by: Jill Gandingco

The Good

Basketball is a spectacle. It’s poetry in motion that goes beyond the win-loss standings and individual statistics. There are no words for it, just passion and respect that ebbs and flows like Kobe Bryant’s “Dear Basketball.”^[1]

Basketball is a highly competitive sport where all involved com­pete to win. Around the world, the spotlight shines brightest for the National Basketball Association (NBA) and its premier athletes. The chase for the “W” and ultimately, a championship, is everything.

However, the NBA is also a business. Its main priority is selling a high-quality product, free from any semblance of false competition or lack of spontaneity. It’s expected to deliver thrilling games throughout the season.

Undoubtedly, competition is the cornerstone of the NBA and of basketball itself. It’s the main product—complete with wins and losses. But when one team dominates or monopolizes the standings and championships, then this competitive balance is lost.

The Bad

In an attempt to restore the competitive balance, the NBA implemented the draft system. Through the NBA Draft, teams select eligible college basketball players for their roster. The lowest-ranked teams get first crack. Essentially, they are rewarded with the opportunity of acquiring a top player by “tanking.” Thus, instead of restoring competitive balance, the draft is an incentive to play terribly.

Tanking is the strategy of deliberately losing games to secure high draft picks. Although tanking isn’t new, it’s become more prevalent in recent years.^[2]In fact, the 2017-2018 season was dubbed the golden season of tanking because at least 8 teams tanked.^[3]Evidently, tanking is problematic because it removes the spirit of an unexpected outcome, of spontaneity, of the integrity of basketball.

Last February 2018, the NBA imposed a fine on Mark Cuban, owner of the Dallas Mavericks, “for publicly stating that he informed his team that they would be better off tanking … in order to improve their position in the NBA Draft lottery.”^[4]As a response, the NBA issued a league-wide expressly stating the league’s commitment to protecting the integrity of the competition and of the game by monitoring the teams’ actions and a stern warning that any evidence or semblance of tanking would be met by sanctions from the league.^[5]Apart from the fine, did not impose other penalties.

Yet, if the NBA wants to end the tanking wars and prevent it from evolving into corruption or organized crime, then more severe penalties should be set. Unfortunately, there is no law in the United States criminalizing tanking.

The Bad: Tanking on the Rise

In the Philippine Basketball Association (PBA), tanking is definitelyon the rise. For the 2017-2018 season, I noticed a very curious case of reversetanking. Instead of deliberately losing games to acquire a top pick from the draft, the KIA Picanto team lost games, was supposed to get the top pick, but traded it away. It’s not the first time KIA has done this though. Apparently, it’s notorious for trading away top picks to dynasty teams.^[6]

Case in point: the controversial Standhardinger trade. KIA Picanto had the opportunity to acquire Filipino-German standout, Christian Standhardinger as center but they didn’t—instead, they traded their pick away to the San Miguel Beermen team.^[7]KIA Picanto’s advantage many not have come in the form of 1 rookie, but it did come in 3 veteran players with championship experience. Soon, KIA might continue losing games so that it gets onlyveteran players on their team and no rookies. It may be speculative but all of KIA’s losses, including the top pick in the draft, are tell-tale signs of tanking on the rise. This is also something that the NBA should watch out for.

As for traditional tanking, there are accusations of tanking by the Meralco Bolts.[8]There are rumors that they doing this so that they can acquire Bobby Ray Parks, Jr. in the 2018 Draft.[9]Better hope the PBA does something about this and quick!

The Legal

A comparison of the United States Code of Crimes and Criminal Procedure and the Philippine special law on prohibiting betting, game-fixing, points shaving and machinations in sports contests (P.D. No. 483) leads me to conclude that tanking could be a criminal act in the Philippines, but not in the United States.

