in Article 814 of the Civil Code. This approach ensures the legal security of the sector, promoting an environment of trust and predictability for operators and bettors, while preserving the essence of the aleatory contract and the principles of good faith and autonomy of will.
(*) Rodrigo Gonçalves is a lawyer at Daniel Sintônio Advocacia and Legal Advisor for matters at BPX Bets Sports Group (Vaidebet/Betpix365/Obabet)
