Fred – advogados das partes não “agem” – audiência ainda não foi agendada
A novela Fred ainda se arrasta. Apesar de muitos indicarem que entre o Flu e o jogador estar tudo certo, as coisas ainda não estão 100% acertadas. Temendo uma briga judicial, o stafe do jogador e a diretoria tricolor aguardam pela audiência de julgamento, ainda não agendada, para dar sequência nas negociações. Inicialmente, estima-se que o tempo de contrato seria até o final de 2021. Em relação aos vencimentos, o Flu já avisou que não fará loucuras e que Fred terá de se adequar à nova realidade tricolor. Mas, até o fechamento da matéria, o que se observa nos autos do processo é uma inércia, de ambas as partes.
Se por um lado o Cruzeiro não ingressou com nenhuma petição tentando derrubar a liminar concedida ao atacante – ainda está no prazo – do outro, os advogados do jogador ainda não emendaram a petição inicial, conforme determinado na decisão que deferiu a liminar rescindindo indiretamente o contrato de trabalho, o que permite que o atleta assine com qualquer clube. E tal emenda também é o motivo de ainda ter sido agendada a data da audiência.
Na decisão, o juiz André Vitor Araújo Chaves, da 1ª Vara do Trabalho de Belo Horizonte, determinou o seguinte (decisão completa abaixo): “Ante o exposto, com fulcro no art. 312 do CPC, DETERMINO a emenda da inicial, no prazo de 15 dias, a fim de que: a-) o autor aponte o valor do pedido C.5, observando o proveito econômico a ser obtido pelo reclamante; e b-) corrija o valor da causa, observando o comando do art. 212, VI, do CPC. Tudo sob pena de extinção do processo sem resolução do mérito, na forma do art. 330, I, § 1º, I, do CPC, combinado com art. 485, I, também do CPC”.
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Ou seja, os advogados de Fred precisam apontar os valores de cada um dos pedidos, ainda que por estimativa, a partir de cálculos que apresentem, ao final, a real expressão econômica das pretensões do jogador, para as finalidades já indicadas na nova legislação trabalhista, que interfere diretamente no curso dos processos no judiciário.
Em outro trecho da decisão, o magistrado ainda suspende a audiência agendada para o início do mês, exatamente por este motivo: “Cancela-se a audiência designada, ante a necessidade de emenda da inicial”. Isso quer dizer que os advogados do jogador precisam apresentar tais cálculos sob pena de extinção do processo (e aí ter que começar tudo de novo) e agilizar a nova data da audiência, para que o processo siga seu curso natural.
Curiosamente, dentre os advogados do clube mineiro está o Dr. Carlos Theothônio Chermont de Brito, que também advoga para o ex-tricolor Pedro. A defesa do Cruzeiro ainda não apresentou qualquer petição tentando derrubar a liminar concedida, mas ainda estão no prazo. Apesar de não conversarem com a imprensa, alguns afirmam que o time de azul tentará a composição de um acordo, costurando assim o fim do imbróglio. Além do mais eles já acertaram o retorno de Marcelo Moreno, que viria para suprir a carência do ataque mineiro.
Trocando em miúdos: as partes ainda não agiram. Fred não emendou a inicial e o Cruzeiro não apresentou qualquer tentativa de cassar a liminar concedida. E enquanto não agirem, o processo não anda – ou será extinto – e se o processo não anda…
ST
DECISÃO
Vistos.
Trata-se de RECLAMAÇÃO TRABALHISTA movida por FREDERICO CHAVES GUEDES em face de CRUZEIRO ESPORTE CLUBE, com requerimento de concessão de tutela de urgência de natureza cautelar ou, sucessivamente, tutela de urgência de natureza antecipatória.
Alega que o réu vem sistematicamente descumprindo obrigações inerentes ao contrato de trabalho, destacando os salários desde outubro de 2019 e o décimo terceiro de 2019. Sustenta que o salário de setembro de 2019 foi quitado em três parcelas, a última paga em fevereiro do corrente ano. Não descuida, ainda, de afirmar a mora do réu no pagamento das parcelas relativas à cessão do direito de imagem, no reembolso da multa compensada pelo Clube Atlético Mineiro por ocasião da sua transferência, e, por fim, no recolhimento do FGTS.
Apega-se, no ponto, ao art. 31 da Lei n. 9.615/1998.