In the U.S., “bribery in sporting contests” is defined as the “[actual, attempt, or conspiracy] to carry into effect any scheme in commerce to influence, in any way, by bribery any sporting contest, with knowledge that the purpose of such scheme is to influence by bribery that contest.”^[10]Tanking is not a criminal act under this definition because: (1) it is not a “scheme in commerce”; (2) it does not involve the exchange of money to consummate bribery; and, (3) the purpose of tanking is not to influence by bribery the result of the game; instead, it is for the purpose of securing a future gain or advantage. Therefore, tanking is not a criminal act.

In the Philippines, P.D. 483 penalizes machinations in sports contests, especially in basketball.^[11]“Game machinations” is defined as “any other fraudulent, deceitful, unfair or dishonest means, method, manner or practice employed for the purpose of influencing the result of any game, races or sport contest.”^[12]It implies a direct act or series of acts by the team without any external force. It is sufficient that the act/s can influencethe outcome of the game. Applying this definition, tanking is a fraudulent and deceitful means or practice that is employed for the purpose of influencing the order in the draft. By tanking, a team secures a future advantage, such as a better draft pick.

If NBA teams were playing in the Philippines and if PBA teams continue tanking, there would be a serious case for considering tanking as a criminal violation. The penalty that could be imposed on the owner and/or members of the organization isprision correccionalin its maximum period, which amounts to six (6) years in jail. To reiterate, tanking could be a criminal act under Philippine penal laws. Regardless, however, tanking has no place in basketball. It is the anti-thesis of competition and should be prevented, if not eradicated.

While the NBA and the PBA are businesses, it’s primarily a spectacle. It’s both winning and losing, but it’s never justlosing (especially deliberately). It’s about the integrity of basketball and the spirit of competition.

Basketball is the saga of life itself, with its endless ups and downs. It has the innate power to inspire a generation to pursue their dreams, whatever it may be; that win or lose, basketball is all about heart and hustle; and ultimately, what makes a champion is the awakened hope in trusting the struggle.

Jillian Gandingco is an aspiring lawyer who loves to travel and the Lakers (but not Lebron James). She admits that the walls are coming down for Lebron though! She is also hoping to publish a children’s book soon.

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[1]Kobe Bryant (@kobebryant), Twitter (Dec. 18, 2017, 11:36 PM), https://twitter.com/kobebryant/status/942780743779889153.

[2]Allen R. Sanderson, Tanks for the Memories: Winning and Losings in Sports and Life, University of Chicago, June 2019, at 18, (2018).

[3]Tom Ziller, Welcome to the golden season of NBA tanking,SB Nation(Feb. 26, 2018, 2:30 PM)https://www.sbnation.com/nba/2018/2/26/17052916/nba-tanking-teams-2018-draft-lottery-picks.

[4]Michael Bohlin, NBA sends memo to every team warning of punishments for tanking, 247 Sports, Feb. 28, 2018, available athttps://247sports.com/nba/boston-celtics/Bolt/NBA-sends-a-memo-to-every-team-warning-of-punishments-for-tanking-115665685(last accessed June 7, 2018).

[5]Id.

[6]Randolph B. Leongson, KIA trades top pick to San Miguel, INQUIRER, October 21, 2017, available athttp://sports.inquirer.net/269468/kia-trades-top-pick-to-san-miguel-beermen-christian-standhardinger (last accessed June 8, 2018).

[7]Id.

[8]Earl Cervantes, The Meralco Bolts Should Join the Tanking Wars, Powcast, October 9, 2018, available athttps://powcastsports.com/the-meralco-bolts-should-join-the-tanking-wars/(last accessed December 11, 2018).

[9]Showtime, Meralco, Gustong Kuhain si Parks? | Tanking in the PBA?, Showtime, N.D., available at http://showtime.com.ph/meralco-gustong-kuhain-si-parks-tanking-in-the-pba_c995a55b1.html(last accessed December 11, 2018).

[10]18 U. S. C. § 224 (a) (1994).

[11]Penalizing Betting, Game-Fixing, or Point Shaving and Machinations in Sports Contests, Presidential Decree No. 483, § 2(1974).

[12]Id., § 1 (d).