Esports Athletes and he labour/athletes Laws towards esports

Esports Athletes and he labour/athletes Laws towards esports

It is not currently known in the international arena, that the Electronic Sports Championships are moved by billions of dollars.

The vultosas prizes paid to the winning teams see calling the attention of young players to enter this modality.

These players are recognized as athletes, in their institutional and professional regularity, as well as that an administrative body of this area is recognized by the Ministry of Sport in the country of their operation – apart from government recognition by other Ministries such as the Culture Ministry in certain countries – or when , concomitantly to this, has also reconfirmed the Electronic Sport and its regulation. Parallel to this, where there has been no recognition or creation of this recognized entity to manage this sport in the country's national sports system, the players are usually known by other denominations such as "cyber-athlete", or even "gamers", terms that fall into obsolete when it gives professionalization and regulation of the category, for enquadrament in rights and duties that this class, of athletes, legally requires.

Also from this article, we will treat the writing of the term in English “Electronic Sport” as only “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 “ eSports”.

Regardless, these are the athletes who perform their work for organizations with sports/businesses that are generally legally constituted companies. In the case of Brazil, legally and tax-wise, we have as the most used models: Limited Civil Society (S/C Ltda.), Limited Liability Individual Company (EIRELI), Individual Micro-entrepreneur (MEI), Individual Entrepreneur and LTDA (EI), Micro-Enterprise ( ME), Small Size Companies (EPP), divided here between classification of companies and types of taxation, and parallel to these, we have Sports Clubs (such as Flamengo, Corinthians, Grêmio or even outside of Brazil such as Real Madrid and Barcelona among others ), constituted as Non-Profit Entities,

Regarding the matter of the Traditional Sports Clubs (traditional tax and legal model) and the Clubs-Enterprises, and the aspects of the Brazilian Constitution regarding Sport, Lei Zico 8672/93, Lei Pelé 9615/98, Law 9981/2000, MP 2011 -9 of 06/26/11, Law 10671/03, Law 12395/11 and Articles 1039 and 1092 of the Civil Code, along with two issues involving majority shareholders, quota holders, minor partners and sponsors, and North American Parent Leagues and investments in the training of athletes, we will deal with the next article to be published at the beginning of March 2018.

Or what we can put forward here in this article, on the subject of the above paragraph, is that there is no relationship of success / improvement for sports clubs that have become Clube-Empresa and neither does the same relationship for times that were created in the Clube-Empresa model, o that gives success to each one of them, regardless of the model, and qualified management in all areas and is so. But the Clube-Company model is so much disregarded by regulation that it either could be understood literally and completely, or that it was presented in the Law because of many gaps not understood and applied, and there is currently no consensus on the model to follow. Contudo as jádito, we will address the matter in another article.

In Brazil, in the year of 2013, there was a significant leap in the Esports scene due to the growth of the online game "League of Legends". A routine of professional athletes (players) is quite heavy. Or maximum time to get up is 11am. After the first referral of the day, the file is up to 12 hours attending games, studying opponents and engaging in combat. It is discussed here, as it has been addressed in an article previously written under the title “O Esports como Esportes Regulares, seu and its regulation and officialization in Brazil and in the World” and in English under the title “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 the rigid application of methods and resources, both physical,

In that despite the modality it has not yet been recognized as a sport in Brazil, but again here we repeat that it is the Brazilian Confederação de Desportos Eletrônicos or the recognition and certification of the Ministry of Sport (in particular for SNEAR, read articles “CBDEL is Certified and homologated in the Ministry of Sport of Brazil” and “Legal Vision of Certification and Reconheciment of CBDEL” on Linkedin and associated websites to understand what this impact means for the electronic sport in Brazil), and unregistered or advanced in professionalism. Então arises a great questão about the recognition of Carteira Assinada two athletes (players) involved in this complex structure.

Many times, esports is a recent sport modality, our Brazilian legislation does not face the issue. Simultaneously, two parliamentary results are awaited, with the proposals of 4 draft laws especially for the Electronic Deport, são eles, Draft Federal Law 3450/2015 (Câmara dos Deputados), Draft Federal Law 7747/2017 (apparently PL 3450/2015), State Law Project 1512/2016 (São Paulo), and Federal Senate Law Project 838/2017. Three of them, with the exception of PL 7747/2017, edited and formatted by the president of CBDEL, mr. Daniel Cossi was registered and represented by the respective Federal Deputies, State Deputies and Senators. Other State Law Projects with the same theory and objective are already presented in other states.

