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. In football, for example, FIFA is placed at the apex. Beneath FIFA lie the continental associations - in South America, CONMEBOL. On the next level further down are the national associations, along with other participants, including regional associations and eventually leagues. And then come the sports clubs and the players at the pyramid s bottom. (4)

On the one hand, an association that wants to be admitted into FIFA is obliged to "ensure that their own members comply with the Statutes, regulations, directives and decisions of FIFA bodies". (5) On the other hand, as provides the Olympic Charter, each international federation "maintains its independence and autonomy in the administration of its sport" (6) and the National Olympic Committees "must preserve their autonomy and resist all pressures of any kind, including but not limited to political, legal, religious or economic pressures which may prevent them from complying with the Olympic Charter". (7) According to article 217 of the Brazilian Federal Constitution, FIFA, IOC, the International Federations and the National Olympic Committees are 'directing sports entities' and the clubs 'sports entities' or 'sports associations'. (8) Of course the goal of the two most important sports organizations of the world regarding autonomy is not exactly the same as that of the Brazilian constitutional law. FIFA and IOC do not accept any government interference with its members and, aiming to avoid such interference, established rules to safeguard the autonomy of all directing sports entities and associations.

That was the subject of a very interesting decision of the FIFA Emergency Committee, which suspended the Nigeria Football Federation (NFF) with immediate effect on account of government interference. (9) Last June, Nigerian President Goodluck Jonathan suspended the Nigerian national football team from any international competitions for the next two years after a disappointing run in the World Cup. The reason behind the President's attitude was the widespread corruption that existed in the NFF. Supposedly, the NFF spent their $6 million World Cup funds carelessly. Therefore, President Jonathan ordered that a financial audit of the World Cup project be carried out in order to investigate any misuse of funds and any wrongdoing related to the project. The results of those investigations include spending $250,000 to charter a faulty airplane to fly the national team from London to South Africa and paying $800,000 in allowances to 220 delegates to the World Cup when only 47 were federation officials. The rest were friends, associates, girlfriends etc.

In accordance with FIFA s decision, however, some events linked to the NFF were vital to the suspension of the NFF from all international competitions, such as: (i) the court actions against elected members of the NFF Executive Committee preventing them from exercising their functions and duties; (ii) the stepping down of the acting NFF General Secretary on the instructions of the National Sports Commission; (iii) the decision of the Minister of Sports to have the Nigerian League start without relegation from the previous season; (iv) and the fact that the NFF Executive Committee cannot work properly due to this interference.

The suspension will be maintained until the court actions terminate and the duly elected NFF Executive Committee is able to work without any interference by the Nigerian government. During the period of suspension, the NFF will not be able to be represented in any regional, continental or international competitions, including at club level, or even in friendly matches. In addition, neither the NFF nor any of its members or officials can benefit from any development program, course, or training from FIFA or CAF (Confederation of African Football) while the federation remains suspended.

Even though the cited constitutional provision (article 217 of the Brazilian Federal Constitution) is quite limiting, this subject was also addressed in Law no. 9.615/98, commonly known as 'Pele Law'. (10) By regulating sports in Brazil since March 24, 1998, Pele Law establishes the autonomy as a basic principle of all sporting activities:

  "Art. 2 Sporting activity, as an individual right, is
  based on the following principles: (...) II - autonomy,
  defined by the faculty and freedom of individuals and
  legal entities of organizing themselves for the purposes
  of performing sporting activities."

As per the reasons stated above, one could say that the autonomy of the directing sports entities and associations is certainly guaranteed both by constitutional law and special law in Brazil. This statement could be true. Unfortunately, it might be only partially true under Brazilian law.

III. Autonomy under the Civil Code

Whilst the Federal Constitution guarantees the autonomy, the Brazilian Civil Code establishes limits to the autonomy of sports entities, as article 59 provides that only the general assembly has competence to change articles of association, even though the entity s bylaws may establish the opposite. If the constitutional law (11) clearly safeguards the autonomy of sports clubs, how could civil law be applicable to them?

Regarding article 59 of the Brazilian Civil Code, which came into force on January 11, 2003: (12) "The General Meeting shall have exclusive powers to: I - remove officers; II - amend the articles of association."

The Sole Paragraph of the same article provides the following: "The resolutions mentioned in items I and II above shall be passed by a general meeting called especially for such purpose, with the respective quorum and criteria for election of officers as established in the articles of association."

Evidently, the provisions outlined in the Brazilian Civil Code go against the autonomy of sports entities, in such a way that they require football clubs, which have been created with the legal status of associations, to change articles of association by means of a general meeting of the associates, (13) even though these clubs perform such action through their decision-making bodies. (14)

The above-mentioned situation was worse until Law no. 11.127/2005 came into force, which partially modified article 59 removing from it the exclusive powers of the general meeting to (i) elect the officers of the association and (ii) approve its accounts. In this context, the dispute in the Autonomy Case arose out of the conflict of norms ongoing in Brazil. It consists indeed in a big question with no easy answer and, therefore, quite a challenge to Brazilian courts.

