by: Trinca Diploma (Photo credit: Perry Grone, Unsplash)

In 2006, Purefood player Eugene Tejada fell on the court after securing a rebound. He shouted in pain as his back snapped and he lost all feeling in parts of his body.[1]In 2015, Mahindra player Michael Burtscher got injured, wasn’t paid his salary, and couldn’t negotiate a buyout.[2]The same team decided to invalidate an existing contract with Alex Nuyles upon changing its team name. What remedies do these players have? Here, I discuss how multi-employer bargaining can potentially bring players to the negotiating table.

The PBA SPK

 Like the usual employee, PBA players are covered by an employment contract – the  PBA Uniform Players Contract (the PBA SPK). I’ll skip the discussion on why professional athletes like PBA players are (and should be treated as) employees of their teams (You can find Mickey’s discussion on that here). The PBA SPK is required across the league’s 12 teams. Hence, teams like the San Miguel Beermen and the Meralco Bolts use the same contract of employment for their respective players (although their side agreements with their players may differ).

The PBA SPK has the usual provisions of a normal professional sports contract, like a morality clause to make sure players behave on and off the court,[3]a unique skills clause that allows teams to enjoin players from playing in a different league,[4]and a trade clause that permits teams to assign a player’s contract to another team.[5]It also prohibits players from engaging in other sports that may lead to injury, like wrestling, boxing, and go kart racing.[6]It also obliges players to promote the products of their respective teams (thru hotdog and beer commercials) and to join advertising activities of the league—without additional pay or compensation.[7]

I’d say that the PBA SPK is more for the benefit and protection of the team and/or league rather than the player. It doesn’t mention anything about any assistance to players who sustain career-ending injuries. It doesn’t provide any contingencies for national team call-ups. A team has no obligation to release a player for national team duties. And if ever a team doesallow a player to suit up for the flag, it’s at the player’s own risk. There’s also nothing about revenue-sharing in the profits of the league and the team, a viable avenue for increasing a player’s financial take-home. The PBA SPK does the opposite, as a player cedes his rights to the use of his image or likeness to the league and his team for free.

Can these be addressed? Yes, possibly. How? Well, it’s in these glaring pockets of silence that a union can step in with its collective voice. In this case, multi-employer bargaining can help.

Multi-employer Bargaining

Multi-employer bargaining allows several unions and employers to come together and collectively bargain.[8]Simply stated, together, all PBA players can negotiate with the PBA teams. This can potentially lead to a league-wide CBA (Collective Bargaining Agreement). Again, the operative word here is “potentially” because it will take a ton of effort to tick all the boxes required for multi-employer bargaining to take place.

So how can multi-employer bargaining apply to the PBA?

First, there must be an existing union within each of the 12 teams. Second, each team and each team’s players union must consent to multi-employer bargaining. There should be no hold-outs. That’s the dream: 12 teams negotiating collectively with 12 player unions, with one CBA to rule them all. If just one team or one players union refuses to join, then true league-wide collective bargaining will be for naught.

After ticking boxes 1 and 2, what then are possible points for negotiation?

Possible CBA Points

First, a grievance procedure, which allows the union or employer to question any issue regarding the interpretation or violation of the CBA.[9]

Currently, the PBA Constitution of Association deals with players who violate team and league policies. For player misconduct, the Commissioner has the power to suspend or fine erring players.[10]All the decisions of the Commissioner are appealable to the Board of Governors[11], which, is made up of representatives from the teams,[12]with not a single player representative in sight.[13]

The likelihood that the Board overturns the Commissioner’s sanction is slim; the Board of Governors, consisting of team representatives, can hardly be considered independent and impartial. This issue on partiality is further magnified by the fact that two groups—San Miguel Corporation and Metro Pacific Investments Corporation—dominate ownership of teams in the PBA.[14]

Second, a voluntary arbitration mechanism. The law mandates that unsettled grievances should be submitted to a voluntary arbitrator (or panel of voluntary arbitrators) who is either named in the CBA or is selected through a process outlined in the CBA.[15]This shields the controversy between the team and the player away from bias and partiality and avoids court litigation.

