|The CVM denies the constitution of a soccer players' investment fund|
ASK RendaCerta Gestora de Recursos S.A. ("ASK") appealed against the decision of the Superintendence of Relations with Institutional Investors (“SIN”), which denied permission to create an investment fund that would invest funds in the "economic rights" of soccer players. Governed by Instruction 409/04, the fund would be constituted as a closed end fund, with an estimated duration of five years, and the target-public would be retail investors, with minimum initial investment of R$ 100.00.
ASK conceptualized "economic rights" as those resulting from negotiation between soccer clubs; the transfer of the employment relationship of professional athletes; and the possibility to register their employment contract with soccer federations.
In its analysis of the appeal, the Specialized Federal Attorney’s Office (“PFE”) stated that the economic rights would be comparable to receivables, which have their own regulations, representing the right to any future credits and not the actual credit or security, contract or operational category, under art. 2, § 1, VIII, Instruction 409/04. They would therefore not be able to compose the portfolio of a fund governed by the aforementioned instruction. . Following the understanding of the PFE, the SIN dismissed the request for the creation of the fund.
ASK appealed the decision. It claimed that the "economic rights" arising out of any negotiations of players would not trade receivables, but credits effectively, which would place them in a category of contract established in the aforementioned article of Instruction 409/04.
Director Eli Loria, rapporteur of the case, dismissed the appeal, saying the "economic rights" claimed by ASK are of the nature of credit rights of future and uncertain existence, but emerging from already constituted relationships, which fall under the provisions of article 1, §1, VI, of Instruction 444/06. For this reason, they present characteristics that are complex and incompatible with the risk profile of an unqualified investor. The autarchy’s collegiate followed the voted with the rapporteur. (RJ Case 2009/9811)