With this in mind, the case at hand offers an analysis of the complexity of norms relating to the autonomy of sports associations under the Brazilian legal system. Let us begin with the facts of the case.

IV. The 'Autonomy Case'

The well-known Autonomy Case of sports associations is certainly one of the most important leading cases in Brazilian sports law. The main issue, amongst several subsidiary ones, addressed herein is the conflict between constitutional law and civil law as to whether sports associations may have full or limited autonomy.

The question of how autonomy should be treated when sports clubs intend to amend their own articles of association became a controversial matter in Brazilian law. Even after the new Brazilian Civil Code came into force on January 11, 2003, (15) many sport clubs had continued to change their own articles of association through resolutions of their decision-making bodies instead of by general meeting s decision.

As a result, the Brazilian sports clubs, especially the ones that changed their articles of association grounded on the constitutional provision, have experienced legal instability. This situation has led to several lawsuits on this matter, mostly involving country's leading football clubs such as Santos FC, SE Palmeiras and Sao Paulo FC.

The Autonomy Case arose in 2004 from proceedings brought before the court of Sao Paulo by a member of the decision-making body of Sao Paulo FC against the sports association Sao Paulo FC. The claimant wanted to avoid changes in the articles of association of the sports entity. According to a first instance decision in the Autonomy Case, the provision of the Civil Code only concerns non-sporting associations. Further, most of the decisions also by the state courts have ruled that the provision in article 59 of the Civil Code does not apply to sports entities, as they have their autonomy guaranteed by the Federal Constitution and by a specific law (Pele Law). (16)

Despite the clear directions contained in the decision of the court of first instance, the State Court of Sao Paulo has taken an opposing stance on this issue with the understanding that sports associations must comply with the Civil Code and submit changes to their articles of association to a general meeting.

The dispute has been recently brought to the consideration of the Brazilian highest courts (Supremo Tribunal Federal/STF and Superior Tribunal de Justica/STJ) by means of appeals. Due to its complexity, the issue in this case may be stated in various ways. In short, its outcome rests basically on three legal doctrines:

i Supremacy of the Constitution over the Civil Code;

ii Specificity of civil law;

iii Constitution and Civil Code as centers of private law.

After that, in early 2010, members of the decision-making body of Sao Paulo FC filed a lawsuit against the club itself aiming to avoid the reelection of its current chairman Mr. Juvenal Juvencio. Actually, the claimants wanted to discuss a matter which still has no final decision by the highest courts: the same matter discussed in the Autonomy Case. The claim is focused on the fact that the decision-making body of Sao Paulo FC voted on changing the articles of association is illegal in light of the Brazilian civil law because made through an intern resolution instead of a general meeting s voting. Based on this amendment, which also intended to extend the tenure of the club s chairman, Mr. Juvenal Juvencio was re-elected president of Sao Paulo FC for the third time.

Before the club s decision-making body changed the articles of association, the chairman used to be elected to a two-year term. After the amendment, the term of office as chairman was extended to three years. Sao Paulo FC s articles of association, though, just allows one reelection and, according to the claimants, if the amendment was illegal, the current chairman could not be reelected for a 'third time'.

Anyway, due to this (legal or illegal) modification, the chairman of Sao Paulo FC was elected by the club s decision-making body (i) for a term of two years (2007-2008), (ii) for a term of three years (2008-2011) and (iii) for another term of three years (2011-2014). As to the Defendant s, the current chairman was re-elected only one time, because the first opportunity for him to be re-elected under the new rule i.e. for a three-year term was in 2011.

Conclusion

The Autonomy Case can certainly be the most important leading case in Brazilian sports law. The matter has not yet come to a final decision. This landmark judgment will be the first ruling at high court level which may or may not apply the Civil Code to sports association.

The Autonomy Case, whatever its outcome, will pave the way for the sports clubs to organize and operate themselves. That is why we will have to wait for the final rule of the Brazilian Supreme Courts to conclude which law will prevail in a conflict of norms related to sports law in Brazil: the constitutional law or the civil law.

RELATED ARTICLE: International and European Sports Law Course School of Law, Erasmus University Rotterdam, The Netherlands

Lecturer: Prof. Dr R.C.R. Siekmann

Structure: ten 2-hour interactive lectures

Assessment: paper (10 pages) and oral exam

Preknowledge: basic knowledge of public international and EU law

Period: 2011/2012

Content

The world of sport also has its own international rules and procedures. This, coupled with the further professionalization and commercialisation of top-level sport, has led increasingly to tension and friction with general international (and national) legal standards. The application and applicability of such standards in relation to professional top-level sport in particular is the central theme of the current problems in this area. Some examples may illustrate this. In the field of EU law the central question is whether the specificity of sport is such that exceptions to that law (the four freedoms, fair competition) can be tolerated in relation to the legal status of unions, clubs and sportspersons. The applicability of the human rights treaties (ECHR, ICCPR) comes into play in relation to the disciplinary proceedings against the sportsperson suspected of doping. In the area of dispute settlement at international level within this context particular consideration must be given to the position adopted by the International Court of Arbitration for Sport (CAS).

