These players are known as athletes, in their institutional and professional regularity as soon as an administrative body of this area is recognized by the Ministry of Sports in the country of its performance – apart from the governmental recognition by other Ministries such as the Ministry of Culture in certain countries – or when, concomitantly to this, there is also the recognition of Electronic Sports and its regulation. Parallel to this, where there is no such recognition or creation of this recognized entity to administer this sport in the national sports system of the country, the players are usually known by other denominations as "cyber-athlete", or even "gamers", terms that fall into disuse when the professionalization and regulation of the category, to fit into rights and duties that this class, that of athletes, legally requires. With the recognition of the Brazilian Confederation of Electronic Sports by the Ministry of Sports of Brazil (National Secretariat of High Performance Sports), and being the same officially within the National Sports System, we will treat here the player only as "Athlete".
Also from this article, we will deal with the writing of the English term "Electronic Sports" as just "Esports or esports", defined by the Associated Press in its Associated Press Style Book, since May 2017 and we will no longer duplicate the writing for Esports and "e-Sports".
Regardless, these are the athletes who perform their work on behalf of sports/commercial organizations that are usually legally constituted companies. In the case of Brazil we have legally and taxarily as most used models: Sociedade Civil Limitada (S/C Ltda.), Empresa Individual de Responsabilidade Limitada (EIRELI), Microempreendedor Individual (MEI), Empresário Individual e LTDA (EI), Micro Empresa (ME), Empresas de Pequeno Porte (EPP), divided here between classification of companies and types of taxation, and parallel to these, we have the Sports Clubs (such as Flamengo, Corinthians, Grêmio or even outside Brazil such as Real Madrid and Barcelona among others), constituted as Non-Profit Entities, and in addition to these we have the companies that develop the games and/or sponsoring companies that can by themselves constitute electronic sports teams and still invest in teams that belong to their own championship calendar.
With regard to the subject of Traditional Sports Clubs (traditional tax and legal model) and Club-Companies, and the aspects of the Brazilian Constitution with respect to Sport, Zico Law 8672/93, Pelé Law 9615/98, Law 9981/2000, MP 2011-9 of 26/06/11, Law 10671/03, Law 12395/11 and Articles 1039 and 1092 of the Civil Code, in addition to the issues involving majority shareholders, quota holders, smaller partners and sponsors, and Leagues in North American standards and investments in training of athletes, we will deal with in a next article to be published in early March 2018.
What we can advance here in this article, on the subject of the paragraph above, is that there is no relationship of success / improvement for sports clubs that have become Club-Company and neither same relationship for teams that have already been created in the Club-Company model, which gives success to each of them, regardless of the model, is qualified management in all areas and only that. But the Club-Company model is very uncharacterized by regulation that makes it be understood literally and completely, what was presented in Law left many gaps in understanding and application, and to this day there is no consensus on model to follow. However, as already said, we will address the subject in another article.
Brazil in the year 2013 took a significant leap in its Esports scene due to the growth of the online game "League of Legends". The routine of these professional athletes (players) is quite heavy. The maximum pick-up time is 11 a.m. After the first meal of the day, the expedient is up to 12 hours watching matches, studying opponents and fighting fights. This is this, as already discussed in the article previously written under the title "Esports as Regular Sports, its progress and its regulation and officialization in Brazil and in the World" and in English under the title of "Why Esports are Regular Sports and other Issues", both available on Linkedin and on the website of CBDEL, PAMESCO and WESCO, of a sport practiced under strict application of methods and resources both physical, mental and psychological that fit perfectly into the sport of high performance.
Although the modality is not yet recognized as a sport in Brazil, but again here we repeat already having the Brazilian Confederation of Electronic Sports the recognition and certification of the Ministry of Sports (especially by SNEAR, read articles "CBDEL is Certified and homologated in the Ministry of Sports of Brazil" and "Legal Vision of Certification and Recognition of CBDEL" on Linkedin and related websites to understand what this means and the impact for the electronic sports environment in Brazil), the advancement of professionalization is undeniable. Then the big question arises about the recognition of the Signed Portfolio of the athletes (players) involved in this complex structure.