Returning to the main matter, currently in market practice, or contract agreed between the parties and a service provision contract, civil sponsorship contract or employment contract. Desses, or less favorable to the athlete and that, taking into account the guiding principle of the Labor Law that is the PRIMAZIA DA REALIDADE, we solemnly believe that this is the civil contract of sponsorship, fitting this type of contract a relationship with or “time”. This is because, in the contractual relationship, there is subordination to the employer, performed on a regular basis through a daily schedule of at least 8 hours, for a salary that can only be exercised by that particular athlete (jogador) hired. In terms of work, it matters or what happens in practice, more than the documents demonstrate. Segundo Pla Rodriguez, "It means that in case of discrepancy between what occurs in practice and what arises from documents and agreements, preference should be given to the first one, that is, to the one that happens not on the ground."

For a service provision contract, rights and duties of the contracting party and the contracted party are established, and by mutual agreement, celebrated through the formalities of assignments, registration of the contract in the registry and other legal proceedings that may be necessary, known by any lawyer. It should inevitably be a guarantee for the borrower of the service that, if all the conditions that were once agreed upon are not fulfilled, or the result of two services provided will be a guarantee of the expected expectations. It must also inadvertently guarantee that the contracted party (athlete), is not involved and does not take part in possible judicial actions that lead as the contracting party (time), gives inadmissibility of compliance with the agreement by the contracting party and as such.

Another point is that all service contracts must celebrate or period in force as agreed, start and end of the services provided or establish an indeterminate time unless mutually agreed by both parties for its termination.

It is important to note that, whether for employment or continuous services, we cannot enter into contracts for the provision of services that characterize a labor relationship, and that as well establish a labor relationship with the contracting party, being contrary to CLT.

Já per labor contract (ter a “carteira de trabalho assinada”), all rights and other guarantees for both parties advem de conventions with class bodies, by our Constituição e pela Consolidação das Leis Trabalho (CLT), here we have or non-previous labor law (Contrato de Prestação de Serviço) we have or civil law (Civil Code).

Not so, as we say, we have or that the jurists customarily treat by PRINCIPIO DA PRIMAZIA DA REALIDADE. Isso means to say that: if you meet all the requirements of an employer (CLT), it really will not matter much what type of contract is concluded between the athlete at the time, once you will have all the guarantees provided in the Law. See below some features side by side:

 In accordance with the reform of the Labor Law in 2017, there are more ways for negotiations between employers and employers, starting from a perspective that what is negotiated prevails over what is legislated. These possíveis acordos passarão a ter Legal value on matters such as overtime, dismissals, bank of hours, fairs and work interval between other points. These reforms will see at times that they (to Lei Trabalhista) must adapt to our technological and also marketing and social reality, once we browse tools such as Whatsapp, WeChat and also or home office, and these more horizontal jobs, And here comes a point that deserves importance because there is a question of Gaming Houses - spaces used by athletes where they celebrate both their thirty years and their regular daily experience - they are more in use and should not be considered in the context of the Labor Law. There is no horizontal work, a thin line that separates the hours of work, hours of work, and hours of lazer practiced in the same place, with the same tools for both the service, the amount of work, and the hours of lazer. On top of everything, the new Labor Law will greatly benefit the relationship between the times and the electronic sports athletes in the sense that now there is a prevalence of the formal agreement between the parties and the greater understanding of each situation. Now it is less likely to be litigated by Má Fé and even punishable by anyone who promoted it, when proven. There is no horizontal work, a thin line that separates the hours of work, hours of work, and hours of lazer practiced in the same place, with the same tools for both the service, the amount of work, and the hours of lazer. On top of everything, the new Labor Law will greatly benefit the relationship between the times and the electronic sports athletes in the sense that now there is a prevalence of the formal agreement between the parties and the greater understanding of each situation. Now it is less likely to be litigated by Má Fé and even punishable by anyone who promoted it, when proven. There is no horizontal work, a thin line that separates the hours of work, hours of work, and hours of lazer practiced in the same place, with the same tools for both the service, the amount of work, and the hours of lazer. On top of everything, the new Labor Law will greatly benefit the relationship between the times and the electronic sports athletes in the sense that now there is a prevalence of the formal agreement between the parties and the greater understanding of each situation. Now it is less likely to be litigated by Má Fé and even punishable by anyone who promoted it, when verified. The new Labor Law will greatly benefit the relationship between the times and the electronic sports athletes in the sense that now there is a prevalence of the formal agreement between the parties and the greater understanding of each situation. Now it is less likely to be litigated by Má Fé and even punishable by anyone who promoted it, when proven. The new Labor Law will greatly benefit the relationship between the times and the electronic sports athletes in the sense that now there is a prevalence of the formal agreement between the parties and the greater understanding of each situation. Now it is less likely to be litigated by Má Fé and even punishable by anyone who promoted it, when verified.

