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The Brazilian Securities Commission (“CVM”) issued the Guidance Opinion No. 41, on August 21, 2023, commenting on correlations between Football Corporations (“SAFs”) and the stock market.

Introduced by Law No. 14.193/2021, the SAFs are companies which core business is the practice of professional football, both men’s and women’s, and which, in view of their corporate and governance structure, are considered corporations, subject to Law No. 6.404/1976 (“Brazilian Corporations Law”). Such supplementary regulation, however, does not necessarily entail that CVM has jurisdiction over all aspects concerning the SAFs. As is the case with private corporations, only the SAFs that seek registration as public companies or access the stock market to fund their activities are subject to CVM regulation and supervision, as defined in the applicable legislation.

Thus, CVM Opinion No. 41 outlines the intersection between the SAF Law and the regulation of the securities market, offering guidance on the alternatives for funding the sports activities developed by the SAFs and how they fall within CVM’s scope of jurisdiction. Among the main topics addressed, it is worth highlighting the following:

1. Incorporation Constiution and Capital Stock

The Opinion sets out to address the three cases of SAF formation provided for in the SAF Law, namely: (i) through the transformation of an existing club’s corporate type, (ii) by spin-off of an existing club’s football department (here it is understood as a dropdown of assets and rights that comprise the club’s football department), or (iii) by individual initiative or by an investment fund, forming a SAF without relying on pre-existing assets, rights or legal entity.

CVM clarifies that the SAF’s capital stock shall abide by the Brazilian Corporations Law guidelines, including the possibility of contributions to the SAF’s corporate capital in cash or assets subject to valuation. As applicable to corporations in general, the valuation of tangible and intangible assets, such as trademarks, sports rights of athletes and stadiums, shall be conducted by experts or specialized companies. It is recommended, therefore, that the SAF advisors pay close attention to the accounting standards and hire auditors registered with CVM to ensure the accuracy of the valuation of transferred assets and liabilities, in the event of incorporation via spin-off of a football department.

The Opinion clarifies that, notwithstanding the fact that the SAF Law requires the issuance of Class A Shares to the club or legal entity that forms the SAF, such shares are not tradable on regulated exchanges or markets, being private to the original club or legal entity. The sale of such Class A Shares requires their conversion into preferred or common shares of another class, which do not retain the original rights assigned to Class A shares by the SAF Law.

On the other hand, any common shares of another class or preferred shares issued by SAF may be traded on exchanges or regulated markets, subject to the provisions applicable to other corporations (for example, preferred shares without voting rights shall not exceed 50% of the total shares issued by the SAF). Moreover, the Opinion clarifies that there are no limitations to the possibility of acquiring common shares of other classes or preferred shares by the original club or legal entity.

2. Governance

The Opinion also points out that the rules of control and corporate governance provided for in the SAF Law do not conflict with those established in other applicable laws, and shall be construed as complementary to the guidelines set forth in the Brazilian Corporations Law.

The SAF Law prescribes governance rules specifically applicable to SAFs, such as, for instance, the restriction on the accumulation of positions by controlling shareholders, proscription to participate in the management of more than one SAF, and restrictions on the right to voice and vote at general meetings for shareholders who hold more than 10% of SAF shares and, at the same time, hold any number of shares of another SAF. For that matter, CVM directs SAFs to implement measures and controls capable of verifying and ensuring compliance with such rules.

The Opinion also clarifies that, due to the supplementary application of the Brazilian Corporations Law and, therefore, of its article 111, paragraphs 1 and 2, holders of non-voting preferred shares may acquire such right in the event of non-payment of fixed or minimum dividends. In this case, however, the voting rights acquired by the preferred shareholders may not adversely affect the rights of the original club or legal entity arising from the Class A shares held by them, such as the need for affirmative vote of holders of Class A shares for approval of certain matters provided for in article 2, paragraphs 3 and 4 of the SAF Law, such as the assignment of intellectual property rights of the SAF that have been conferred by the original club or legal entity, change of the SAF’s name, change of the identifying signs of the SAF’s professional football team, among others.

3. Stock Market Access and Securities Trading

The Opinion emphasizes the importance of the stock market as an alternative for raising funds by SAFs. As with other companies, SAFs can use the stock market to restructure debts and fund projects, by means of an initial public offering of shares or trading in other securities determined by law. It should be noted that, for this purpose, the SAFs shall adhere to the regulations applicable to other public companies, including CVM resolutions 80 and 160, which regulate issuer registrations and public offerings of primary or secondary distribution of securities.