Even though, esports is a recent sport modality, our Brazilian legislation has not addressed the issue. Very yes, it is waiting for the parliamentary results, for the propositions of 4 bills of Law specially made for the Electronic Sport, they are, Federal Law Project 3450/2015 (Chamber of Deputies), Federal Law Project 7747/2017 (attached to PL 3450/2015), State Law Project 1512/2016 (São Paulo), and Federal Senate Bill 838/2017. Three of them, with the exception of PL 7747/2017, drafted and formatted by the president of CBDEL, Mr. Daniel Cossi and standardized and presented by the respective Federal Deputies, State Representative and Senator. Other State Bills of the same content and objective, are already presented in other states.
Returning to the main subject, currently in market practice, the contract agreed between the parties is a contract for the provision of services, civil contract of sponsorship or contract of employment. Of these, the least favorable to the athlete and that, taking into account the guiding principle of Labor Law, which is the PRIMACY OF REALITY, we solemnly believe that it is the civil contract of sponsorship, and this type of contract has a relationship with the "team". This is because, in the contractual relationship there is subordination to the employer, performed in a habitual way through a routine of daily training of at least 8 hours, for a salary and that can only be exercised by that particular athlete (player) hired. In labor matters, it matters what happens in practice, more than the documents show. According to Plá Rodriguez, "it means that in case of disagreement between what occurs in practice and what arises from documents and agreements, preference should be given to the former, that is, to what happens in the field of facts."
For a service contract, the rights and duties of the contractor and the contractor are established, and by common agreement, entered into through the formalities of signatures, registration of the contract in a notary and other legal steps that are necessary, known by any lawyer. It must absolutely be the guarantee to the service taker that, if all the conditions that were once agreed in the contract are fulfilled, the result of the services provided will be the guarantee of the expected expectations. It must also ensure that the contracted party (athlete), is not involved and takes part in possible lawsuits dealing with the contractor (team), the default of compliance with the agreement by the contractor and so on.
Another point is that every service contract must conclude the period in force of these agreed, beginning and end of the services provided or establish indefinite time unless common agreement of both parties for its termination.
It is important to note that, whether by contract or continuous services, we can not enter into contracts for the provision of services that characterize a labor relationship, and that thus establish a labor relationship with the contractor, being then contrary to the CLT.
Already by the employment contract (to have the "work card signed"), all the rights duties and other guarantees for both parties come from conventions with class organs, by our Constitution and by the Consolidation of Labor Laws (CLT), here we have the labor law and in the previous one (Service Provision Contract) we have the civil right (Civil Code).
However, as we have already said, we have what jurists usually treat as the PRINCIPLE OF THE PRIMACY OF REALITY. This means that: if you meet all the requirements of an employee (CLT), in fact it will matter little what type of contract concluded between the athlete and the team, since you will have all the guarantees provided by Law. Below are some features side by side:
And according to the reform in the Labor Law made in 2017, there are more ways for negotiations between employees and employers, starting from a perspective that the negotiated prevails over the legislated. These possible agreements will have legal value on matters such as overtime, layoffs, bank hours, vacation and work break among other points. These reforms came at a time when it (the Labor Law) must adapt to our technological reality and also marketing and social, since today we have tools such as Whatsapp, WeChat and also the home office, and these more horizontal jobs, and there comes a point that deserves importance because there is the issue of Gaming Houses - spaces used by athletes where they celebrate both their training and their regular daily experience - are more in use and should be considered in the context of the Labor Law. There is in horizontal work a thin line that separates the hours of work, training, and leisure practiced in the same place, by the same tools of service, training and leisure. Above all, the new Labor Law has greatly benefited the relationship between teams and athletes of electronic sports in the sense that there is now the prevalence of formal agreement between the parties and greater understanding of each situation. Now there is less chance of Bad Faith Litigation and even the punishability of the one who promoted it, when proven.
It should be observed in every contract, regardless of its modality, the correct proposition of the final activity that is the participation in high performance championships that requires a lot of skill and training, this in itself registers that far beyond the physical wear, these players suffer too much the mental exhaustion, because it requires a lot of concentration and reasoning allied to an emotional control. They are required to meet several goals.
