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CBF and the Guidance Letters for the Establishment of SAF
The CBF issued, on January 18, 2022, the Official Letter CBF 246/2022 ("Official 1"), addressed to the presidents of state federations, which deals, among other topics, with the constitution of the football joint stock company ("SAF" ).
Item 1 of Official Letter 1 establishes that, pursuant to art. 2 of the SAF Law, the SAF can be constituted according to the following modalities:
- Mode 1: by transforming the original club into SAF;
- Mode 2: by splitting the football department of the original club and transferring its assets and rights related to football activity; and
- Mode 3: by the initiative of a natural or legal person or investment fund to create a SAF.
Letter 1 also states that: the constitution of SAF based on Modality 3 will follow the registration standards in the registration system of a new club; in Modality 1, the registration of the transformed club will be the same as that of the SAF, with the maintenance of the existing registration code in the Gestão WEB system; and, in the case of Modality 2, a new registration will be promoted on behalf of the SAF, in addition to the inactivation of the registration of the club that constituted it, for any category.
Official Letter 1 also provides guidance on the fees levied as a result of the constitution of the SAF: exemption, for Type 1; double the fee due for club professionalization cases, for Type 2; and the same fee charged for registering a new club, for Sport 3.
Regarding the registrations of athletes and coaches, it is also informed that, in Modalities 1 and 3, transfer will not be carried out because, in the first, the SAF will remain in the same existing registration and, in the third, the act of registration will be original. For Modality 2, considering that the SAF will have a new registration, then it is necessary to "change the contractual instruments registered in the Web Gestão system, through the execution and registration of new instruments between athletes and the new employer", that is, the SAF.
Important: it was also determined that the process applicable to Modality 2 could only be carried out in a period when the club was not competing in a national competition. This, in practice, implied the setting of windows, throughout the year, so that a club could carry out the constitution of the SAF, within the scope of that modality.
Finally, it was indicated that the transfer of the training club certificate to the SAF would be conditioned to the issuance of a declaration of maintenance of the same conditions and structures presented during the original certification process.
Months after the issuance of the Official Letter, the CBF issued, on June 29, 2022, the new Official Letter CBF 3205/2022 ("Notice 2"), containing additional clarifications on the constitution of SAF.
The main motivator of Office 2 is the removal of the restriction, provided for in Office 1, for the constitution of SAF during the national competition in which the constituent club participated.
The beginning of the "sports succession process was then admitted, at any time of the season, provided that the transformation or formal constitution of the SAF, in any of the modalities 1, 2 or 3, is duly registered, by means of a request filed with the DRT -CBF, through the respective affiliated Federation".
Official Letter 2 also establishes, among other topics (which are not addressed in this text), that the sporting succession will not imply - as in fact it should not imply - the "appreciation or any responsibility of the CBF regarding the content of the constitutive acts of the SAF and /or process that authorized the creation of the SAF and effected the payment of rights (...)".
Finally, Official Letter 2 brings new and relevant guidance, referring to the affirmation of the succession of SAF in "all ongoing procedures, whether in the active or passive pole, with any of Organs judicial bodies provided for in the CBF Bylaws, and may even the club in the form of SAF be sanctioned for any breach of the original club's decisions or obligations".
This attribution of succession will be dealt with in due course and in the future.
For now, only (i) the issue of the list of modalities of constitution of SAF provided for in the two Official Letters and (ii) the implicit understanding regarding the concept of spin-off that has been adopted by CBF in the context of the constitution of SAF
Regarding the list of constitutive modalities, the SAF Law lists in art. 2, in effect, the three modalities provided for in the Official Letters; but also recognizes, in addition, in art. 3, a fourth modality, consisting of the drop down (or transfer of assets from the club to a SAF, without the transference, that is, the club, being split off). Remember, by the way: a spin-off is a type of corporate transaction typified and subject to specific rules, provided for in the Brazilian Corporation Law.
The existence of this fourth modality, within the scope of the SAF Law, which is, by the way, the path that has been adopted by Brazilian clubs - such as Cruzeiro and Botafogo -, is also consolidated, at the infralegal level, in the Normative Instruction DREI/ME 112, of January 20, 2022.
This does not mean, from a practical point of view, that the CBF is rejecting and rejecting the fourth modality - something it could not do, by the way, because it is provided for and stems from federal law.
But it seems to indicate that it (the CBF) understands that the term spin-off, applied to Type 2, applies both to corporate spin-off (in the form of the Brazilian Corporation Law), and to the modality that will be called, here, atypical spin-off ,
consistent, pursuant to art. 3 of the SAF Law, in the possibility of paying, by the club, "its share of the capital stock in Sociedade Anônima do Futebol through the transfer to the company of its assets (...)".
This conclusion is evidenced by the following fact: of all the main SAFs constituted to date, none resulted from a corporate spin-off, but via the drop down (ie, an atypical spin-off).
Although the Official Letters are serving, explicitly and implicitly, to guide sports agents and investors involved in SAF constitution operations, the CBF could, just for clarification purposes - and to offer total systemic security -, promote the edition of complementary guidance , in order to indicate that the procedures and reflexes related to Type 2 apply both to the corporate spin-off (art. 2 of the SAF Law), and to the drop down (or atypical spin-off), pursuant to art. 3rd.
The CBF, with this, would reinforce its beneficial guiding and normative performance, within the scope of its competences, in the formation of the new system established by the SAF Law.
Rodrigo Monteiro de Castro is specialized in corporate and business laws, corporate transactions (M&A), capital markets and contracts.
He holds a Master’s degree and a PhD degree in Commercial Law from PUC-SP. MBA from INSPER. Founder and Former Chairman of the Institute of Applied Corporate Law (“Instituto de Direito Societário Aplicado – IDSA”) (2004-2010). Chairman of the “Movimento de Defesa da Advocacia – MDA” and a member of the Organizing Committee of the Brazilian Congress of Commercial Law (“Congresso Brasileiro de Direito Comercial”). Chairman of the Monitoring Committee for the New Brazilian Commercial Code of the São Paulo Bar Association OAB/SP). Professor of Commercial Law at the Mackenzie Presbiterian University. Author of several books and papers and co-author of Bill No 4,303/12 (Sociedade Anônima Simplificada) and Bill No 5,082/16 (Soccer Corporation).