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SAF's Governance System, Pursuant To Rodrigo Pacheco's Law and the Corporate Law
Law 14.193/21 (or SAF Law, or even Rodrigo Pacheco Law) provides for a specific governance regime for football corporations ("SAF"): in addition to the board, a mandatory body in any company, it must also have a board administration.
The board of directors is a collegiate decision-making body and is not responsible for representing the SAF, a function that is exclusively attributed to the executive board. As a matter of fact, counselors, alone, or in college, do not exercise executive functions. The body will be composed of at least 3 members, elected and removed, at any time, by the SAF general meeting.
SAF's bylaws shall establish (i) the number of members of the body, or the minimum and maximum numbers allowed, (ii) the mode of replacement and (iii) the term of office, which may not exceed 3 years, allowed the re-election. Despite the use of the expression in the singular, there is no limit on candidacies and reelections.
It is incumbent upon the board of directors, among other matters, pursuant to art. 142 of law 6.404/76: "(i) establish the general orientation of the company's business; (ii) elect and dismiss the company's officers and establish their duties, subject to the provisions of the bylaws; (iii) inspect the management of the officers, examine, at any time, the company's books and papers, request information on contracts entered into or to be entered into, and any other acts; (iv) call the general meeting when deemed convenient, or in the case of article 132; (v) to express its opinion on the management report and the accounts of the executive board; (vi) to express its opinion in advance on acts or contracts, when the bylaws so require; (vii) to resolve, when authorized by the bylaws, on the issuance of shares or subscription bonus; (viii) authorize, if the bylaws do not provide otherwise, the sale of non-current assets, the constitution of real liens and the provision of guarantees to third-party obligations; (ix) choose and dismiss the independent auditors es, if any".
There is no legal impediment for an associate or member of any body of the club that constitutes the SAF to exercise, in it, the position of board of directors. However, if he is elected and, cumulatively, fulfills both requirements, that is, he is a member and participates in any administrative, deliberative or supervisory body in the club, he will not be able to receive any remuneration from SAF.
The prohibition extends to indirect forms of remuneration. Thus, only (i) members who do not have a specific role in the club or (ii) members outside the club may be paid.
The SAF board of directors must be composed of 2 or more directors, pursuant to art. 143 of law 6.404/76, elected and removed at any time by the board of directors.
The bylaws shall address, among other issues, on (i) the number of directors, or the maximum and minimum allowed, (ii) the mode of replacement and the term of office, which shall not exceed 3 years, reelection permitted (without limit of times) and (iii) the attributions and powers of each director.
Up to 1/3, at most, of the members of the board of directors may be part of the executive board (accumulating, therefore, positions in both bodies).
On the other hand, the SAF Law prohibits the election to the position of an employee's board or member of any body, elected or not, of administration, deliberation or inspection of the club that created the SAF, while it remains a shareholder.
SAF directors must dedicate themselves exclusively to it, only partial occupation being prohibited, subject to any statutory determinations.
SAF will also have, obligatorily, a fiscal council, which will function on a permanent basis. Its composition will have at least three and, at most, five members, and alternates in equal number.
According to art. 162 of law 6.404/76, only natural persons residing in the country, graduated in a university degree, or who have held a position of company administrator or fiscal councilor for a minimum period of three years, can be elected to the body.
Furthermore, they cannot be elected to the fiscal council, in addition to the persons listed in the paragraphs of art. 147 of Law 6,404/76, members of management bodies (thus, the board of directors or the executive board) and employees of SAF or of a controlled company or of the same group, and the spouse or relative, up to the third degree, of a SAF administrator .
It is incumbent upon the fiscal council to (i) supervise, by any of its members, the acts of the SAF managers and verify compliance with their legal and statutory duties, (ii) give an opinion on the annual management report, including in its opinion the information supplementary items deemed necessary or useful for the resolution of the general meeting, (iii) opine on the proposals of the management bodies, to be submitted to the general meeting, regarding the modification of the share capital, issuance of debentures or subscription bonus, investment plans or capital budgets, distribution of dividends, transformation, incorporation, merger or spin-off, (iv) denounce, by any of its members, to the management bodies and, if they do not take the necessary measures to protect the company's interests, to the meeting general, the errors, frauds or crimes that they discover, and suggest useful measures to the company, (v) call the ordinary general meeting, if the bodies of the administration to delay for more than a month this call, and the extraordinary one, whenever serious or urgent reasons occur, including in the agenda of the meetings the matters they deem necessary, (vi) to analyze, at least quarterly, the balance sheet and other prepared financial statements periodically by the company, (vii) examine the financial statements for the fiscal year and give an opinion on them, and (viii) exercise these attributions, during liquidation, in view of the special provisions that regulate it.
The attributions and powers conferred on the fiscal council cannot be delegated.
Paragraph 1 of art. 5 of Law Rodrigo Pacheco establishes common impeditive rules, applicable to the board of directors, the fiscal council or the board of directors of SAF. In this sense, the following persons cannot be part of these bodies: (i) member of any management, decision-making or supervisory body, as well as an executive body, of another SAF; (ii) member of any management, deliberation or supervisory body, as well as of an executive body, club or original legal entity, except for the one who originated or constituted the SAF itself; (iii) member of a management, deliberation or supervisory body, as well as of an executive body, of a national or regional management entity; (iv) professional football athlete with a current sports employment contract; (v) active soccer coach with a contract entered into with a club, original legal entity or SAF; and (vi) active soccer referee.
These impediments are in addition to the others applicable to all or any of the bodies of the corporation, pursuant to Law 6,404/76.
Finally, it should be noted that, during the legislative process, an important rule was abandoned, contained in PL 5.516/19, originator of Law 14.193/21, which provided that while the club was the sole shareholder of SAF, at least the half of the board of directors should be made up of independent members, adopting the concept of independence established by the CVM for publicly-held companies.
Despite the absence of the rule, there is nothing to prevent similar content from being included in the SAF bylaws at the time of its constitution. In fact, this forecast may give more credibility to the football-business plan defined by the club, when creating the SAF, or by the SAF itself.
Finally, law 14.193/21 offers a set of rules in which governance rules are inserted that open a new perspective for teams and investors in the Brazilian market.
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).