It follows from article 3 of the CLT that any individual who provides services of a non-casual nature to the employer, under the dependence of the employer and for a salary, is considered an employee. The illustrious author Sérgio Pinto Martins in his well-known work says: (MARTINS, Sergio Pinto. Labor law. 17th ed. São Paulo: Atlas, 2003)
"The Employment contract, in fact, is already a legal employment relationship, even when there is provision of services, because it generates rights and obligations. If for the existence of the employment relationship it is necessary an adjustment, even if verbal or tacit, even if not expressed, there is an interaction between the contract and the relationship and one cannot subsist without the other. The relationship is the effect of the contract and not the cause."
The employment contract is distinguished from several other contracts of a civil nature in that there is necessarily the participation of a natural person as an employee. According to the predominant theory, the labor contract has a contractual nature and thus, the existence of the contract will occur with the provision of services, by the employee, followed by remuneration, by the employer, characterizing even with the tacit adjustment.
It should be noted that one of the requirements of the contract is to perform the work in "Training Centers" assisted by coaches, psychologists, nutritionists, among other professionals. It is imperative to register that the athletes of the electronic sport are subject to the application of punishments or other penalties if they fail to comply with any clause provided for in the agreement contract. It is assumed that the athlete does not have AUTONOMY, is in clear subordination to the contracting company.
Once all the requirements listed in article 3 of the CLT are met, all rights will be mandatorily recognized as: Annotation in the Portfolio, salary, social security payments, Vacation plus one constitutional third, 13th (thirteenth), Guarantee Fund.
In addition, with the recognition of Esports as a sport, the Pelé Law (Law 9.615/98), under the terms of article 28 provides that the activity of the professional athlete is characterized by the special contract of sports work. Hence the importance of the work that CBDEL has been developing for years together with the competent bodies in Brazil, so that the recognition is given in a definitive way. The bills mostly drafted by the president of the CBDEL, at the Federal level (Senate and Chamber of Deputies) and at the State level (Legislative Assemblies), meet these needs. As we have already said, the CBDEL Certification by the ME, especially by the National Secretariat of High Performance Sports is already a sign that this path is being adopted.
However, we still cannot, even if the items provided for in the Pelé Law are already included in the work contracts of some electronic sports players with their teams, count on the defense of electronic sports athletes under the guarantees and other specifications that come from this Law, because electronic sports athletes are not officially recognized as athletes, for our Legislation, and therefore cannot enjoy anything that the Pelé Law provides.
Topic of greater importance in Esports, is also the participation of minors (between 16 and 18 years of age), in teams and other competitions said to be of professional scope. In addition there is the distinction between educational, amateur and professional electronic sports, this in any sports category of the National System of Brazilian Sport.
Both the CLT and the Constitution dictate on the work of the minor. It is also necessary to consider the Statute of the Fan and the Pelé Law and the Statute of the Child and Adolescent. By the CLT and Constitution is forbidden any type of work for children under 16 years of age, unless it is done as an apprentice (Apprenticeship Contract).
Between 16 and 18 years of age, only administrative or technical work as long as it is not practiced in places considered unhealthy. And in these cases there is a whole nuance of changes, such as the workload (working hours), barred its extensions and there are still the compensations in the working hours in relation to what has already completed in school education (yes only if the minor has completed high school he can have a working day of eight hours, and even if they have in these hours, computed those of theoretical learning, otherwise the limit is six hours), minimum guaranteed wage per hour, coincide vacation period at work with school holidays (if they are still attending teaching), among many other particularities.
In the case of a non-professional athlete in training, over fourteen years of age, may receive financial aid from the training sports practice entity (made only and only by Clubs Certified as Trainers of Athletes duly approved both by CBDEL and, for example, by the Brazilian Confederation of Clubs, achieving with this until obtaining subsidies from the Federal Lottery and other various investments of individuals, and also the Sports Incentive Law itself – which is not specific to trainers of athletes, but permeates amateur sport – in the form of a learning scholarship freely agreed upon through a formal contract, without generating an employment relationship between the parties. We will cover about Athlete Training Clubs in the article that we will publish about Club-Companies and related subjects already mentioned in a paragraph at the beginning of this article.
