Brazilian sports disciplinary justice

by Prof. Leonardo Andreotti Paulo De Oliveira[1]

Introduction

Sports law quickly achieved a global dimension, perhaps because of the dynamic nature of sport, and with the standardization of its rules, has become one of the most active branches of international law.

This internationalization was somewhat responsible for the growth of sports law globally, since in each national state sport is regulated in its own way, fitting in with the law and constitutional principles of countries around the world.

Given the importance of comparative study, our task is to expose and comment on the quirks and nuances of the Brazilian sports law, in order that it may, where appropriate, become an object of study in its own right and even a model on which to build an innovative system where sports law has not previously been present, and to aid in the integration and interpretation of the rules where it has already developed.

Given the extent, complexity and frequent changes in this branch of law, we will concentrate on an analysis of Brazilian law, limited to the disciplinary peculiarities involving the development of sporting competitions and control of offences.

As to the disciplinary peculiarities mentioned above (sports justice), it is to be noted that, as a system of private law, the Brazilian sports law was established and had its mandate set out under Pelé Law[2] and the Brazilian Code of Sports Justice. Its influence spread through being adhered to and administered in each of the sports federations. The Court of Sports Justice (TJD) that deals with disciplinary issues related to regional competitions, and the Superior Court of Sports Justice (STJD) that deals with competitions organized by the national association of each sports modality, occupy an important role and have jurisdiction over matters relating to disciplinary infractions and the running of competitions.

The Courts have constitutional status, as provided for by art. 217 of the Constitution of the Federative Republic of Brazil (“CF”), and are known for their speed and efficiency, features that have helped mould the principles governing the sports disciplinary system of the country, as will be seen below.

 

Sports justice

The right to sport is a public and subjective right. That is to say, it is a right conferred under the Constitution to individuals by the State, which has a duty to promote, encourage and protect such rights, as set out in art. 5, XXVIIIa, and art. 24, IX CF/88. And the Constitution also defines the existence and function of sports justice.

The foundations are set out in Title VIII – The social order, Chapter III – Education, Culture and Sport, Section III – Sports:

Art. 217. It is the duty of the State to foster formal and informal sporting practices, as the right of the individual, observing the following: Section 1 – The Judiciary will only consider actions in the area of discipline and sports competitions after all recourse to the relevant sports tribunals has been exhausted, as regulated by law. Section 2 – The sports courts shall have a maximum period of sixty days from the commencement of proceedings in which to render final judgment.

Therefore, the Constitution provides in the above article, that actions regarding sports discipline and competitions may only be submitted to the Judiciary after the exhaustion of the internal sporting processes.

It is through the understanding and application of this principle that sports courts and tribunals can be justified; in the words of Bulos[3]:

The disciplinary and regulatory processes of the sport come first. The relevant governing body, given the specificity of the field, creates an organ, separate from the judicial system, to resolve disputes relating to the particular sector.

It follows, therefore, that, when the issue in question concerns sports competitions, its rules and discipline, jurisdiction to hear and determine disputes will lie with the relevant sports court or tribunal. Sports related matters can only be examined by the national courts after all possible appeals to tribunals of reference within the sport have been exhausted.

According to the constitutional commentator Alexandre de Moraes[4]:

The Federal Constitution, exceptionally, requires prior consideration by the regulatory tribunals of the sport in cases of actions regarding discipline and sporting competitions governed by law, (Constitution, Article. 217, section 1), but does not restrict recourse to the national Courts at the end of the administrative process, as the system of sports justice will have a maximum period of 60 days from the initiation of proceedings to render final judgment (CF, art. 217, section 2).

The 1988 Constitution enshrined, in a mitigated form, the right to recourse to the national courts, that under the definition of Canotilho and Vital Moreira is described as:

“The prohibition on sportsmen of recourse to the courts of the State before the organs of sporting justice have pronounced on the matter. However, the right of recourse to the courts cannot mean a complete preclusion of jurisdiction of the courts of the State, particularly in cases involving fundamental rights of the citizen, whose injury is constitutionally guaranteed by recourse to the courts.”

