by: Mickey Ingles (Photo cred: screenshot from Paralympics Youtube Channel)

A few days ago, #PinoyPride was again in full force as table tennis Paralympian Josephine Medina won the bronze medal at the Rio 2016 Paralympics. It was the country’s first medal in the Paralympics since the year 2000. It was an amazing achievement for Medina, a polio victim who used to compete against able-bodied athletes. (Check out one of her matches here. Inspiring stuff!)

If you remember, RA 10699 or the Athletes Incentives Act (which we previously discussed) was passed to include athletes-with-disabilities (AWDs) within the cash incentive scheme. It repealed RA 9064 which seemed to forget that AWDs deserved cash incentives for their athletic achievements just like their able-bodied counterparts.

Laudable as the Athletes Incentives Act is, there’s much to improve, especially regarding the cash incentives waiting for our AWDs. Just check out the table comparing the cash incentives for Olympians and Paralympians below:

	Olympics (Summer or Winter)	Paralympics
Gold	P10,000,000	P5,000,000
Silver	P5,000,000	P2,500,000
Bronze	P2,000,000	P1,000,000

If you skipped over the table because of all the numbers and the zeroes, here’s the problem in plain English: AWDs are entitled to only half of what their able-bodied counterparts get. Case in point: with her bronze medal in the Paralympics, Medina is entitled to P1,000,000. But if she was an able-bodied athlete who won in the Olympics, she would’ve been entitled to P2,000,000.

Sound unfair? Discriminatory?

Some AWDs seem to think so.  Twitter follower @SailabilityPhi brought this up in a series of tweets.

 

It brought us to the question, is the classification legal?

To answer that nugget, let’s look at our 1987 Constitution.

Section 1 of our Bill of Rights (that’s Article III for anyone who’s keeping count) states that no person shall “be denied the equal protection of laws.” Law students and lawyers know this as the equal protection clause, which guarantees that the law should treat each person the same manner as the next person. It doesn’t matter if you’re rich or poor, black or white or kayumanggi, old or young, well-connected or not, superhero or not, the law should treat everyone equally.

Does this mean that laws can’t classify between people?

It can! The equal protection clause allows reasonable classifications as long as these classifications comply with the following requisites:

1. The classification must rest on substantial distinction;
2. It must be germane to the purpose of the law;
3. It must not be limited to existing conditions only; and
4. It must apply equally to all members of the same class.[1]

So, how does the Athletes Incentives Act stack up to the equal protection clause? Well, it seems it hits a snag when it comes to the first and second requisites.

First, is there a substantial distinction between able-bodied athletes and AWDs?

At the outset, the distinction is clear: disability. It’s important to know the basis of the distinction because it’ll determine what test we should use. If the distinction is based on a suspect class (like race, national origin, or religion) or impinges on a fundamental right (like free speech), then we use the strict scrutiny test.[2] If it doesn’t, then we use the more permissive rational basis test.

Here, we’ll have to use the rational basis test, as disability is neither a suspect classification nor receiving less cash incentives an infringement of a fundamental right. Under the rational basis test, as long as the classification is rationally related to achieving some legitimate State interest, then it’s valid.

The State interest advanced by the Athletes Incentives Act can be found in Section 2: to promote excellence in sports by looking after the welfare of coaches and athletes and by providing incentives and benefits to athletes who succeed in international competitions. This is where the second requisite comes in. Is the distinction based on disability germane to the purpose of the law to promote sports excellence? Specifically, is giving less cash incentives to AWDs rationally related in improving sports in the country?

It doesn’t seem that way. AWDs endure the same rigorous training, participate in the same level of competition, and bring the same honor to the country the way way able-bodied athletes do. Hence, distinguishing between AWDs and able-bodied athletes for the purpose of cash incentives doesn’t further the government interest. In fact, it does the opposite. The law seems to say, “Thanks for the medals! Oh wait, you have a disability? Thanks for half the medal then!”

A gold medal is a gold medal, regardless if the medalist is an amputee or not.

Of course, it’ll be argued that before the Athletes Incentives Act was passed, AWDs got nothing for winning international competitions. That’s well and good. And AWDs are undoubtedly grateful for their inclusion. They are better off now than they were before, but the comparison here shouldn’t be with their situation before the law was passed. The proper point of comparison is with the able-bodied athletes who are in the same boat as AWDs (save for the absence of disabilities) but are entitled to twice the incentives.

It’ll also be argued that the distinction is not based on disability per se, but on the prestige of the event. The argument will go something like “the Olympics is more prestigious as the Paralympics, so our Olympians should get more.” Granted, the text of the Athletes Incentives Act supports the argument, as the schedule of incentives is based on event, and not the physical status of the athlete.

To this argument, two things can be pointed out.

First, prestige notwithstanding, the underlying distinction is still one based on disability, as participation to either the Olympics or the Paralympics depends on whether the athlete is able-bodied or has a disability. (Except if you’re Oscar Pistorius, but that’s a story for another day.)

Second, even assuming prestige is the distinction to be reckoned with, it is still not germane to the purpose of the law of promoting sports excellence. True, a distinction between the Olympics and the Asian Games can be rationally made, given the scope of the competition (worldwide v. region-wide), necessitating more cash incentives for winners in the Olympics versus winners in the Asian games. However, the same cannot be said of the Olympics and the Paralympics, which have the same worldwide scope of competition.

As can be seen, the Athletes Incentives Act is vulnerable to an equal protection challenge. If brought to court, there is a possibility that it can be struck down as violating the Constitution. We, of course, don’t want that, as we want our athletes—abled-bodied or with disability—to get the cash incentives that they deserve. The law is good law and good policy. It just needs a tweak here or there.

The hope is that RA 10699 gets amended to level the playing field between able-bodied athletes and AWDs. Via Twitter, I asked our Senate’s answer to Steph Curry if we can amend RA 10699 to grant the same incentives to AWDs. Senator Sonny Angara’s answer was promising, saying it’s “probably the way to go.”

It took nearly 14 years for AWDs to be granted cash incentives under the law. Hopefully, the next step in equality won’t take that long.

Mickey Ingles is the editor-in-chief of Batas Sportiva. Watching Josephine Medina’s matches on Youtube was inspiring.

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[1] People v. Cayat, 68 Phil 12 (1939).

[2] British American Tobacco v. Camacho, G.R. No. 163583, April 15, 2009