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The 4 Ways of Constitution of the Anonymous Society of Football (ASF)

Rodrigo Monteiro de Castro's picture
Published: 30/08/21 - Country: Brazil

A hasty reading of the Rodrigo Pacheco Law (law 14.193, of August 6, 2021) could leave the mistaken impression that the football corporation (SAF) is constituted only through the ways listed in art. 2nd, that is, by: (i) transformation of the original club or legal entity into SAF; (ii) spin-off of the football department of the original club or legal entity and transfer to SAF; or (iii) initiative of a natural or legal person or investment fund.

But this is not only what is provided for in the Law. In addition to those three ways, a fourth is expressly mentioned in art. 3rd, the only one, by the way, that allows the maintenance of the ownership or control of SAF by the club, as will be seen below.

In this sense, and in accordance with the aforementioned art. 3rd, the club may pay its share to the SAF capital by transferring its assets, such as, but not exclusively, name, brand, couplets, symbols, properties, assets, fixed and mobilized assets, including registrations, licenses, rights sports on athletes and their economic repercussion - related, in any situation, to football activity.

Through this 4th copy, the club itself will set up a SAF and transfer its assets to pay in the subscribed capital. This is an operation known as drop down.

The drop down, within the scope of the SAF, must be approved by the club members, in the form of art. 27, paragraph 2, of the Pelé Law, according to the new wording conferred by art. 34 of the Rodrigo Pacheco Law: "the entity referred to in this article may use its patrimonial, sporting or social assets, including real estate or intellectual property, to pay in its share in the capital of Sociedade Anônima do Futebol, or offer them as guarantee , in the form of its bylaws, or, if not, upon approval of more than half of the members present at the general meeting specially convened to deliberate on the subject".

As stated above, the constitutional route provided for in art. 3 is the only one that preserves the club's participation in the SAF - and that makes it possible, therefore, to use many (and necessary) instruments of control, veto and protection of diffuse interests (such as those of fans), of the club itself and of creditors . Let's see.

In the transformation, provided for in item I of art. 2nd, there is a change in the nature of the club, which changes from a non-profit association to the condition of SAF. In this case, all associates become shareholders of a company. But distinct entities are not created, that is, a club and a SAF, with the second being the first shareholder. The result of the transformation is illustrated as follows:

The spin-off, provided for in item II, consists of the operation whereby a legal entity - in this case, the club - transfers portions of its assets to one or more companies, incorporated for this purpose or already existing. The spin-off can be total or partial, with an equity version for one or more legal entities, existing or not. The Rodrigo Pacheco Law only refers to the partial split, by delimiting the segregation to the assets related to the football department, thus maintaining the other elements of the club.

The point that arises from this form of constitution of the SAF is the following: the spin-off implies the reduction of the club's equity and the consequent transfer of the spun-off assets to form the capital of the SAF; but underwriters - and holders of shares - of SAF will be all club members, not SAF itself. At the end of the operation, the members will therefore bear, in addition to the condition of club members, that of SAF shareholders, as illustrated below:

This should not be, therefore, the most desired path by the clubs, which will, and rightly, want to maintain a relationship with the SAF, to exercise the rights granted to them in the Rodrigo Pacheco Law (such as the veto on the change of name, symbol , hymn or municipality of the headquarters). More than that, in fact: it would also imply a definitive corporate breakup, making it impossible for the club to receive dividends.

The third modality, provided for in item III, involves the constitution of the SAF by a natural or legal person, or an investment fund. It is a new entity, not linked to a club, which does not affect existing teams.

The fourth constitutive way, contained in art. 3rd, is the one that, in principle, should offer the most adequate path for clubs to exercise the role that the Rodrigo Pacheco Law reserved for them, as guardian of club traditions, while preserving at least one class A action, provided for in item VII and in paragraph 3, as well as to enable the satisfaction of obligations prior to the constitution of the SAF, subject to the provisions of art. 10.

In fact, by promoting the drop down, the club will be a shareholder of SAF - and not its members - and will show, on its balance sheet, the subscribed shares, which will be released in return for the write-off of the assets transferred to SAF. Therefore, in principle, there is no loss, reduction or expansion of assets; just an exchange of positions to reflect the replacement of miscellaneous goods by stocks. On the structural plane, the result is as follows:

Conclusion: the Rodrigo Pacheco Law expressly provides for 4 ways of constitution of the SAF, which serve different situations and agents - and not just 3, as a hasty or isolated reading of art. 2nd could wrongly raise.

In any case, it would be really important that the DREI - National Department of Business Registration and Integration, a body that has been carrying out, since the beginning of the management of Director (and Professor) André Luiz Santa Cruz Ramos, a monumental work of revision, simplification, modernization and regulation of the public register of the entrepreneur, establishing and consolidating, in a specific instruction, the guidelines related to the 4 constitutive ways of the SAF. The Country will thank you. And Brazilian football too.

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Rodrigo Monteiro de Castro's picture

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).