In addition, the SAF Law allows the issuance of debêntures-fut, a specific instrument for funding the SAFs, with the resources being allocated to typical football activities. CVM Resolution 160 allows unregistered companies to carry out public offerings of debt securities, such as debêntures-fut, intended and conceived for professional investors, as well as possible restrictions on the trading of such securities on regulated markets. When the SAF chooses to publicly offer debêntures-fut or admit them to trading on regulated markets, the other rules issued by CVM in relation to bonds in general shall be observed.

Additionally, the Opinion clarifies that SAFs may issue other types of securities provided for corporations, including bonds that are not debêntures-fut, provided that they comply with applicable legal and regulatory requirements. In the event that a SAF chooses to issue bonds governed exclusively by the Brazilian Corporations Law, the specific provisions laid down in the SAF Law in relation to debêntures-fut shall not apply.

 

4. Other forms of fundraising

It is worth highlighting some fundraising alternatives that, in CVM’s understanding, may be used by SAFs or by those interested in investing in SAFs, provided that the applicable legal provisions and any specific rules issued by CVM are complied with, including:

• Investment crowdfunding: form of participatory investment raising method regulated by CVM Resolution No. 88, of April 27, 2022, whereby SAFs may raise funds by means of a public offering of securities using a specific electronic platform, with reduced liabilities and costs. It is a means of funding for small businesses, allowing the funding of up to R$15 million per year, with an investment limit of R$20,000 per unqualified investor;

 

• Issuance of tokenized securities: form of fundraising by means of the issuance of tokenized securities (“tokens“) on distributed ledger technology networks, subject to the same conditions and limits prescribed in CVM Resolution No. 88, of April 27, 2022;

 

• Investment Funds: collective investment vehicles regulated by CVM, which allow the joint application of resources in financial assets. Among the different types of investment funds that can be used as investment vehicles in SAFs, or by SAFs in their own investments, are the Equity Investment Funds (FIP), Real Estate Investment Funds (FII) e Credit Rights Investment Funds (FIDC);

 

• Securitization of credits: operations whereby SAFs may advance the receipt of credit rights held by them by assigning them to FIDCs or securitization companies, with a discount on the full amount. Amounts that may be anticipated include, for example, receivables arising from advertising, revenues from broadcasting rights, prizes or other profit sharing in a given league, rental of real estate, naming rights, future box office revenue or, also, amounts arising from player negotiations, subject to any restrictions of sports law applicable to the negotiation of such rights/receivables.

 

5. Disclosure of information

Finally, the Opinion emphasizes the importance of SAFs disclosing clear and complete information, in order to guide investors (who are often also the club’s fans) to make informed and mindful investment decisions. Hence, special attention is recommended to the description of risk factors, using balanced language that considers both positive and negative aspects of the investment opportunities presented by the SAF. Although the desire of supporters to contribute to the success of their team is understandable, CVM stresses that professionals involved in communicating securities distributions by SAFs shall not exploit this emotional aspect to promote the offer, emphasizing the need for a balanced and moderate language.

Furthermore, the SAFs shall abide by communication and transparency standards not only during public offerings, but also in their regular disclosures. CVM points out that the specific obligations of the SAF Law do not annul the general requirements provided for in CVM regulations or the Brazilian Corporations Law. The Agency recognizes the complexity of defining information relevant to SAFs and notes that public manifestation in response to news may not be mandatory, but the evaluation of acts and facts that may have an impact shall be done carefully.

6. Conclusion

The Opinion No. 41 issued by CVM renders important clarifications on the application, to the SAFs, of legal provisions and resolutions aimed at public companies and fundraisers via securities in general, providing greater legal certainty to clubs that intend to seek investment or funds in the stock market.

It is worth noting that the Opinion confirms the guidelines that CSMV Advogados has been sharing with its clients, both with regard to governance rules, capital stock composition and examples of subsidiary application of the Brazilian Corporations Law to SAFs, as well as with regard to the understanding that, as in relation to corporations in general, the supervision of their activities by CVM shall only occur when they choose to access the stock market or other forms of fundraising regulated by the Agency.