Course aims

The course provides an overview of the major themes in the field of international and European sports law (capita selecta).

In particular, within the context of this legal field, the focus is on providing insight into the problems such as outlined above and the possible solutions for these in a sector ("subculture") attracting growing public interest with specific organisational and other features.

It is intended that the course participants also actively contribute to seeking and evaluating solutions. This is done through interactive lectures in which articles written by the lecturer are explained by the lecturer and discussed. Practice-oriented experts shall, where relevant, be invited to share their views on the subject and to enter into discussions with course participants.

Course participants can write their paper on any subject of international and European sports law, whether or not this subject is part of the capita selecta. The oral exam is based on the paper and the subject matter dealt with in the lectures may also be discussed. The best papers are eligible for publication in The International Sports Law Journal (ISLJ). Aside from the main lecturer, some of the lectures will be provided by guest lecturers.

Literature

Course material includes in particular the relevant articles written by the lecturer and published or intended for publication in The International Sports Law Journal (ISLJ).

For further information: please, contact Prof. Robert Siekmann via sportslaw@asser.nl

* This paper is based on a presentation held at the XXVI IASL World Congress 2010, Hanyang University, Seoul, Korea, November 25, 2010.

(1.) See Alvaro Melo Filho, the author of the chapter about sports in the Brazilian Federal Constitution, O Desporto na Ordem Juridico-Constitucional Brasileira (1995), Malheiros Editores, p. 63: "The question of autonomy is not an issue of form but of substance".

(2.) See my book Verbandsgerichtsbarkeit und Schiedsgerichtsbarkeit im internationalen BerufsfuBball. Unter Berucksichtigung der verbandsinternen FIFA-Rechtsprechung in Bezug auf die lex sportiva (2009), Peter Lang, pp. 63-64.

(3.) It is important to note the difference between international sports law, which is ruled by the sports world bodies, and the lex sportiva, which is grounded on the jurisprudence of the Court of Arbitration for Sport: the supreme court of the global sports law nowadays.

(4.) See Dirk Monheim, Sportlerrecht und Sportgerichte im Lichte des rechtsstaat-sprinzips - auf dem Weg zu einem Bundessportgericht (2006), Herbert Utz, pp. 6-8. For a critical view of the matter see Stephen Weatherill, is the pyramid compatible with EC Law?, in European Sports Law: collected papers (2007), T.M.C. Asser Press, pp. 265 et seq.

(5.) See article 13 d of the FIFA Statutes.

(6.) See article 26 par. 2 of the Olympic Charter.

(7.) See article 28 par. 6 of the Olympic Charter.

(8.) About the Olympic system and the law of the Olympic Games see Jean-Loup Chappelet; Brenda Kubler-Mabbott, The international Olympic Committee and the Olympic System (2008), Routledge and Alexandre M. Mestre, The Law of the Olympic Games (2009), T.M.C. Asser Press.

(9.) See our newsletter in http://www.felsberg.com.br/Newsletter/Internationalout_10/newsletter.html.

(10.) Edson Arantes do Nascimento, the former football player "Pele", held the office of Minister of Sports in Brazil at the time Law no. 9.615/98 came into effect.

(11.) See article 217 I of the Brazilian Federal Constitution.

(12.) The Brazilian Civil Code was promulgated on January 10, 2002, and came into force one year later.

(13.) See Felipe Legrazie Ezabella, As Associacoes no Novo Codigo Civil Brasileiro, a Influencia no Direito Desportivo (Lei no. 10.672/2003) e a Alteracao de seus Estatutos Sociais, in Direito Desportivo - Tributo a Marcilio Krieger (2009), Quartier Latin, pp. 267 et seq.

(14.) With a critical overview of the matter Alvaro melo Filho, Autonomia Desportiva: uma questao central do Direito Desportivo (2006), IOB Thompson, p. 62.

(15.) About the vacatio legis of the Brazilian Civil Code see my book Solidaritat im Recht. Die Wirkungen der Solidaritat auf die invitatio ad offerendum im deutschen Recht vor dem Hintergrund der brasilianischen Rechtserfahrung (2009), GRIN Verlag, p. 113, footnote 273.

(16.) See www.tj.sp.gov.br - Lawsuit no. 011.04.015698-3-3rd Court of 1st Instance (Forum Regional de Pinheiros).

by Mauricio Ferrao Pereira Borges **

** Dr. iur., LL.M., Eberhard Karls University of Tubingen, Germany. Partner of Caliendo & Estevez Advogados Associados, Porto Alegre, Brazil. Legal adviser of Felsberg & Associados on sports law issues related to the World Cup Brazil 2014 and Olympics Rio 2016.

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.