Requer, ainda, a tramitação do feito sob segredo de justiça.
Atribui à causa o valor de R$10.000.000,00 (dez milhões de reais). Pois bem; de início, INDEFIRO a tramitação do feito sob segredo de justiça, porquanto a lide não versa sobre dados protegidos pelo direito constitucional à intimidade. Decerto, nessa categoria não se enquadram disposições sobre o contrato de trabalho do reclamante. Ademais, sobre o inciso IV do art. 189 do CPC, invocado pelo autor
na exordial, oponho que não há cláusula versando sobre arbitragem nos contratos firmados pelas partes.
De outra banda, da leitura atenta da inicial, verifico que o autor, embora formule causa de pedir relativa ao não recolhimento do FGTS (item 10.3, fl. 4) não formula o pedido correspondente. Ante o exposto, com fulcro no art. 312 do CPC, DETERMINO que o autor emende a inicial, no prazo de 15 dias, formulando pedido de pagamento do FGTS não depositado, ou esclareça que não o pretende fazer (já que a ausência de depósito do FGTS também sustenta o pedido de rescisão indireta), sob pena de indeferimento da inicial, no ponto, na forma do art. 330, I, § 1º, I, do CPC, combinado com art. 485, I, também do CPC.
Ainda no campo da regularidade da petição inicial, verifico que o pedido C.5 não está liquidado, como determina o determinado pela §1º, do artigo 840, da CLT, com a redação dada pela Lei n. 13.467 de 2017. Oponho que mesmo os pedidos relacionados às obrigações de fazer, especialmente quando possuírem conteúdo econômico estimável (no caso, o próprio valor que o reclamante pretende ver liberado), devem ter um valor a eles atribuídos. Verifico, ainda, que o valor atribuído à causa, R$10.000.000,00 (dez milhões de reais), não guarda correspondência com o seu conteúdo econômico, o que pode ser percebido pelo simples fato de apenas o pedido B estar liquidado em R$50.000.000,00 (cinquenta milhões de reais) e a planilha de fl. 56 apontar um total de R$25.194.071,64 (vinte e cinco milhões, cento e noventa e quatro mil, setenta e um reais e sessenta e quatro centavos) como devidos ao reclamante (correção até 31 de janeiro de 2020).
Ressalto, por oportuno, que, embora não se exija precisão matemática do autor, a indicação dos valores, ainda que por estimativa, deve guardar relação com o conteúdo econômico da causa de pedir, sob pena de se tornar letra morta a inovação legislativa e permitir a atribuição de valores aleatórios. Ademais, a indicação do valor dos pedidos iniciais, no processo trabalhista, atualmente, tem dupla finalidade: a definição do rito a que submetida a ação, e, agora, a aplicação do princípio da sucumbência (art. 791-A, da CLT), já que o reclamante poderá ser condenado ao pagamento dos honorários advocatícios à parte contrária, calculados exatamente sobre o valor dos pedidos com relação aos quais não obtiver êxito. É verdade que tem se admitido o apontamento dos pedidos iniciais “por estimativa”. Mas o que é estimar? Segundo o dicionário Aurélio, a par de outros significados, estimar é “Determinar por cálculo ou avaliação o preço ou o valor de;”. Dessa maneira, é evidente que o artigo 840, § 1º, da CLT, exige o apontamento do valor de cada um dos pedidos, ainda que por estimativa, a partir de cálculos que apresentem, ao final, a real expressão econômica das pretensões do autor, para as finalidades já indicadas acima.
Ante o exposto, com fulcro no art. 312 do CPC, DETERMINO a emenda da inicial, no prazo de 15 dias, a fim de que: a-) o autor aponte o valor do pedido C.5, observando o proveito econômico a ser obtido pelo reclamante; e b-) corrija o valor da causa, observando o comando do art. 212, VI, do CPC. Tudo sob pena de extinção do processo sem resolução do mérito, na forma do art. 330, I, § 1º, I, do CPC, combinado com art. 485, I, também do CPC. Superadas estas questões, passo a análise do requerimento de concessão de tutela de urgência de natureza cautelar ou de natureza antecipatória, considerando que as irregularidades apontadas acima são, na essência, sanáveis e não prejudicam o ponto central em debate.