Third, a “No Strike, No Lockout” clause. This assures everyone involved that the employer and employee won’t conduct lockouts and strikes during the lifetime of the CBA. This theoretically guarantees a smooth season free from game cancellations, an assurance that will surely be welcomed by players (who will continue to earn for every game they play), teams (who will benefit from ticket sales and licensing royalties), and especially the fans (whose lives revolve around the fortunes and misfortunes of their favorite teams and players). Note, however, that there are exceptions to this.[16]

Finally, the creation of a labor management council to implement the players’ right to participate in the decision-making process of the team.[17]Remember that there’s not a player in sight in the PBA Board of Governors. It would be a welcome change for the players to finally have a say on decisions that ultimately affect their careers.

Aside from these four, there are also mandatory subjects in bargaining, which strike deep into the PBA SPK.[See footnote 18] Perhaps the most important provision up for negotiation is the salary of the players. As of this writing, a team’s total salary for its players must not be lower than P27M nor more than P36M.[19]According to a secret source, 5 of the 12 PBA teams don’t follow the salary cap.[20]

How do we address this? The teams, owners, and the league may agree on a luxury tax that can be imposed on teams who go over the salary cap, similar to the luxury tax imposed by the NBA.[21]While actually implementing and monitoring compliance to the salary cap may still be difficult (given the off-the-book payments presumably done behind closed doors), addressing the issue in the CBA will at least give the league and lesser-funded teams the moral and legal leverage to push for better enforcement. A cap on championship bonuses and other forms of remuneration can be placed to ensure that a level playing field starts in the board room and contract negotiations. Maybe then, lesser-funded teams will have a chance to attract bigger stars who command larger salaries. Furthermore, majority of the players who will benefit from this will be the underrepresented players or those who are not as “influential” as the big stars.[22]With proper salary adjustments and stricter implementation of the salary cap, the hope is for a more even distribution of wealth that will trickle down to role players and benchwarmers.

The CBA can also help protect veteran players by incentivizing long careers through taking the players’ seniority in consideration in increasing the minimum salary of a player depending on the number of years he’s been in the league.[23]This is vital considering the nature of the relatively short career of a basketball player.

That’s why post-career financial protection is also an important provision. Considering all the risk of injuries these players face every practice or game, it seems unjust that the issue is unaddressed.  In contrast, the NBA/NPBA CBA provides for Health and Welfare benefit plans for its players.[24]Monthly pension benefits are also allocated to its players in the amount of $572.13 (roughly about P30K), subject to CBA-stipulated increases.[25]

Lastly, the CBA can also pave the way for drug testing and rehabilitation.[26]It can provide programs for mental health well-being, especially in light of Mac Cardona’s depression and drug problem[27]which stemmed from an issue of lack of playing time.[28]Dwindling time on the court, impending retirement, adjusting to life post-basketball—these are inevitable and foreseeable problems faced by every single player, problems that weigh heavily on one’s mental health.

These are only some of matters that give players more power to impose upon the team or league certain benefits that would otherwise be unilaterally fixed (or absent) in a PBA SPK. The ability of players to demand the best (and just) possible offers to them is important considering that their careers are short-lived either due to injuries or even old age. Like any other employee, PBA players should not be denied the right to assert what is granted to them under the law.

The aftermath of Eugene Tejada’s and Michael Burtscher’s injuries should not be repeated. The contractual dispute of Alex Nuyle should not have been a dispute in the first place. Mac Cardona’s mental health should have been addressed as early as possible. And while they’re all basketball players, their problems are not basketball-centric. They share the same problems and issues with any athlete.

While the focus is solely on the PBA, the same options are available to athletes of other professional leagues in the country. The PFL, the PSL, and the PVL are in its infancy stages compared to the PBA, and the two leagues might just be the chance for player protection to grow hand-in-hand with the growth of the league and team revenues. It’s never too early to start looking forward.

Strength in unity starts today.

Associate editor Trinca Diploma is currently basking in joy over the victory of the Ateneo Blue Eagles over its archrival, the DLSU Green Archers. However, she still wishes to share this article to all athletes, including all former Green Archers. She’s hoping she could help out her Moro basketball family (including coaches, players, staff) in the future as her career in law develops.