It must be observed in all contracts, regardless of their modality, the correct proposal of final activity that is to participate in high-performance championships that require a lot of skills and training, isso in case it registers that a lot of physical wear, these players are sofrem too much or mental exhaustion, because it requires a lot of concentration and reasoning allied to emotional control. São obrigados to meet several goals.

It is determined by article 3 of the CLT that any physical person who provides services by nature or possibly to an employer, under the latter's dependency and on salary, is  considered  an employer. O Illustrious author Sérgio Pinto Martins in his well-known work says: (MARTINS, Sergio Pinto. Direito do trabalho. 17th ed. São Paulo: Atlas, 2003) 

“ The employment contract, in truth, is a legal employment relationship, even if there is provision of services, as there will be rights and obligations. If the existence of the employment relationship is stopped, an adjustment is required, whether verbal or tacit, just as it is not express, there is an interaction between the contract and the relationship and one cannot subsist sem or another. A relationship is the effect of the contract and not because of it.”

The labor contract is distinguished from various other contracts of a civil nature by necessarily having the participation of a physical person as an employee. According to prevailing theory, the employment contract has a contractual nature and in this way, the existence of the contract will occur with the provision of services, by the employer, followed by remuneration, by the employer, characterizing the same as a tacit adjustment.

It is noted that one of the requirements of the contract consists of performing or working in “Training Centers” assisted by trainers, psychologists, nutritionists, among other professionals. It is imperative to register that the athletes of electronic sports are subject to the application of punições or other penalties in case of non-compliance with any clause foreseen in the agreed contract. It is assumed that the athlete does not have AUTONOMY, is clearly subordinated to the contracting company.

Once all the requirements listed in art 3 of the CLT have been met, all rights will be obligatorily recognized as: Anotação na Carteira, salary, social security collections, Fairs accrued from a constitutional third, 13º (thirteenth), Fund of guarantee.

Além do that, as recognition of Esports as a sport, to Lei Pelé (Lei 9.615/98), we refer to art. 28 foresees that the activity of the professional athlete is characterized by a special sports work contract. I give importance to the work that CBDEL has been developing for years together with the competent bodies in Brazil, so that the recognition is given definitively. The projects of Law in their majority directed by the president of CBDEL, in the Federal sphere (Senate and Chamber of Deputies) and in the State sphere (Legislative Assemblies), have met these needs. As we say, the Certification of CBDEL by ME, especially by the National Secretary of High Performance Sports, is the sign that this path is to be endowed.

In the meantime, we still cannot, just as the items provided for by Lei Pelé are constant in the employment contracts of some electronic sports players with their times, to count on the defense of two electronic sports athletes under the guarantees and other specifications that Lei advises, for Electronic sports athletes are not officially recognized as athletes, by our Legislation, and therefore we cannot take advantage of anything that Lei Pelé has.

       Topic of major importance in Esports, and also the participation of minors (between 16 and 18 years of age), in times and other competitions in the professional field. Além disso makes a distinction between educational, amateur and professional electronic sports, isso in any sports category of the National System of Brazilian Sports.

        Both to the CLT and to the Constituição ditam on the work of minors. It is still necessary to consider the Torcedor Statute and the Pelé Law and the Criança and Adolescent Statute. Through the CLT and the Constitution, any type of work is prohibited for those under 16 years of age, except for being an apprentice (Apprenticeship Contract).

        Between 16 and 18 years of age, only administrative or technical jobs since they have not been practiced in places considered unhealthy. In these cases, there is a whole range of changes, such as, for example, the hourly work load (work days), their extensions are prohibited, and there are still compensations in the work days in relation to what has been completed or not in school (just or less complete or less than half, he will be able to have a working day of eight hours, and also have more hours, computed as theoretical learning, otherwise or limit is six hours), minimum salary guaranteed per hour, coincide with the period of fairs I don't work with school fairs (case I am still studying in school), among so many other peculiarities.