Fixo, pois, de início, que a espécie não versa sobre tutela de urgência requerida em caráter antecedente, mas incidental, considerando que o autor já formulou a integralidade da ação. Igualmente, considerando o objeto do pedido, fixo se tratar de REQUERIMENTO DE TUTELA PROVISÓRIA DE URGÊNCIA DE NATUREZA SATISFATIVA , porquanto tem por objeto antecipar os efeitos da tutela definitiva, conferindo eficácia imediata ao direito afirmado.
Dito isto, tenho por preenchidos os requisitos do art. 300 do CPC.
Com efeito, embora falte a parte das alegações um mínimo de elementos que evidenciem a probabilidade do direito, notadamente porque pagamento é fato extintivo, sendo ônus do devedor produzir esta prova, em relação ao FGTS o reclamante foi capaz de demonstrar a probabilidade do direito. É que se não existem documentos dando conta da mora nos salários, parcelas de direito de imagem e no reembolso da multa compensada pelo Clube Atlético Mineiro, o de fl. 51 (extrato do FGTS emitido em 28/1/2020) demonstra à exaustão o não recolhimento do FGTS desde abril de 2019.
A situação se amolda, assim, ao art. 31, caput e § 2º da Lei n. Lei n. 9.615/1998, in verbis:
“Art. 31. A entidade de prática desportiva empregadora que estiver com pagamento de salário ou de contrato de direito de imagem de atleta profissional em atraso, no todo ou em parte, por período igual ou superior a três meses, terá o contrato especial de trabalho desportivo daquele atleta rescindido, ficando o atleta livre para transferir-se para qualquer outra entidade de prática desportiva de mesma modalidade, nacional ou internacional, e exigir a cláusula compensatória desportiva e os haveres devidos. (Redação dada pela Lei nº 13.155, de 2015)
§ 1º. (…)
§ 2º. A mora contumaz será considerada também pelo não recolhimento do FGTS e das contribuições previdenciárias”.
(destaques não são do original).
De outra banda, sobre o perigo do dano, se mostra até mesmo intuitiva sua presença no caso concreto, já que a demora na satisfação do direito do autor em ver rescindido o seu contrato de trabalho implicará, por certo, impedimento no exercício da profissão e na remuneração daí obtida. Oponho, ainda, nos contratos com obrigação de fazer de natureza personalíssima, sejam cíveis ou trabalhistas, não é possível obrigar o devedor a prestação, ou, no caso do direito do trabalho, obrigar o empregado a prestar serviços, resolvendo-se a questão em perdas e danos e na aplicação de eventuais multas contratuais. Assim, para que não se cogite de perigo da irreversibilidade, mesmo na hipótese de revogação da tutela por qualquer meio, seria impossível e inconstitucional obrigar o autor a prestar o serviço, mas apenas a indenizar o réu. Destarte, a tutela jurisdicional antecipada objetiva mesmo é assegurar o direito do autor ao exercício da sua profissão, já que para praticar futebol por outra agremiação depende da rescisão do presente contrato.
Ante o exposto, DEFIRO a tutela de urgência requerida para DECLARAR a rescisão indireta do contrato de trabalho do autor, FREDERICO CHAVES GUEDES, com o réu, CRUZEIRO ESPORTE CLUBE, na data de 17 de fevereiro de 2020, na forma do artigo 31, § 1º, 2º e 5º, da Lei n. 9.615/1998.
Cancela-se a audiência designada, ante a necessidade de emenda da inicial.
Observe a Secretaria para necessidade de designação de nova audiência inicial.
Intimem-se as partes desta decisão.
Assinatura
BELO HORIZONTE, 17 de Fevereiro de 2020.
ANDRE VITOR ARAUJO CHAVES
Juiz(a) do Trabalho Substituto(a)
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Wang Shouren은 날카롭게 말했습니다. “계속 활을 당기십시오. 다른 사람들이 쉬고있을 때 쉬면 안됩니다.”
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Fang이라는 개자식, 폐하가 우리 뼈를 부러 뜨리도록 여전히 격려하고 싶습니까?
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Zhang Yuanxi는 걷는 것이 매우 어려운 것처럼 절뚝 거리는 것처럼 보였습니다.
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Liu Jian과 다른 사람들이 더 이상들을 수 없다는 것입니다.
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물론 Wang Xizuo는 오랫동안 Daming에 있었고 물론 Daming에 대한 큰 선견지명을 가지고 있습니다.
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