Post by account_disabled on Jan 11, 2024 11:11:13 GMT
The funds received as image rights and arena rights by the football player, as they are related to the employment contract, are considered salary in nature. Therefore, they affect vacations, 13th salary and FGTS. With this understanding, the 4th Panel of the Superior Labor Court denied the appeal against the decision that condemned Internacional de Porto Alegre to pay labor funds to full-back Cássio José de Abreu Oliveira.
In his labor complaint against Inter, the athlete stated that he was hired for a specific period — from February to December 2002 — and agreed that he would receive R$35,000. Of the money, R$20,000 was paid directly, in the form of a salary, and the rest was passed on to the player's company, Cássio Sports e Eventos Ltda.
The company signed with the club a “private instrument for the transfer of the image and professional name and/or nickname of a professional football athlete”. However, according Special Data to the athlete, the contract amounted to a “gross attempt to circumvent labor legislation”, since the club “never made any use of the player’s image, voice, professional name or nickname, except for strict reasons of the employment contract”. Cássio also asked for the payment of the arena rights.
The 23rd Labor Court of Porto Alegre recognized the salary nature of the portion of the image rights and determined the payment of the arena rights. The Regional Labor Court of the 4th Region upheld the sentence. The club appealed to the TST.
Inter maintained that the “image” and “arena” portions deal with the same legal institute. “Therefore, when he negotiated with the club the contract for the transfer of rights to the image, voice, professional name and/or sporting nickname of a football athlete, the player did so in relation to these two headings, image and arena.” As the payment was made through the player's company, “they are not a salary nor part of the worker's remuneration, for any legal purpose”.
Minister Ives Gandra Martins Filho, rapporteur, clarified that the right to the arena concerns the commercialization of the professional athlete's image in the media. “As the TRT rightly pointed out, the professional football player has the right to participate in the price stipulated for the transmission or retransmission of the sporting spectacle, as regulated in article 42 of Law 9,615/98 (Pelé Law). The amounts transferred to the athlete arise precisely from the employment contract signed between him and the club, which attracts the competence of the Labor Court to assess the controversy”, he stated.
Regarding the legal nature of the right to image and arena, Minister Ives noted that article 5, XXVIII, paragraph A of the Federal Constitution ensures the protection of individual participation in collective works and the reproduction of the human image and voice, including in activities sports. The Pelé Law, in turn, provides that the right to negotiate the holding and transmission of sporting events belongs to sporting entities, with at least 20% of the total authorization price being distributed in equal parts to the athletes participating in the event. event.
“In this case, it was expressly stated by the TRT that the player's remuneration was made up of a fixed salary (of R$ 20 thousand), plus R$ 15 thousand per month referring to image rights, and the amount corresponding to the division between the players who participate in the games, 5% of the broadcast value”, said the minister in his vote.
“The payment of all these amounts was made periodically and habitually, with those relating to the right to the arena being transferred by the club under the employment contract”, he continued. “The Regional also concluded that the contract relating to image rights was signed with the sole intention of masking the salary nature of the amounts paid as arena rights. Thus, the amounts involved make up the remuneration, as provided for in article 457 of the CLT”, concluded Ives.
The 4th Panel, unanimously, followed the rapporteur's vote, which considered the understanding of the TRT of Rio Grande do Sul on the salary nature of the installments to be correct, and maintained the determination of integration of these values in the calculation of FGTS, 13th salary and vacation.
In his labor complaint against Inter, the athlete stated that he was hired for a specific period — from February to December 2002 — and agreed that he would receive R$35,000. Of the money, R$20,000 was paid directly, in the form of a salary, and the rest was passed on to the player's company, Cássio Sports e Eventos Ltda.
The company signed with the club a “private instrument for the transfer of the image and professional name and/or nickname of a professional football athlete”. However, according Special Data to the athlete, the contract amounted to a “gross attempt to circumvent labor legislation”, since the club “never made any use of the player’s image, voice, professional name or nickname, except for strict reasons of the employment contract”. Cássio also asked for the payment of the arena rights.
The 23rd Labor Court of Porto Alegre recognized the salary nature of the portion of the image rights and determined the payment of the arena rights. The Regional Labor Court of the 4th Region upheld the sentence. The club appealed to the TST.
Inter maintained that the “image” and “arena” portions deal with the same legal institute. “Therefore, when he negotiated with the club the contract for the transfer of rights to the image, voice, professional name and/or sporting nickname of a football athlete, the player did so in relation to these two headings, image and arena.” As the payment was made through the player's company, “they are not a salary nor part of the worker's remuneration, for any legal purpose”.
Minister Ives Gandra Martins Filho, rapporteur, clarified that the right to the arena concerns the commercialization of the professional athlete's image in the media. “As the TRT rightly pointed out, the professional football player has the right to participate in the price stipulated for the transmission or retransmission of the sporting spectacle, as regulated in article 42 of Law 9,615/98 (Pelé Law). The amounts transferred to the athlete arise precisely from the employment contract signed between him and the club, which attracts the competence of the Labor Court to assess the controversy”, he stated.
Regarding the legal nature of the right to image and arena, Minister Ives noted that article 5, XXVIII, paragraph A of the Federal Constitution ensures the protection of individual participation in collective works and the reproduction of the human image and voice, including in activities sports. The Pelé Law, in turn, provides that the right to negotiate the holding and transmission of sporting events belongs to sporting entities, with at least 20% of the total authorization price being distributed in equal parts to the athletes participating in the event. event.
“In this case, it was expressly stated by the TRT that the player's remuneration was made up of a fixed salary (of R$ 20 thousand), plus R$ 15 thousand per month referring to image rights, and the amount corresponding to the division between the players who participate in the games, 5% of the broadcast value”, said the minister in his vote.
“The payment of all these amounts was made periodically and habitually, with those relating to the right to the arena being transferred by the club under the employment contract”, he continued. “The Regional also concluded that the contract relating to image rights was signed with the sole intention of masking the salary nature of the amounts paid as arena rights. Thus, the amounts involved make up the remuneration, as provided for in article 457 of the CLT”, concluded Ives.
The 4th Panel, unanimously, followed the rapporteur's vote, which considered the understanding of the TRT of Rio Grande do Sul on the salary nature of the installments to be correct, and maintained the determination of integration of these values in the calculation of FGTS, 13th salary and vacation.