By Job De Leon
On Monday, partylist representative Mikee Romero filed House Resolution No. 388 (HR No. 388) and caused a flurry among college sports fans and media. HR No. 388 called on Congress to “stop and prohibit all collegiate and university leagues from recruiting, acquiring and using non-Filipino Citizens and Foreign Imports as players,” taking a stance on the long-standing debate that they “stop the growth and development of homegrown Filipino talents.” By contrasting these reasons with the poor performance of Gilas Pilipinas at the recently concluded FIBA World Cup, HR No. 388 seems to have taken its cues from the popularity of foreign student-athletes (FSAs) in collegiate basketball.
To clarify, a resolution is only a call to action or an expression of opinion, and since it does not actually trigger the law-making process, the member-schools of the University Athletics Association of the Philippines (UAAP) have little reason to be concerned.
But for the sake of this discussion, let’s assume that HR No. 388 inspires Congress to actually pass a law. The contents of this fictional law are straightforward: at some point in the near future, colleges and universities will be banned from fielding FSAs in athletic events. We can call our fictional law the Make Amateur Games Awesome—Ban All Young Alien Nationals Act, or simply the MAGA-BAYAN Act.
Technically, Congress can pass any law it wants, subject of course to challenge before the courts. But would the MAGA-BAYAN Act be valid and in harmony with the Constitution? Could one petition the Supreme Court to strike it down? I’d say that, based on existing legal principles and tests applied by the Court, it would be unconstitutional and Congress cannot declare this ban.
Any law must comply with the equal protection guarantee under the Constitution, which requires that people or things similarly situated must be treated alike. However, a “valid classification” granting different or special treatment is permitted if there is a “substantial distinction” between a certain group and the general class of people or things. For example, the Court has recognized that substantial distinctions exist between crimes committed through the internet and other crimes, as the former may cause greater harm or reach more victims and perpetrators of internet crimes are harder to apprehend. To address these distinctions, it upheld the provision in the Cybercrime Prevention Act that imposes a harsher penalty on these crimes than those committed through other means.
The most important elements of a valid classification are (a) a significant difference (or differences) between the subject class and the general population, and (b) the relevance of this difference or differences to the purpose of the law. There’s no one-size-fits-all standard for evaluating whether a classification complies with these elements since the Court uses different tests depending on the basis of the classification. When a classification is based on national origin, as in the case of FSAs under the MAGA-BAYAN Act, it should be assessed using the “strict scrutiny test,” because like gender and race, it is considered a “morally irrelevant trait” to legal classification.
To pass the strict scrutiny test, a law must meet two requirements: (a) it addresses a “compelling state interest,” and (b) its restrictions are the “least restrictive means” of achieving this interest. In the context of equal protection, the gist of this test is that the state has to show that targeting a class for different treatment will solve an extremely important and urgent issue of national concern, and that this classification is the least restrictive means to address this issue. Consequently, if it can be shown that the state’s goal isn’t actually a compelling interest or that there’s a less extreme way of achieving it, then the law fails the strict scrutiny test and is invalid.
So what is a compelling state interest? As one case put it, a compelling state interest “is measured by the scale of rights and powers arrayed in the Constitution and calibrated by history[,] […] akin to the paramount interest of the state for which some individual liberties must give way, such as the promotion of public interest, public safety or the general welfare.” This is admittedly a bit vague, but more specific examples identified by the Supreme Court include the protection of minors’ welfare and safety, guaranteeing fair elections and equal access to public service, and matters involving the integrity of public office. And while I recognize that the development of local athletes and winning international accolades are fine objectives, they’re hardly on the same level as protecting children’s safety and ensuring that our public officials aren’t corrupt.
The strict scrutiny test also requires that the limitations imposed (i.e. the classification) are the least restrictive means of achieving the law’s goal.
Based on HR No. 388, the MAGA-BAYAN Act would ban FSAs for the following reasons: they give an undue advantage to collegiate and university teams; they cause schools to stunt the development and growth of Filipino players; they cause schools to stop recruiting Filipino players; and they cause a lack of homegrown talent, as shown by the men’s national basketball team dismal finish in the 2019 FIBA World Cup.