[This post is an abridged version of the Ateneo Law Journal article of the same title co-authored by Trinca. Mickey presented the article in the inaugural Academic Paper Session of the Sports Lawyers Association Conference held in Phoenix, Arizona last May 2019.]

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[1]https://www.youtube.com/watch?v=FjwViHM61Zw

[2]Michael Burtscher, Status Update, September 30, 2015, Facebook, available at https://www.facebook.com/michael.burtscher.9/posts/747046078756135 (last accessed June 4, 2018).

[3]PBA SPK, Section 5.

[4]PBA SPK, Section 10.

[5]PBA SPK, Sections 11 and 12.

[6]PBK SPK, Section 16. It does allow a player to play golf, tennis, swimming, biking, and table tennis. It also hilariously allows a player to… jog.

[7]PBA SPK, Section 17.

[8]Id.

[9]Rules and Regulations Implementing the Labor Code, Book V, Rule I, § 1 (u).

[10]PBA Constitution.

[11]PBA Constitution of Association: Misconduct of Players

[12]Manila Bulletin, Francis Tolentino, PBA governance should include players available at https://news.mb.com.ph/2017/11/12/pba-governance-should-include-players/ (last accessed June 6, 2018).

[13]Id.

[14]Oscar Lagman Jr., Will There Be a Philippine Basketball Association Season 43? available at http://bworldonline.com/will-philippine-basketball-association-season-43/ (last accessed June 5, 2018). SMC owns the San Miguel Beermen, Ginebra Gin Kings, and Purefoods Star Hot Shots, while MPIC owns TNT KaTropa, Meralco Bolts, and NLEX Road Warriors.

[15]Labor Code, art. 273.

[16]Labor Code, art. 259 and 260 for complete list.

[17]Chan, Bar Reviewer on Labor Law, 2017 at 588.

[18]These are:

1. Wages and other types of compensation, including merit increases;
2. Working hours and working days, including work shifts;
3. Vacation and holidays;
4. Bonuses;
5. Pensions and retirement plans;
6. Seniority;
7. Transfer;
8. Layoffs;
9. Employee workloads;
10. Work rule and regulations;
11. Rent of company houses;
12. Union security agreements

[19]Richard Dy, Want to know how much the lowest-paid PBA player makes? Go to our Q & A, available at http://www.spin.ph/basketball/special-reports/minimum-salary-of-pba-player-maximum-salary-in-pba-duration-of-contract (last accessed June 9, 2018).

[20]Interview with Sports Agent (Name Requested Not to be Disclosed), throughPhone Call (June 6, 2018).

[21]Look for an article explaining the luxury tax.

[22]Interview with Sports Agent (Name Requested Not to be Disclosed), throughPhone Call (June 6, 2018).

[23][…the CBA-mandated minimum salary rises with years of service. While a second round draft pick in the NBA earned the rookie minimum of $366,931 for the 2004–2005 season, a 10-year veteran was guaranteed a minimum salary of $1,070,000. In addition to affecting provisions for minimum pay, seniority also plays a role in the aforementioned maximum individual salary limits in the NBA. For the 2005– 2006 season the maximum salary was 25% of the salary cap or $12 million for players with 0–6 years of service, 30% of the salary cap or $14.4 million for players with 7–9 years of service, and 35% or $16.8 million for players with 10 or more years of service.]

[24]NBA/NPBA Collective Bargaining Agreement, art. IV § 3 (a) (2017).

[25]NBA/NPBA Collective Bargaining Agreement, art. IV § 1 (a) (2017).

[26]James Richard Hill & Jason E. Taylor, Do Professional Sports Unions Fit the Standard Model of Traditional Unionism?, 29 J. Labor Res56, 65 (2008).

[27]Khrisma Virgilio, Cardona Reveals Reason for Attempting Suicide, available at http://news.abs-cbn.com/sports/08/14/17/cardona-reveals-reason-for-attempting-suicide (last accessed June 9, 2017).

[28]Id.