        In the case of being a non-professional athlete in training, older than fourteen years of age, he or she will be able to receive financial aid from the training sports practice entity (only and only by Certified Clubs as Trainers of Athletes duly approved both by the CBDEL as, for example, by the Confederação Brasileira de Clubes, obtaining with isso até to obtain subsidies from the Federal Lottery and other various investments from individuals, and also has its own Lei de Incentivo ao Esporte – which is not specific to trainers of athletes, contudo permeia or sport amateur – in the form of apprenticeship freely agreed by formal contract, provided that an entrepreneurial bond is created between the parties.We will deal with Athlete Training Clubs in the article that we will publish about Clubs-Companies and related matters already mentioned in the paragraph at the beginning of this article.

  It is very important that it is understood that we have to have basic categories in Esports, but at the age limit (only over 14 years old), it is also an important point to be observed. Base training is crucial to train new talents and discover professionals who will make a difference in the very near future. Training centers of the CBDEL and the Federations affiliated with the LNEE, receive children from nine years of age under special conditions and only do not have educational and inclusive electronic sports.

However, and with all certainty, it is surprising that both the CLT and Lei Pelé the basic requirements that require the labor rights of two athletes are evident.

Countries such as Korea do Sul, the United States, Finland, Russia already recognize and grant all the rights to the Esports athlete, which were previously offered and applied to the athletes of other modalities. Although we are not dealing in this article with all the aspects that allow an athlete, there are points such as ARENA DIRECTORY and IMAGE DIRECTIVE that must also be brought up for negotiation.

Extraordinary fact is the inclusion of Japan as a country that recognizes the modality as professional. There was a huge obstacle to recognition by force of a law that had been in force in the country since the 1980s that prevented the holding of professional games championships as a way to prevent the attack of organized crime that used the game to illegally move money. Aiming at the progress of Esports or the Japanese government of olho in the 2024 Olympics, I sought through the legislature to alter the law in force for decades. Also, with the alteration of the Law, the championships with high prizes can be officially established. With this progress, it was legally recognized to issue professional licenses for the best players of the tournament.

        It is added that in the first week of February this year or the Esports cenário no Japão announced or  JeSU (Japanese Esports Union), which regulates game competitions in the country. This organization is even in contact with WESCO (World Esports Consortium) for joint negotiations and activities not referring to international electronic sports standardization, its application by means of resolutions of the International Esports Tribunal, as well as the Chamber of Resolution of International Esports Litigation among other applications. Through JeSU, companies can nominate competitors to earn a "professional gamer" 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 in charge of promoting or growing esports in Japan. It is chaired by presidents and CEOs of Konami, Capcom among other companies. JESU will issue professional licenses for non-Japanese competitive players, or that it hopes will promote or develop the industry in the country.

        Accompanying the movement of the professionalization of the modality, the Riot Games in the year of 2017 determined as obligatory the formalization of the Work Cart for all the athletes that make up the teams that participate in their North American and European competitions. CBDEL in Brazil will provide stages and the period of adaptation to the times that we wish to be framed in models of sports clubs among other proposals, but nothing will be considered in the Esports scene in any current area.

         In the American continent, doing these times and standardizing Electronic Sports Laws, Electronic Sports Justice Tribunals, Health and Development Departments, Antidoping and Arbitration Commissions, Family, Education and Athletes, among other aspects, we have PAMESCO – Confederation Panamericana de Esportes Eletrônicos, which has in its members everything or endeavors to make it homogeneous or the scene of electronic sports, its practice and its professionalization. Current members of PAMESCO: USA (AMCOES and University and School Leagues), BRAZIL (CBDEL and National Esports League), MEXICO (FEMES and its National Esports League), PERU (APDEV), COLOMBIA (ACDEV), ARGENTINA (DEVA and ADEEMA), ECUADOR (Master GAME), CHILE (ACHDEV). PAMESCO is currently in contact and dealings with UNESCO,

       In the global arena we have WESCO – World Esports Consortium, with the participation of 29 countries and their electronic sports management entities, as well as companies from various sectors that interact in some way with Esport, including some developers. It is also part of WESCO, on its behalf to PAMESCO, and also works with WESCO for the development and standardization of electronic sports in its various areas, departments and systems. WESCO is currently in initial contact with the IOC – International Olympic Committee, IPC – International Paralympic Committee and UN – United Nations Organization among other regional organizations.

       Before all the world scenario, it is not possible to speak more in civil contract or informality in the rendering of services. Due to the advancement of the modality in Brazil, the times that we will not assign to the labor card of their athletes will be able to bear the penalties provided for in the Labor Law when justified.

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