Thus, the disciplinary authority of the regulatory system of sport is limited to the practice of sports and the relationships arising out of that. However, once the constitutional deadline is reached the matter can be referred to the courts to protect the rights of the individual.

However, as we will see, other jurists emeritus have attacked the exception given to sport, in allowing reliance on its own system of administrative justice.

Celso Ribeiro Bastos cites[5] the comment made by Manoel Gonçalves Ferreira Filho, in his Commentary on the Brazilian Constitution of 1988:

“The intention was to see established by law, administrative litigation to deal with occurances arising at sporting events. But, this did not sit well with the autonomy of sports bodies, when their organization and function is guaranteed under section I of this article.

In fact, this constitutes an exception to Article 5, XXXV, and a controversial one at that, since there is no equivalent in any other form of administrative litigation known in the country.

Constitutional scholar Orlando Soares, in discussing “sports litigation”, references[6] the commentary of João Lyra Filho:

“Sports justice itself acquires specific features; it cannot be directly measured by the ordinary courts, nor uniquely dealt with by reference to documents of general law in ignorance of the codes and regulations that derive from the sporting institutions themselves.

For the jurist Wolgran Junqueira Ferreira[7]:

“It was a good decision to give precedence to the sports courts to address the actions regarding discipline and competitions, over those of common justice […] No more stalling of championships because of injunctions or writs of mandamus when the object of the dispute is discipline and sports competitions. Recourse to sports justice should expire first.”.

Another scholar of constitutional law in favor of sports justice is José Afonso da Silva, who holds[8] that:

The Constitution valued sports courts when it established that the judiciary will only hear actions regarding discipline and sports competitions after all stages of consideration in the sports system have been exhausted. But there is imposed a deadline to issue a final decision, which is sixty days, after which, of course, the Judiciary may hear the dispute.

For obvious reasons, a conclusion cannot be reached on the subject without considering the explanations and justifications given by someone who participated directly in drafting art. 217 of the Constitution, one of the greatest in the world of sports law, Dr. Alvaro Melo Filho[9]:

Further, today there is no longer the immoderate and even abusive granting of ex parte injunctions, under common law, or in unnamed precautionary actions or injunctions when it comes to sporting matters. Paradoxically, the granting of such injunctions, of a provisional and temporary nature, with the primary function of protecting the applicant’s right against severe injury which is difficult to repair, has, in sport, produced the opposite legal effect, in opposition to the purposes which inform the granting of the injunction itself. Undoubtedly, though modifiable or revocable by the judge himself or on appeal by the other party, these deferred injunctions, due to the requirement of fumus boni iuris e do periculum in mora, are, in practice, absolutely incompatible with the superior requirements dictated by sports law and justice.

Similarly, the same article completes the reasoning:

Section 1 of Art. 217 of the new Constitution does not prohibit recourse to the national courts, but limits access only to circumstances where all levels of consideration and appeal within the sports system have been exhausted. The requirement of exhaustion of sports-administrative proceedings is endorsed in a long and detailed article published in the Journal of Process (Sao Paulo, Ed RT, 1983, vol . 31, page 56), and which states that “viable in practice, the Constitutional provision has adapted to the interests of sport in a way in which everyone gains: the Judiciary, which will consider only insurmountable disputes at pre-procedural level where the decision of the sport tribunal is unsatisfactory because it did not repair the harm done to the rights of the individual, because it was that forum itself that caused the injury to the individual’s rights, or becuase it missed the decision deadline; it is in the interests of the parties as they will see any penalty decided more quickly and more discretely, avoiding the fanfare that usually accompanies sport-related matters when they arrive in front of the Judiciary; and sports justice wins, having enhanced its own reputation and jurisdiction.””

A leading view from the respected constitutional commentator, Celso Bastos, concluded[10] that the exception given to the assessment of the facts inherent to sport in a specialized form of justice is nothing more than the protection of sport itself:

The Judiciary is restricted in its actions concerning sport, yet this does not extinguish the constitutional guarantee that ensures the access of individuals and other legal entites to the courts of law to defend their rights. The purpose of including this provision within the constitutional legislation was to avoid the granting of injunctions under common law and their associated irreversible and detrimental effects on sports competitions and disciplinary matters.

