Very important to discern between electronic sport and electronic gaming. The former is related to a range of areas, rights and duties in the formation of the citizen, while the latter is linked to only a certain and very specific area of citizen law, which even but not separately, leads us to other areas of commercial paths that in no way infer in the formation of the citizen, but which are perfectly legitimate and necessary while within this area cited, that is, the commercial.
The sport in Brazil, the institutional with the purpose of training the citizen and imbued with public policies was created in 1937, by the institution of the division of Physical Education that was hierarchically subordinated to the Ministry of Education and Culture. And that says a lot already of what we're talking about in this article. Over the years and the practice of sport in various categories, and the engagement of the citizen in these practices that were initially for entertainment, but that over time had a greater impact on social inclusion, and education in addition to improving the quality of life, sport was becoming a Social Category, an instrument of citizen training and had its role more specified when the creation of the Ministry of State Extraordinary of Sport in 1995, where our football athlete, Pelé, became the ultimate authority, as Minister of Sport. Even Law 9615/98, the year in which Pelé leaves the Ministry of Sport, has more commonly his name replaced by "Pelé Law".
In 1998 the Ministry of Sports and Tourism was created, and there is the Secretariat of Sport of the Ministry of Education, a body that gave technical support to the Ministry of Sports and that had been detached from this role in 1995 when the creation of INDESP – National Institute of Sports Development, which in turn was linked to the new Ministry of Sports and Tourism, until 1999. In 2000 INDESP is abolished and the National Secretary of Sport is created.
In 2003 the portfolios of Education and Sport are separated and become independent, logically the National Secretariat of Sport is subordinate to the Ministry of Sport. It is important to note that at that time the Ministry of Sports had exactly the following secretariats: National Secretariat of High Performance Sports (for international competitions and the Olympic movement – SNEAR) / National Secretary of Sport, Education, Leisure and Social Inclusion (SNELIS) / National Secretariat of Football and Defense of Fan Rights (SNFDT) and Brazilian Doping Control Authority (ABCD). All directly subordinated to the Ministry of Sport.
It should be noted that here are already the indications and civic and constitutional values intrinsic to the management format of Brazilian sport and in the path of citizen formation. There is in NO way any relationship between the commercial or Commercial Secretariat of Sports related to the promotion and use of the same in the general or specific context of any use of the national sport. This is entitled only to the promotion and commercial deliberations developed naturally in any sporting category, of any area or sport, and even with regard to education, culture and any other areas that make up our lives. Something natural and due.
The difference is that here we are talking about public policies, here we talk about them for the FORMATION OF THE CITIZEN!
In 2019 the Ministry of Sports is transformed into the Special Secretariat of Sport, subordinated to the Ministry of Citizenship, even greater the indication and understanding that SPORT is yes, unequivocally and plurally, an essential and necessary tool in the formation of the citizen, hence even the name of this folder.
Still within the hierarchical core of Brazilian sport, as national administrators of each category we have but the Confederations, whose affiliates, the State Federations, play the role of coordinating, fostering and creating public policies together with the community, and apply them according to regulations and statutes previously and duly approved and in accordance with Laws and Regulations arising from the largest body of Brazilian sport, namely, the Special Secretariat of Sport and the Ministry of Citizenship and, respectively, the State and Municipal Sports Secretariats. Although these entities are legally constituted as entities of PRIVATE law, they must and need to work together with government agencies due to their characteristic of fostering and applying public policies for the sport of their respective categories, and in parallel to this we still have the Olympic Movement, which is also governed by the Confederative hierarchy of administrative representation, That is, it works with an international that in turn recognizes and legitimizes a national that has been duly registered and legitimized nationally by its national sports body, and thus develop the work of Olympic promotion, with necessary participation and totally aimed at high performance athletes.
These entities are necessary so that athletes have, in addition to their duties as citizens and sportsmen, their rights guaranteed and thus can act professionally in the sports market. This professionalism is given being certain that both, the professional athlete and the non-professional athlete, are duly regulated by Law No. 9,615/98 and amendments, a law known as the Pelé Law. Such a differentiation must be made in order to clarify what effectively characterizes a professional athlete and a non-professional athlete, in contrast to what Article 3 of the CLT says. Here we will make an aside, and we are gradually entering the subject of this article, because this point at which we have arrived requires a certain special attention. Non-professional athletes are at all governed by the extravagance of Laws, and professional athletes are governed by the Sports Law except when they do not fit into it and therefore will be governed by the CLT, including we have to take special care to Article 3 Consolidated making counterpoint and distinction so that sports rules are not confused with legal employment subordination.
