Two recent labor court decisions addressed the legality of cash poker games.
The Regional Labor Court of the 18th region (Goiás), in analyzing labor claim no. 0011220-49.2017.5.18.0009, considered the employment contract between the plaintiff (“dealer” or “croupier”) and the defendant (poker house) to be null and void and, consequently, the plaintiff's requests for payment of various labor benefits, including the integration of amounts paid as “trick cash” by the dealer into the salary, were unfounded.
The Court reasoned that, although the poker game itself is not considered a game of chance, the fact that there are bets in money characterizes a criminal offense (under the terms of art. 50, § 3, item “c”, of Decree-Law No. 3.688/1941) and, consequently, the illegality of the legal transaction, and the contract entered into between the parties is not protected by the Consolidation of Labor Laws.
In turn, the Regional Labor Court of the 10th Region (Federal District and Tocantins), when analyzing labor claim No. 0000630-83.2018.5.10.0014, in which the plaintiff ("sanger") sought the reversal of the dismissal for just cause applied by the company (poker house) and the consequent payment of severance pay, not only found the fact that betting was involved to be unlawful but also considered the poker game to be "gambling" and, therefore, classified as a criminal offense. Given the unlawfulness of the activity, in the eyes of the Labor Court, the employment contract between the parties was considered null and void, and all claims were dismissed.
These decisions demonstrate how controversial the issue of poker games remains in the eyes of the Labor Courts, despite the majority of judgments—in all other spheres—considering poker legal. The main difference between games of chance and poker, according to favorable decisions, is that poker relies more on the player's skill than on luck. For this reason, poker is already recognized as a sport, even having its own confederation and being duly registered as such with the Ministry of Sports. Furthermore, an expert report from the São Paulo Institute of Criminalistics has already recognized its non-contraventional nature and, therefore, its legality. Similarly, renowned expert Ricardo Molina issued an opinion attesting that poker is not a game of chance, demonstrating—including mathematically—that skill is the predominant factor in the game.
Still, labor courts frown upon the issue of cash poker—or "cash games"—in sports jargon. In our view, even cash poker is legal, as it involves bets not made by outsiders, but by the player involved in the competition, based on technique and skill. This lack of externality, therefore, distinguishes cash prizes awarded to poker players from bets traditionally considered "gambling," which are illegal under Brazilian law.
Even though the aforementioned judgments have, in a way, favored the companies involved in the final dismissal of the actions, this has occurred for the wrong reasons, as there is a broad technical and legal framework to the effect that poker played for money is not an illegal activity, and therefore, employment contracts entered into between employees and the companies that operate this activity are lawful.