 

Jurisdiction

Art. 217, Section 1 of the Federal Constitution deals with the issue of jurisdiction in the area of sport:

     Art. 217 […]

  1. 1 – The Judiciary will only hear actions regarding discipline and sports competitions after all recourse to the tribunals of the sport has been exhauted, as regulated by law.

Art. 24 of the CBDJ defines the limits of the competence of sports regulatory systems. The bodies of sports justice have limits of territorial jurisdiction – ratione loci – according to the sport and its administrative body.

Sports tribunals have jurisdiction – ratione materiae – to adjudicate on cases relating to disciplinary infractions and sports competitions brought by entities recognised by the National System of Sport and all individuals and legal entities that are directly or indirectly affiliated or linked to them.

In this sense, it is the sports regulatory system, through its judicial bodies that is competent to judge on infractions of the rules and regulations of the sport and to impose a penalty in accordance with the provisions of the relevant disciplinary codes, as is highlighted by Schmitt[11]:

Sports Justice is composed of a number of sports regulatory bodies attached and bound by the limits of jurisdiction and territory of the administrative bodies of individual sports, and have the power to settle conflicts of a sports nature, limited to the consideration and prosecution of disciplinary infractions defined in the relevant sporting codes.

In Brazil, each sport or group of sports connected to the same confederation has a specific adjudicative body, called the Superior Court of Sports Justice, i.e., the Judiciary, due to its administrative, private and independent nature.

Therefore, the issue of competence in sports justice, boils down to the analysis and judgment on all matters relating to disciplinary conflicts and competitions in sports.

 

Composition, organisation and function

The system of sports justice is composed of autonomous and independent bodies responsible for the process and adjudication of disciplinary infractions in sporting competitions.

In theory, these bodies should not have any connection with the federations and confederations, however, the legislation itself creates an economic and financial dependence in stipulating that the investment in and cost of sports justice is the responsibility of the administrative bodies of sport, pursuant to art. 50, par. 4 and 52 and paragraphs of Law No. 9.615/98:

Art. 50. The organization, function and powers of sports justice, limited to the consideration of and judgment upon disciplinary infractions and matters concerning sports competitions are defined in the Codes of Sports Justice, which allow governing bodies to form their own regulatory bodies with power to deal with matters arising out of their sport and competitions. 

[…] Section 4. It is encumbent upon the administrative body of a sport to fund the activities of the Sports Justice bodies that work beside him.  

[…] Art. 52. The members of the sports justice organs are autonomous and independent entities to administer the sport of each system making up the Superior Court of Sports Justice, working with the national authorities of administration of sport; Courts of Sports Justice, when working with the regional authorities of the administration of sport and the Disciplinary Committees with jurisdiction to adjudicate on matters set out in the Codes of Sports Justice, and always provided the opportunity for a defence to be mounted and evidence cross-examined. 

Section 1. Without prejudice to the provisions of this article, the final decisions of the Courts of Sports Justice are challengeable under general law, subject to the procedural prerequisites set out in sections 1 and 2 of art. 217 of the Federal Constitution.  

Section 2. An appeal to the national courts shall not affect sporting results validly achieved as a result of the judgment rendered by the Courts of Sports Justice.

Although it is believed that this economic dependency does not cause a direct influence on judgments, it is a criticism of the current system.

The legislation itself creates a dependency of the Courts upon the administrative body of the sport for the cost of its operation.

In this respect, for those who believe that the independence of the courts is compromised, an adjustment to the legislation would be necessary in order to enable the organs of sports justice to self-manage, thus ensuring full autonomy and independence.

However, while such physical and financial dependence remains, no matter what the basis or justification, it would be unacceptable if this fact had any influence whatsoever on the decisions of the sports tribunals.

 

Superior Court of Sports Justice

The Superior Court of Sports Justice (STJD), is the highest organ of sports justice in Brazil and derives its power under art. 50 of Law No. 9.615/98, as transcribed above.

