Poker and Brazilian Labour Courts

Published 30 August 2019 by Montgomery & Associados

Two recent decisions issued by Brazilian labour courts have reviewed the legality of poker cash games.

The Regional Labour Court of Appeals of the 18th Region (Goiás), when reviewing labour claim No. 0011220-49.2017.5.18.0009, considered the employment agreement entered into between the Plaintiff (“dealer”) and the Defendant (poker establishment) to be null and void and, consequently, thereby rejecting the claims for various employment-related entitlements and the repercussions of amounts paid as tips (“caixinha”) in the dealer’s salary.

The Court considered that, while poker itself is not considered a game of chance, the fact that cash bets were involved characterizes a criminal contravention/misdemeanour (under item (c) of paragraph 3 of Article 50 of Decree-Law No. 3,688 / 1941) and, consequently, the underlying business is illegal and the employment agreement entered into between the Parties not supported by the Brazilian Consolidation of Labour Laws.

Further, the Regional Labour Court of the 10th Region (Federal District and Tocantins), when reviewing labour claim No. 0000630-83.2018.5.10.0014, in which the Plaintiff (“sanger”) claimed the reversal of the termination with cause applied by the Defendant (poker establishment) and the consequent payment of shortfalls in severance pay, not only considered the fact that there were cash bets involved, but also considered the game itself as a game of chance, thereby considering the same a criminal misdemeanor. In view of the unlawfulness of the activity, in the eyes of the Labour Court, the employment agreement entered into between the Parties was considered null and void, and all claims were deemed groundless.

These decisions show how controversial the issue of poker games is in the eyes of Brazilian Labour Courts, despite the fact that most judges – in all other spheres – consider poker to be lawful. The main difference between games of chance and poker, according to favourable decisions, is that the result of a game of poker depends more on the player’s skill than on his/her luck. For this reason, poker is already recognized as a sport, even having its own confederation and is duly registered as such with the Brazilian Ministry of Sport. Further, an expert report issued by the Forensic Institute of São Paulo scientifically recognizes such characteristics and, therefore, its legality. Moreover, renowned expert Ricardo Molina has also issued an opinion attesting that poker is not a game of chance, demonstrating – even mathematically – that skill is the preponderant factor in the game.

Notwithstanding, the Labour Courts still appear to frown upon cash poker – or “cashgame” – in sports terminology. In our view, even real money poker is lawful as it is not a bet made by people outside the game but by the player him/herself involved in the competition based on technique and skill. The absence of exteriority, therefore, misrepresents the prize money to poker players of bets traditionally considered as “unlucky”, which are illicit under Brazilian law.

Although the above-mentioned decisions have, to a certain extent, favoured the companies involved benefiting from the final rejection of the labour claims, this has occurred for the wrong reasons, as there are grounds – both legal and technical – confirming that cash poker is not an illegal activity, therefore, the employment contracts entered into between employees and companies that exploit this activity are lawful.