Cláusula penal nos contratos de trabalho de atletas profissionais de futebol

• Autor(a) principal: Carneiro, Marcelo Bueno Martinez
• Data de Publicação: 2011
• Tipo de documento: Trabalho de conclusão de curso
• Idioma: por
• Título da fonte: Biblioteca Digital de Teses e Dissertações da PUC_SP
• Texto Completo: https://repositorio.pucsp.br/jspui/handle/handle/31233
• topic: CNPQ::CIENCIAS SOCIAIS APLICADAS::DIREITO::DIREITO PRIVADO::DIREITO CIVIL; Contratos; Direito desportivo; Cláusula penal; Art. 28 da Lei Pelé; Isonomia contratual; Article 28 Pele law; Penalty clause; Contracts; Sports law; Contractual equality

The historic moment we live is characterized increasingly by a tendency of Law to perceive how individual relationships can reflect in the entire society and by acknowledge of essentiality to preserve human dignity, through the fundamental rights and individual guarantees. However, it has been prevailing the understanding that the football clubs, because of their inability to compete financially with the foreign clubs, even in outlying and untraditional markets, should be privileged in contractual relations, breaching the equality principles and, consequently, causing serious damage to professional soccer players workers' rights, really the weak party at the legal relationship established. The precarious condition Brazilian football faces is undeniable. However, there is no good in penalize the athletes, the main players of the show, with legal understandings that protects only those who left the people’s joy to lie in this tragic situation. Treating football clubs in a fatherly fashion will only penalize the society and will not manage to save them from the circumstances they brought upon themselves. The importance of football in the national and the amounts involved in the footballmarket make it imperative to look upon the penalty clause on professional soccer players’ contracts from the perspective of the principle of equality which governs the legal relations, due to the divergence of understanding about the applicability of penalty for breach in favor of the athlete, established by Federal Law No. 9615 of March 24, 1998 - Pele Law. Currently, the prevailing jurisprudence understands that the contractual fine set forth by Law Pele is only executable when the withdrawal takes place by initiative of the athlete and in benefit of the club. By those doctrine words when the termination takes place for the club’s initiative, the fine entitled by the athlete is exclusively the established on the art. 479 of the Labor Code, which is the fine applied for the termination of employment contract in force for a determinate term While Pele Law sets forth on art. 28 the payment of a fine up to 100 (one hundred) times the annual salary of the athlete to national transfer and unlimited value for international transfer, the article 479 of the Labor Code provides that the amount owed to the employee is half of what it should receive until the term of the contract. Despite the distinguished doctrine and jurisprudence that follow this understanding, the constitutional principle of equality (art. 5) compliance is essential for reach a conclusion on the best intelligence applicable to the subject