The STJD is comprised of a tribunal and disciplinary commissions and has a national dimension, having jurisdiction to adjudicate on matters concerning national administrative bodies and their members, who are also the Court’s auditors/judges, as well as disputes among regional entities, and in other circumstances set out in art. 25, par. I, of the CBJD. The STJD will also hear matters on appeal, as described in section II of the same article.

The tribunal of the STJD has nine members as adjudicators, appointed by sporting organisations and the Bar Association of Brazil, in accordance with art. 55 of Law No. 9.615/98:

Art. 55. The Superior Court of Sports Justice and the Courts of Sports Justice shall consist of nine members, including:

     I – two appointed by the sport’s administrative body;

II – two appointed by the sports clubs that participate in official competitions of the top division;

III – two lawyers with renowed sports law experience, appointed by the Bar Association of Brazil;

     IV – a representative of referees;

     V – two representatives of the athletes from their respective unions;

    

  • . 1. (Repealed). 
  • . 2. The members of the Courts of Sports Justice will be appointed for a maximum duration of four years, with only one renewal permitted.
  • . 3. It is forbidden for sporting directors of the administrative bodies of sport and of sports clubs to hold a position or function within Sports Justice, except for members of the governing boards of sports clubs.
  • . 4. The members of the Courts of Sports Justice may be graduates in law or persons of renowned legal experience and unblemished conduct.

Art. 4 of the Brazilian Code of Sports Justice repeats virtually the entire wording of Pelé’s Law on the composition of the STJD. Art. 3 defines its jurisdiction as being the same as the relevant national administrative body of the sport:    

“Art. 3. Bodies of Sports Justice, autonomous and independent of the administrative bodies of sport, whose operating costs are provided for by law, and are:   

I – Superior Court of Sports Justice (STJD), corresponding with the territorial scope sporting jurisdiction of the sport’s national administrative body;

II – the Tribunal of Sports Justice (TJD), corresponding with the territorial coverage and sporting jurisdiction of the regional administrative body of the sport;

III – Disciplinary Committees constituted before the judicial bodies mentioned in items I and II of this article.

 

There are currently over a hundred Supreme Sports Courts in Brazil, each connected to a sports administrative body, i.e., one of the governing bodies of the various existing sports in the country.

 

Disciplinary Committees

The Disciplinary Committee, as already demonstrated above, acts as a court of first instance sports justice, and is composed of five members freely nominated by their TJD[12] (regional) or STJD (national), and do not belong to the respective bodies, as indicated in the LGSD art. 53, below:

Art. 53. The Superior Court of Sports Justice, when considering matters involving interstate or national competitions, and the Sports Tribunals, function as Disciplinary Committees where necessary, each composed of five (5) members who do not belong to those judicial organs, but are chosen by them.

  • 2. The Disciplinary Committee shall consider offences and apply imposed sanctions under its fast-track procedure, including the right to a full defence and cross examination of evidence.
  • 3. Decisions of the Disciplinary Committee may be appealed to the Court of Sports Justice this and the Superior Court of Sports Justice, in the cases stipulated in the respective Codes of Sports Justice.
  • 4. The right to appeal referred to in the preceding paragraph shall apply and be processed with suspensive effect when the penalty exceeds two consecutive matches or fifteen days.

Again, the Code almost entirely repeats the text of the legislation, in its art. 6, defining the role of the Committees as being the judicial body of first instance to consider issues involving interstate or national competitions.

As stated by Antônio Sérgio Figueiredo Santos[13]:

Disciplinary committees are entitled to judge on-field offences in the first instance. Obviously, the decisions may be appealed to the full Tribunal for retrial and to the STJD when concerning regional decisions.”

In this respect it can be concluded that the Disciplinary Committees are the courts of first instance of sports justice, and, therefore, their decisions are challengeable in front of full Tribunals.

 

The prosecution

The Sports Prosecutor is responsible for taking active ownership of sports procedures to promote the responsibility and accountability of sports agents or entities who violate the provisions of the CBJD.

It is up to the court to choose an Attorney General/Prosecutor with a mandate identical to that of adjudicators.