Is a complete ban on FSAs really the least restrictive way to address these concerns? Even assuming that the development of Filipino athletes is as woeful as the MAGA-BAYAN Act would describe, there’s no shortage of more reasonable solutions that don’t discriminate based on nationality, such as more grassroots programs, more inclusive recruitment, more resources diverted towards training athletes, the creation of sports academies, revamping national team programs—I’m sure we could go on and on.
If the real problem is the amount of money schools spend on foreign recruits, then maybe the issue isn’t with foreigners per se but the professionalization and commercialization of amateur sports (if you believe that’s even a bad thing in the first place, but that’s a topic for another article). Point is, there are many varied ways to produce world class Filipino sporting talent, and banning FSAs is not the least restrictive means to achieve this goal.
But it isn’t just the players’ rights to equal protection which would be threatened by a law like the MAGA-BAYAN Act; the right to association of the UAAP and individual schools would also be at risk.
The right to association is a fundamental right. It’s what gives people the freedom to form unions, associations or societies for purposes not contrary to law. It also has other aspects, such as the rights of associations to choose the people with whom they want to associate, and the right not to associate with any other person or group at all.
Arguably, the MAGA-BAYAN Act would interfere with the individual schools’ and the UAAP’s right to association as it would prevent them from freely choosing the people they can associate with, e.g., prevent them from allowing their foreign students to fully integrate in their community and participate in their athletic events. It effectively decides which persons schools and the UAAP can associate with. The MAGA-BAYAN Act would also interfere with the right of individual players to associate with their Filipino counterparts as part of a particular team and the greater UAAP community of athletes.
Now, when Congress wants to pass a law limiting a fundamental constitutional right like the right to associate, the law must pass the strict scrutiny test. And, as we’ve already discussed, the MAGA-BAYAN Act fails this test, and quite badly at that.
As an aside, my friend Toby Pavon pointed out that Congress has laws that disfavor persons of other nationalities, meaning that it’s possible for Congress to discriminate against FSAs. Respectfully, I’d like to point out that there’s a big difference between the laws he cites and the fictional MAGA-BAYAN Act. The restrictions on foreigners regarding land ownership, areas of business, and the practice of professions come from the Constitution itself. Toby’s article answers the question of whether distinctions based on nationality exist and affirms that Congress can legislate along those lines. In my opinion, the proper question is whether Congress can make distinctions on the basis of race and nationality in the absence of directives in the Constitution. As to his point that tax laws grant different treatment according to the taxpayer’s nationality, many laws actually grant more beneficial tax treatment to foreign corporations than to domestic corporations in order to entice foreign investment. And at any rate, tax laws which are less favorable to foreigners do not deprive them of the freedom to earn income in or from the Philippines, which is hardly as restrictive as the total exclusion of FSAs under the MAGA-BAYAN Act.
In closing, I’d like to share a quote by Justice Oliver Wendell Holmes, Jr., who said that “the life of the law has not been logic; it has been experience.” Holmes theorized that the law is the reflection of the lived experiences of a nation. What lived experiences as a people do we want our laws to reflect?
Our fictional MAGA-BAYAN Act is premised on the assumption that there is a zero-sum game between FSAs and Filipinos in sports. I believe our lived experience in sports shows us that this isn’t true. Filipino athletes who played with and against FSAs, from Ian Sangalang to Troy Rosario, have shone brightly in their own right. Moreover, there’s also some reason to believe that Filipino athletes may be worse off in higher levels of competition if they didn’t play together with FSAs. If anything, this shows that diversity in amateur sports strengthens our athletes, and our laws should reflect (or at least not get in the way of) that truth. Let it be our shared hope that, through embracing and working with our differences as a sporting community, we can make Philippine basketball great again.
Job De Leon graduated from the UP College of Law and was a member of the editorial board of Volume 90 of the Philippine Law Journal. He currently works for a full-service law firm and is involved in a wide range of practice areas, but will always have a soft spot for constitutional law. Prior to his admission to the Philippine Bar, he covered basketball as a news producer for GMA News Online and as a contributor to SLAM PH, among other publications. The views expressed in this article are strictly his own.