Let's transcribe the articles that govern this feature:
items I and II of the sole paragraph of article 3 of Law No. 9,615/98 amended by Law No. 9,981/2000, which thus describes sport in our country, in textual:
Article 3 - Sport may be recognized in any of the following manifestations:
I - ...................................................................................
II - ...................................................................................
III - ..................................................................................
Sole Paragraph - Performance sport may be organized and practiced:
I - in a professional manner, characterized by the remuneration agreed in a formal employment contract between the athlete and the sports practice entity;
II - in a non-professional way, identified by the freedom of practice and the absence of an employment contract, being allowed the receipt of material incentives and sponsorship.
Thus, the characterization of employment relationship the existence of a formal employment contract, which characterize a professional athlete, must exist, otherwise it will be a non-professional athlete, as is also corroborated by article 28 of Law 9615/98, because the fact that there is no formal employment contract, registered in the respective federation or confederation prevents the recognition of the professional athlete, in legal terms. Even though it is also clear the description of an article that deals with the right to free association with entities other than sport, on the part of the practitioner including and especially.
So here we have already answered the ever-present question: should we have Confederation and Federation? Just to use the Legal terms, yes! And the subordination and administration of the athletes, their valuation and their career is intrinsically and legally linked to that of their respective Federations and Confederations, otherwise there is not even the possibility of him being considered as "professional" because there will be no registration and contractual accompaniments by the due entities of administration and entity of practice, since in our system even the entities of practice must exist by the due record of their existence not only by the Civil means but within what governs the regulations and statutes of each entity of administration of the respective sports areas to which this entity of practice will be subordinate.
However and for the purposes of the national electronic sport of Brazil, it is also up to the athlete his total and primordial freedom to practice both the institutional electronic sport (professional by Sports and Labor Legality), as well as the practice of Private Electronic Sports, carried out through competitive events prepared by electronic sports operators and also by the developers / publishers themselves, among many other promoters of private events. It should be noted here that everyone has the full right, each in his or her own category, to promote electronic sports in the way that best suits him, provided that the agreement of these means and ways is agreed upon by the athletes.
There is only a distinction between the institutional electronic sport, the so-called professional and that requires the "federation" of the athlete and his practice entity, and the private electronic sport. The latter in agreement with the athlete, will be carried out punctually and by event, or as they wish, but for their practice entity (club and / or team) will fit the due registration of the same and themselves in the state and national administration entities. Independent will be the events and their moments, not fitting the use of Sports Law for private events, these then governed by the Civil and Labor Law in force.
With regard to article 3 of the CLT, it is a well-known fact that the relationship of the "professional athlete" or any nomenclature that he wishes to use is and should be framed as an employee and, therefore, and within what requires this recognition, he is indeed professional. However, the certainty of the Freedom of Practice, provided for in Item II of Article 3 of the Pelé Law (9615/98), is dubious, because once the athlete has a link with a Club and / or Team, he will certainly represent only that entity of practice and cannot act on behalf of another different being legally bound. Here it is already certain that we do not interpret Article 3 Consolidated restrictively, as some jurists interpret it, because the Pelé Law deals with sport and not only Football, period!
Therefore it is more than notorious the need, in our national system of sports (or national system of sport) that the entities of administration (confederations and federations) will always be necessary to give the final characteristic of professionalization of the athlete, and that its lack characterizes only and only the private, educational or entertainment practice.
Also at this point in Item II of the sole paragraph of Article 3 of this Law 9615/98 is notorious the right to have for himself, if he is framed as a non-professional athlete, the private receipt of practice material and sponsorship. There is no longer any greater doubt after analyzing both the CLT and the Pelé Law 9615/98 (Sports Law), the total need for administration entities and practice entities and it is also clear that there is total freedom of private events as well as their promoters and operators, whether they are companies specialized in these events, or various companies and especially the developers and / or publishers of the franchises used for electronic sports.
Here we get into another point: I said in the paragraph above about "franchises used", yes exactly that specific denomination: use.
Using as an example football, we have the sport itself, that is the practice that uses physical tools and objects so that the concept of practice is transposed to reality, that is, it is necessary the ball, the field, the boot, shin protections among other articles, for the practice of the sports concept called football, whose birth came from the creation of rules and means of executing this concept. In the same way the concept of electronic sport, whose practice is established by the same needs when practicing and competing, are necessary for the concept of this sport in electronic media to be realized, regardless of who creates them, but especially those that regulate the institutional sports practice beyond the rules of the franchises themselves and that are not confused with regulations, And so we have tools and devices such as computers, consoles, controllers, keyboards, screens, monitors and especially games (or franchises). Electronic sport is the practice of competition between people using local electronic devices or through the internet, connecting one or more competitors and practitioners of this sport, making use of various franchises, which in turn are in different modes and platforms.
