Banning Foreign Student-Athletes, Legal or Not?

by: Mickey Ingles

The National Collegiate Athletic Association (NCAA) recently announced that starting 2020, it will ban foreign players from suiting up for their respective schools. Some welcomed the rule, claiming that it would give Filipinos a chance to finally shine. Others stated the rule was essentially racist—especially since this clamor against foreign players only started when African players started dominating the playing grounds. It’s a hot topic, definitely.

The question to be answered in this post will also have folks on either side of the fence: is such a rule legal?

Here’s what I’ll do. Since this is an unanswered and unsettled issue, I’ll lay down the two underlying legal issues, and you all can argue to your heart’s content.

Healthy debates only, okay? Game?

First: can we legally discriminate?

Well, every time the word discrimination is thrown around, the Equal Protection Clause (EPC) of the Constitution’s Bill of Rights comes to play. We previously discussed the EPC in our article on athletes-with-disabilities, but just to recap, the EPC states that all those similarly situated should be treated alike, as to rights and responsibilities. It does not prohibit classification. In fact, it allows reasonable classification, i.e. folks can be treated differently under the eyes of the law, as long as the classification:

  1. rests on substantial distinctions;
  2. is germane to the purpose of the law;
  3. is not limited to existing conditions; and
  4. applies equally to all members of the same class.

Thing is, the Bill of Rights applies against government action. The NCAA is a private organization. So, strictly speaking, the Bill of Rights can’t be used to question the rule…

What?! So why discuss the EPC in the first place?!

I discussed it because of Article 32 of the Civil Code, which applies the Bill of Rights to private actors like the NCAA. So, yes, private actors aren’t free to discriminate willy-nilly; they still have the Civil Code to contend with.

So back to the four requisites above. If you want to argue that the NCAA rule is valid, then you have to make sure you answer yes to every requisite. If you end up with a no for just one requisite, then the rule is invalid. Go on, give it a try.

Note though that the Supreme Court has already ruled on a number of cases that alienage is a substantial distinction. That makes the first requisite a yes. So, whatever arguments you’ll have for or against your stand will probably deal with the last three requisites.

Second: shouldn’t student-athletes be protected from rules like this?

Well, every time student-athletes and protection are thrown around in the same sentence, then the Student-Athletes Protection Act (SAPA) comes into play. When it comes to foreign players, the SAPA is noticeably silent… except, that is, when it talks about residency requirements. Section 4 of the SAPA enumerates the different residency rules that athletic associations must comply with (we discussed those rules in our first article and our article on Ricci Rivero). However, the SAPA makes it explicit that these are “without prejudice to the respective residency rules of athletic associations on student-athletes who are foreign imports.”

For those in favor of the ban, the provision seems to be a breakaway slam dunk (without Lebron anywhere in the court to embarrassingly hunt you down). If athletic associations are allowed by law to craft their own rules regarding foreign imports, then surely it can impose a total ban on them.

For those who think the ban is crap (not a legal term and not to be used in pleadings), the argument would be that the provision should be interpreted within context of the entire law. And since the law is concerned with residency requirements, then the interpretation shouldn’t allow total bans.

Why? Well, because residency requirements presuppose the players can eventually play once the requirements are complied with. That’s the nature of residency requirements. If the law allowed total bans, then it should’ve said so outright. Under this argument, Section 4 would be interpreted in this manner: “foreign imports can play… eventually. When this ‘eventually’ will be is up to the athletic associations.”

The EPC (via the Civil Code) and the SAPA (along with the issue on whether participation in sports is a right or privilege—which I won’t discuss because it’s pretty unwieldy and my laptop is about to die) will form the legal framework on debates whether the NCAA rule banning foreigner imports is valid or not.

The arguments above are by no means exhaustive. There are definitely more for either side. And we want to hear your thoughts on it. Which legal side are you on? Leave your comments below!

Mickey Ingles is the editor-in-chief of Batas Sportiva. He wonders, “is there a power bank for laptops?”



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