Academic journal article The International Sports Law Journal

The Autonomy Case in Brazil

Academic journal article The International Sports Law Journal

The Autonomy Case in Brazil

Article excerpt

Introduction

Brazil has one of the most complex legal systems in the world, especially in regard to sports law. For that reason, sports law in Brazil has been a theorized area of study for a few years. The extension of this growing interest in sports law has undoubtedly served to strengthen it in terms of theoretical approach. The maturation of sports law as an academic subject is not only reflected in the growing volume of academic texts on the matter, but also in the sports law cases being brought to the court. The most recent of the high court cases is the so-called 'Autonomy Case', which involves the internal organization of one of the most important clubs in South America: the Sao Paulo Futebol Clube.

The Brazilian legal system is facing nowadays a conflict of norms in relation to the autonomy of sports entities as to their internal organization and operation. We will describe below the main aspects involving this notorious case, which can have a major impact on the Brazilian football world and be regarded as one of the most important cases in recent Brazilian sports law history.

I. Autonomy under the Federal Constitution

Although it may have divergent applications in different countries, protecting autonomy is today one of the central values of all legal systems. The concept of autonomy has an universal appeal and therefore shapes the whole structure of relationships between individuals, entities and the state. In its simplest and most natural sense, autonomy means self-rule. In other words, it signifies the right of individuals, or of associations, or of states to make their own laws for themselves.

Understood in this way, autonomy could be defined as a synonym for license, which is to say, the ability to do what you want within your private sphere (individual), scope (entity) or territory (state). However, autonomy implies certain measures of self-restraint. It is a limited license, a kind of power with restraints.

In this context, the meaning of autonomy is connected with liberty, which is one of the most important purposes and justifications for the existence of the law. As a general rule, the law protects liberty and autonomy drawing the lines that determine the range of their self-rule. It is not different in the Brazilian constitutional law. Article 217 paragraph I of the Brazilian Federal Constitution, promulgated in 1988, provides that Brazilian legislation shall guarantee autonomy for all sports entities in relation to their internal organization and operation, including (i) sports directing entities such as the Olympic or Paralympic Committees, confederations and federations and (ii) sports associations in general.

Ipsis litteris, article 217 paragraph I of the Brazilian Federal Constitution stipulates that: "It is the duty of the State to foster the practice of formal and informal sports, as a right of each individual, with due regard for: I - the autonomy of the directing sports entities and associations, as to their organization and operation".

In short, sports autonomy always deserves a special chapter in all kinds of sports law books, because it is undoubtedly "the keystone of the whole Brazilian sports legal system". (1)

II. Autonomy under the International Sports Law

Pursuant to the Brazilian lex magna, as we can see, the importance of the autonomy of the sports entities is also intimately connected with the concepts of self-organization and internal operation. Both concepts guard sports associations against unwarranted intrusion. The main idea of the above-mentioned legal framework is in accordance with the philosophy of FIFA, IOC and, consequently, the international sports law. (2)

The international sports law is ruled by organizations such FIFA and IOC. (3) They are world governing bodies placed at the apex of the so-called sports pyramids. A sport pyramid is an expression of the necessary organizational structure of sport. …

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