The games themselves, or franchises, were idealized as an activity in order to bring, logically and certainly, to those who develop them and those who publish them: profit; and for those who used them: entertainment. With the more organized and coordinated formats of competitions using these franchises, and in view of the high growth of return on investment of certain operators of electronic sports in their private events, was born then the interest of the developers themselves and / or publishers to have for themselves their own events, of which we currently have attention and dedication that border on perfectionism real and in fact. They are competitions of extreme quality of operation and coordination and with incredible prizes for the competitors, giving even more possibilities of diversified business in addition to the higher margin in sales of its franchises.
This is the right and why not say of total DUTY of each developer and / or publisher, reach this level of success, with respect to these events, in addition to the sales of their franchises grow. With this the investment in new franchises, and improvements of existing ones, are greater and we will have for us even more resources, possibilities and challenges in electronic sports. The commercial success of the developers is of extreme necessity! Nor does anyone in their right mind found a company whose purpose is not exactly to bring dividends, profits and success to the enterprise itself.
However, the initial and final reason of these developers and/or publishers is other than the trade of their products and their possible services. In no way fit into the promotion of sport as a tool for the formation of the citizen, the institutional electronic sport, whose purpose is the practice entities and the sports administration entities, in this case the electronic one. If this were the case, they would have done it many years ago, in the way that here in Brazil, this promotion is done by the sports administration entities themselves. And it is not the end activity, nor even inherent service and duty, of the practice entity or administration entity the commercialization of franchises, but the use of them as a means of execution of electronic sports, in a way that adds educational, cultural and sports values at its various levels in the formation of the citizen. It is also inherent in the entity of administration and practice to guarantee to the practitioner, whose character is of professional once federated, his rights and duties as an athlete and certainly citizen, without, however, inferring in any private activity of developers, publishers, and operators of electronic sports events.
There is also to our understanding, the inherent difference not only the end activity, but also the end need for the citizen and in the maintenance of sports category and not in the commercial. Both can coexist in such a way that one will provide the greater growth of the other, even creating the breaking of an existing paradigm in regular sports categories such as football, basketball among others, whose practice entities are increasingly impoverished due to the harmful and plastered secular model, aiming only at one category of sport.
For example: the developer will have in the management entity an engagement with its franchise as never before, first because a certain franchise can be kept within the category for a long time, second because it has its electronic sports events in total normality and still happening in parallel to its private event, independent but can act jointly, even creating a link in certain events, adding value to both environments. With the institutional electronic sports events happening in parallel coming from the administration entities of this category, it will give these franchises even greater visibility, commerce adding to these social, educational and research qualities, not counting on the legal valuation of the athlete, the teams and the events, even if institutional, but reflecting in the private, since these franchises are the intellectual property of these same developers and / or publishers. One is in no way an impediment to the other, on the contrary, the developers win in all areas when it comes from the entities of administration of electronic sports.
To exemplify with another technical point, another important factor here in the Brazilian market is the need for authorization/certificate from Caixa Econômica Federal, inherent to the online or electronic event of the practice of electronic sports coming from the developers and / or publishers, or even from any private commercial entity. What does not happen with the entities of administration of the electronic sport because it is only up to the Caixa Econômica Federal (CEF), the coordination and requisition of these commercial rates to the companies with profit or not, since they do not fit in the sport. Therefore, events of developers and / or publishers, and other private companies that hold their private events, with the seal of the administration entity, would not need in theory, such certification and fee paid to CEF.
Apart from this very unique point here in Brazil regarding the electronic sports event, promoted by a private company and its relationship with the CEF, there are also benefits in the recognition of electronic sports as a regular and regulated sports category, after the enactment of the Electronic Sports Law (be it national, and later state and municipal), because it is about sports other points such as tax exemption by the developers when they provide franchises for the Institutional practice of the sport and these certain franchises are chosen as official in the national institutional scope of electronic sports, or even in the inputs as articles for practice of the category, exemption or better conditions in the commercialization of keyboards, monitors, consoles, computers and other items. The possibilities are infinite and are certainly greater than the differences that one or the other side believes exists among themselves, and that I immediately claim do not exist. What there is is a lack of information, dialogue and clarity in what one and the other do, which I try to explain here as a final point.
There is also a full understanding of the need to maintain the private rights of developers and/or publishers with respect to their franchises. Of course if required, payments for the use of these franchises should and will be made, since Brazil is a country in which the Copyright Law is taken very seriously, and is a signatory country to several international copyright agreements.
In addition, an administration entity has for itself, the duty to create public policy counting on the developers and / or publishers, because they are part of society, and several other areas, so that one does not infringe the rights and area of the other but that work in parallel and with the only intention that it has for itself, In particular that of the administration entity is the formation of the citizen, human development and to support the generation of employment and income with respect to diversity.
