After court decisions determine the SAF to pay the debts of the old clubs, the president of the Senate, Rodrigo Pacheco (PSD-MG), filed a new project to update the law and try to prevent this from happening.
The proposal also penalizes the club-company that does not fulfill the educational obligations for its base categories.
The SAF law created a centralized enforcement regime for debts incurred by companies when acquiring a football club.
The device granted at least another six years for the discharge of the amounts absorbed by the new CNPJ, unified them under a single process and defined that 20% of the revenue should be allocated to this payment.
Even so, decisions in court, especially in the first instance, were forcing the clubs-companies to pay for the old debts of the clubs.
In Minas Gerais, for example, the Labor Court has already determined that SAF do Cruzeiro should directly pay the club’s old debts. The same Court, in another decision, decided otherwise. The club is the most popular in the state.
In Rio, John Textor, owner of Botafogo, also complained when the Rio court seized the company’s assets due to the former club’s debts.
The new text, filed by Pacheco this Wednesday (7), maintains the mandatory transfer for the old company to fulfill its obligations, at the same time that it includes an excerpt that says that the company is not responsible for old debts “except for obligations expressly transferred to it” and that, except in this case, the former company is “exclusively” responsible for payments.
A new device was also created to increase the transfer of the SAF to the club, as long as it maintains its debts.
“As long as the club or original legal entity remains a shareholder of Sociedade Anônima do Futebol and registers in its financial statements obligations prior to the incorporation of Sociedade Anônima do Futebol, it must distribute, as a mandatory minimum dividend, in each fiscal year, at least 25% ( twenty-five percent) of the adjusted net profit”, proposes Pacheco.
It also determines that debts that are unrelated to the object of the SAF, that is, football, cannot be transferred.
The current text of the law says that the company cannot be pledged for the debts of the clubs, as long as it fulfills the payments of the debts it acquired. The new wording is more protective.
“Any form of restriction on the assets or revenues of the Sociedade Anônima do Futebol is prohibited, including by attachment or blocking order of values of any nature or kind, in relation to the obligations of the club or the original legal entity, prior or subsequent to the constitution of Sociedade Anônima do Futebol”, says Pacheco’s proposal.
This occurred because the interpretation of the Judiciary, especially the labor one, was that the SAF was jointly and severally liable for the club’s debts because both belong to the same economic group. The new law expressly prohibits this possibility and makes it clear that the club and the SAF are not part of the same group.
“The proposal also aims to resolve doubts regarding the non-responsibility of the Sociedade Anônima do Futebol or the original legal entity that constituted it, for the obligations of the club, except in relation to the obligations that are expressly transferred”, justifies Pacheco in his proposal.
Club creditors will be able to choose to receive SAF shares instead of cash to pay these debts, but only if the SAF authorizes the mechanism —currently, only the provision in the bylaws is required for this to be allowed.
In addition, the ownership structure of the SAF showing who owns the club with at least 5% of the shares must be made public on the team’s website.
The project also requires that one member of the board of directors and one of the supervisor be independent, following a guideline that will be made by the CVM (Securities and Exchange Commission).
Pacheco’s proposal creates a penalty for the SAF that does not develop a teaching program, as provided for in the law.
Currently, according to leaders and people in the sector, companies have not complied with this legal requirement. The new proposal provides that, if the obligation is not respected, the SAF loses the right to take advantage of the specific tax regime created for club-companies —and which benefits them in relation to common companies.
A novelty allowed by the project is that one SAF is a shareholder or shareholder of another, which could create a conglomerate of teams in the same economic group.
The new text was drawn up with the help of the same group of lawyers that assisted the Senate President’s office in the initial bill, Rodrigo R. Monteiro de Castro and José Franscisco C. Manssur — the latter currently at the Ministry of Finance.