It is incumbent upon the Prosecutor, besides filing charges in cases provided by law, to give an opinion on matters and formalise and subsequent legal action, to hear appeals or propose measures aimed at the preservation of the principles governing sports justice, to require the initiation of an inquiry when raised by third parties, as well as other functions established in regiments of the Courts. However, charges are always laid by the Sports Prosecutor. Therefore, his function can be compared to that of the Public Prosecutor in common law.

 

The Secretariat

The Secretariat is the official office of the Courts of Sports Justice.

The duties of the Secretariat are those set out in art. 23 of the CBJD and in this Code and the Procedural Rules of the Court. It will receive, record, file and establish the terms of the complaint and other documents sent to the adjudicative body and forward them immediately to the Chairman of the respective tribunal for procedural determination; call adjudicators for designated sessions, as well as compiling the evidence and statements submitted and summoning the parties; issue certificates for determinations of the President; receive, register and file appeals, finally keeping appropriate records.

Other functions, principally of an administrative nature, are often carried out by the Secretary and can be freely provided for under the procedural rules of each adjudicative body.

Art. 72 of the CBJD deals with the primary functions of the Secretariat, namely the registration and distribution processes, and makes mention that the regulation of such procedures is according to the procedural rules of each body.

 

Processes and procedures

Processes in sports justice begin from the occurrence of violations of the rules of the game, the rules of competition or the regulations contained in the disciplinary codes.

According to the CBJD itself, the elements of the process do not have to take a specific form, except where expressly required, and are deemed to be valid as long as they meet the essential purpose.

The Code also expressly provides that the proceedings are to be held in public, unless otherwise provided by law in cases requiring secrecy.

All decisions emanating from judicial authorities should be in writing and contain reasons for arriving at that decision, even if only briefly.

The penalties for athletes, clubs, management, in short, all those involved in sports events, are set out in art. 50 of the General Law of Sport in its first paragraph, as follows:

warning; elimination; expulsion from the league or tournament; requirement to pay damages; ban on participation; fine; loss of home advantage; loss of points; loss of income; suspension per match; and suspension for a longer period.

That is eleven penalties that are integrated into the CBJD, and it is noteable that:

a the warning penalty applied by judicial bodies, although only administrative, is the lightest punishment;

     b  expulsion applies to the entire sport so the guilty party cannot exercise any function or activity linked to the sport;

     c   the ban on hosting any sport competitions at a venue until it complies with certain prescribed works in order to be suitable – relates to the playing field itself, the stadium, court, etc. –, while the loss of home advantage means a team loses the right to play their matches at their home venue, regardless of whether the venue is suitable and up to standard, as a punishment;

     d  a suspension from playing is the most common disciplinary penalty of the CBJD and prevents those involved in sport from participating in games or matches in the form set out in the particular decision. Non-professional athletes can also be suspended.”

 

The referee’s report

The referee prepares a summary report of the game containing all the salient match data, including the date, location and conditions, names of the teams, players, the score, any cautions and dismissals. The report forms the record of the game and the basis for the formulation of charges by the Prosecutor.

However, an amendment to art. 58 of the Brazilian Code of Sports Justice brought an innovation, and in the words of many jurists and scholars, an irrefuteable presumption regarding the accuracy of the dockets and reports of referees and their assistants, representatives of organizations, etc.:

Art. 58. In summary, the report and other information provided by the members of the refereeing team, as well as the information provided by the representatives of sports entity, shall enjoy the presumption of veracity.

s.1  The presumption of veracity contained at the head of this article will serve as a basis for the formulation of the complaint by the Prosecutor or as evidence, but does not constitute the absolute truth.

s.2  When there is evidence of an infringement committed by the persons referred to above, the provisions of this article do not apply.

The presumption is revolutionary in sport, to the extent that it is known that errors can occur anywhere, including on the part of the referees. It is fairly common that overviews and reports from the match delegate and the referees assessor are divergent.