It is very important to understand that we have to have basic categories in Esports, but the age barrier (only over 14 years old), is still an important point to be observed. Basic training is crucial for us to train new talents and discover professionals who will make a difference in the very near future. Training centers of the CBDEL and the affiliated Federations and LNEE, will receive children from nine years of age in special conditions and only in educational and inclusive electronic sports.
Nevertheless, and with all certainty, it is extracted that both by the CLT or Pelé Law the basic requirements that fulfill the labor rights of athletes are evident.
Countries such as South Korea, the United States, Finland, Russia already recognize and grant all the rights to the Esports athlete, which were already offered and applied to athletes of other modalities. Although we are not dealing in this article with all the aspects that permeate an athlete, there are points such as ARENA RIGHT and IMAGE RIGHTS that should also be taken to negotiation.
An extraordinary fact is the inclusion of Japan as a country that recognizes the sport as a professional. There was a huge obstacle to this recognition by virtue of a Law that had been in force in the country since the 80's that prevented the realization of professional gaming championships as a way to prevent the performance of organized crime that used gambling to illegally move money. Aiming at the progress of Esports, the Japanese government, with an eye on the Olympics in 2024, has sought through the legislature to amend the law that has been in place for decades. Thus, with the amendment of the Law, championships with high prizes can be officially established. With this advance was legally recognized the issuance of professional licenses for the best players of the tournament.
It should be added that in the first week of February this year the Esports scene in Japan announced the JeSU (Japanese Esports Union), which regulates gaming competitions in the country. This body is already in contact with WESCO (World Esports Consortium) for joint negotiations and activities regarding the standardization of international electronic sports, its application through resolutions of the International Court of Esports, as well as the International Esports Dispute Resolution Chamber among other applications. Through it, from JeSU, companies can nominate competitors to earn a "professional player" license and compete professionally in the country. The new organization — which brings together the Japan e-Sports Association, the eSports Promotion Organization and the Japan eSports Federation — will be tasked with promoting the growth of esports in Japan. It is chaired by the presidents and CEOs of Konami, Capcom and other companies. JESU will issue professional licenses to competitive players in Japan, which it hopes will boost the development of the industry in the country.
Following the movement of the professionalization of the modality, the Riot Games in 2017 determined as mandatory the formalization of the Work Card signed for all athletes who are part of the teams that participate in its North American and European competitions. The CBDEL in Brazil will propose stages and period of adaptation to teams that wish to fit into models of sports clubs among other proposals, but nothing will shake the Esports scenario in any current area.
In the American continent, making these times and standardizing Electronic Sports Laws, Courts of Sports Justice of Electronic Sports, Departments of Health and Development, Anti-Doping and Arbitration Commissions, Family, Education and Athletes, among many other aspects, we have PAMESCO – Pan American Confederation of Electronic Sports, which has in its members all the effort to make the electronic sports scenario homogeneous, its practice and its professionalization. Current members of PAMESCO are: USA (AMCOES and University and School Leagues), BRAZIL (CBDEL and National League of Esports), MEXICO (FEMES and its National League of Esports), PERU (APDEV), COLOMBIA (ACDEV), ARGENTINA (DEVA and ADEEMA), ECUADOR (Master GAME), CHILE (ACHDEV). PAMESCO is currently in contact and negotiations with UNESCO, USAN – United South American Nations and OAS – Organization of American States.
On the global stage we have WESCO – World Esports Consortium, with the participation of 29 countries and their esports administration entities, as well as companies from various sectors that interact in some way with Esport, including some developers. It is also part of WESCO, under its seal PAMESCO, and also fights WESCO for the development and standardization of electronic sports in its various areas, departments and systems. WESCO is currently in the beginning of contact with the IOC – International Olympic Committee, IPC – International Paralympic Committee and UN – United Nations among other regional bodies.
Faced with all the world scenario, one can no longer speak of civil contract or informality in the provision of service. For the advancement of the sport in Brazil, teams that do not sign the work card of their athletes may bear the sanctions provided for in the Labor Law, when triggered in court.