22/12
By Leonardo Neri and Barbara Oliveira
The Supreme Federal Court concluded on 12/11/2020 the trial of Direct Constitutionality Action No. 66, where the constitutionality of art. 129 of Law 11.196/05 was declared, which allows the exercise of very personal activity of services of an intellectual, cultural, artistic or scientific nature through a legal entity.
For the Attorney General's Office, the provision would be unconstitutional because it allows a legal entity to be created to conceal an employment relationship and omit the event that generates a tax obligation.
For the rapporteur, Minister Carmen Lúcia, “the valid legal rule of the model for establishing a legal relationship between a service provider and a service recipient must be guided by minimal interference in the constitutionally guaranteed economic freedom and be covered by a degree of certainty to ensure balance in economic and business relations”.
With the declaration of constitutionality by the STF, athletes are authorized to receive image rights through a legal entity to which they assign their rights, which has been a common practice.
The topic had already been discussed in the Superior Court of Justice, in the judgment of Special Appeal 74,473, where the Superior Court consolidated the understanding that the image right, in addition to the moral aspect, has a patrimonial aspect, which allows availability and transfer by the holder, since it is capable of generating revenue.
It should be noted that the understanding adopted by the STF does not make all activities provided by athletes through legal entities absolutely lawful, and circumstances can be analyzed on a case-by-case basis to assess any irregularity.