Regarding art. 58 of the CBJD, lawyer José Amado da Silva said[14]:

We understand that the Brazilian Code of Sports Justice should not be a means just to punish clubs, leaders and athletes, but also referees and their assistants for incompetence or deceit, which changed the outcome of the game. Article 58 establishes within the Brazilian Code of Sports Justice that the scoresheet and the referee’s report do not have an absolute presumption of veracity. It is true that by using video and photographic images you can correct flaws, punish the referee and apply proper justice. The law or a decision takes effect against all (“erga omnes”).

The summary and the match report will be prepared and delivered by the referee and his assistants within the deadline stipulated by law or regulation. Failure to observe this time limit will not prevent the initiation of proceedings by the Prosecutor’s Office, regardless of eventual punishment of those responsible for the delay.

The sport’s administrative body, when checking for any irregularities in the overviews or reports must refer them to the relevant judicial body within three days, so that the conduct of those responsible can be considered by the court.

 

Conclusion

In the study of sports law, sports justice and its processes, there is no single conclusion or definitive position to be drawn regarding captivating, subjective and constantly evolving sports discipline.

In this sense, it can be said that sports law, as a set of standards that guide the organization and practice of sport, is surrounded by principles and laws, regulations emanating from the various different forms of sport, and aims to highlight, and enforce, discipline and make the mode of practice of sport universal, as well as the legal structures which originate in it.

In relation to sporting justice, we may conclude that its purpose is to regulate the relationships within sports, their discipline and competitions, in accordance with the law, and the rules and regulations of the game, so that disputes are based on principles capable of ensuring the coherence and order essential to the practice of all sports.

Sports justice must reflect the agility and speed of sport and is, therefore, in constant evolution. The process follows the same guideline of speed, however, in its complexity, and has the effect of applying the law in pursuit of justice.

 

[1] Prof. Leonardo Andreotti Paulo de Oliveira is an Attorney-at-law in Brazil and a Doctoral Student at Universidad Rey Juan Carlos (Madrid, Spain), Professor of the LL.M in International Sports Law at the ISDE (Madrid, Spain) and of the Master in Diritto e Organizzazione Aziendale dello Sport at Sports Law and Policy Centre (Rome, Italy), Academic Coordinator of the Master in Sports Law at Escola Superior de Advocacia of the Bar Association of Brazil (OAB/SP) and TAFS Arbitrator, Judge of the Superior Court of Sports Justice of the Brazilian Football Confederation and Vice-President of the Superior Court of Sports Justice of the Brazilian National Basketball League.

[2] A federal law that deals with Brazilian sport in general.

[3] Bulos, Uadi Lammêgo. Annotations on the Federal Constitution, Toronto, McGraw-Hill, 2000, p. 1214.

[4] De Moraes, Alexandre. Constituição do Brasil interpretada e Legislação Constitucional, 5 ed. Atlas, 2005, page 2116.

[5] Celso Ribeiro Bastos, Comentários à Constituição do Brasil (Saraiva, Sao Paulo 1998), vol. 8, p. 793.

[6] Orlando Smith, Comentários à Constituição da República Federativa do Brasil, 9 ed. (Ed Forense, Rio de Janeiro 1998), p. 688.

[7] Wolgran Junqueira Ferreira, Comentários à Constituição de 1988, 1 ed. (Ed Julex, Campinas 1989), p. 1102.

[8] José Afonso Da Silva, Curso de Direito Constitucional Positivo (Ed Malheiros, Sao Paulo 2001), p. 819.

[9] Alvaro Melo Filho, Desporto Constitucionalizado, Revista de Informação Legislativa. n. 101, Brasília 1989, p. 230.

[10] Celso Ribeiro Bastos, Comentários à Constituição do Brasil (Saraiva, Sao Paulo 1998), vol. 8, p. 797.

[11] Paulo Marcos Schmitt, Comentários ao Código Brasileiro de Justiça Desportiva (Quartier Latin, São Paulo 2006) p.18.

[12] The commentaries made for the STJD can easily be applied on TJD as well.

[13] Antônio Sérgio Figueiredo Santos, Prática Esportiva: Lei Pelé com suas alterações pela Lei 9.981, de 14/07/2000, (MG, Belo Horizonte 2001), p. 61.

[14] José Amado Da Silva, Hermenêutica e Comentários à Lei Desportiva (2005), p. 176.