Also according to Law 9615/98 whose administration entity is part, we have that the sport can be recognized in the following manifestations:
– Educational sport, practiced in education systems and in unsystematic forms of education, avoiding selectivity, hypercompetitiveness of its practitioners, in order to achieve the integral development of the individual and his training for the exercise of citizenship and the practice of leisure;
– Participation sport (recreation and leisure), practiced voluntarily, comprising the sports modalities practiced in order to contribute to the integration of practitioners in the fullness of social life, in the promotion of health and education and in the preservation of the environment;
– Performance sport, practiced according to the general rules of Law No. 9,615, of 1998, and the rules of sports practice, national and international, in order to obtain results and integrate people and communities of the country, and these with those of other nations. Performance sport can be organised and practised:
(a) in a professional manner, and
b) in an unprofessional manner.
And then we return to what we have already discussed in a previous paragraph in this same article, including the legal necessity of the presence of the entity of administration of this category. Also according to the Ministry of Sports and the National Sports Council, the concern with the social should be, therefore, in school, in recreation and even in high-performance sport.
It is also worth mentioning here that the 1st National Conference of Sport, as a proposal for action we have, among others scored for high performance sport, a category in which here in Brazil electronic sport is framed:
Ensure that the resources of the Agnelo/Piva Law are also allocated to state and municipal entities for the administration of Olympic, Paralympic and non-Olympic sport, as well as to the training entities – clubs and associations – also benefiting technicians or technicians and athletes so that the Base Sport is contemplated and prioritized.
Implement Centers of Training, Training, Research and Sports Excellence through partnerships with Universities, Armed Forces and related entities, with specialized structure for the development of athletes and paraathletes and anti-drug programs, from the base to high-performance training. These structures must be equipped with equipment, human resources (doctors, physiotherapists and physical education professionals), scientific resources and appropriate facilities, in a regionalized and decentralized way in several municipalities of all Brazilian states, prioritizing the use and adaptation of idle spaces already existing in sports entities, non-profit or economic, military installations, schools, etc.
Ensure with the agencies of watersheds the allocation of a minimum percentage of 3% of the resources from the collection for the use of drinking water, existing in Brazilian rivers and lakes to subsidize sports in general.
Therefore, the entities of practice of electronic sports (clubs and / or teams) duly registered in the administration entities and the national and state administration entities themselves, may yes, and not only the COB, enjoy financial resources so that they maintain, in the due regulated actions of the electronic sport, operational and provide social growth and certainly the professional in electronic sports.
Here we are not going deep into educational sport or promotion sport.
So there is a model to follow both commercial, business, social, cultural and educational, not to mention the professional, with regard to electronic sports, it is enough that each one works in their particular sector and that they understand once and for all their role before their own areas and assume for themselves the duties inherent to each role, as well as enjoy their due rights.
Still with regard to the practice entities and especially the administration entities, they provide scientific research for the improvement of both the athlete and various tools for the improvement of the category, with its centers of excellence and health, in addition to establishing anti-doping policies (in our case chemical doping and doping of software and hardware), and also in the maintenance of good sports management models, avoiding even leonine work contracts that currently denigrate the image of electronic sport and negative the isonomic performance of the athlete within esports clubs and/or teams, often in environments that are comparable to situations of slave labor, in addition to remuneration totally adverse to good commercial practice within the sport and in no way guarantee a real and palpable career in the category and even less a post-career, Not to mention transfer contracts, image properties and windows, and so many other aspects that are certainly regulated by sports administration entities. Again here remembering that this for the scope in institutional electronic sports, in no way inferring or ingesting the scope of private electronic sports, in which clubs and / or teams and their athletes may belong concomitantly, and it is only up to the private to desire, and to be able to be within the seal of the institutional, being able to then enjoy the various positive points managed and offered by this category, as STJD, Dispute Resolution Chamber, Arbitration and other benefits all based on and within the Sports Laws and Civil Laws.
In addition, the entity of national administration of electronic sports, has for itself providing the community with projects of social inclusion, educational and social integration already available for application, and in fact is already underway work in conjunction with some municipalities and states, and with educational entities, in addition to dozens of other projects and actions arising from its various commissions, councils and departments.
The technical, social and educational justifications, apart from those of professional practice are several, all of them favorable to an ecosystem of electronic sports on Brazilian soil that would envy the most methodical and eccentric country of the first world, just the conversations and practical actions start in all categories. We have already taken the first step, a long time ago by the way, and we are going forward always open to create a better means for all, especially for the practitioners of electronic sports and aiming at the formation of the citizen, that is, professional, educational and social life having the electronic sport as a tool and means of socioeconomic experience.