by: Mickey Ingles
Can a Philippine law compel foreign clubs to release Filipino players for national team duties?
This is the tough nut Senator Bong Go’s proposed Flag First Bill has to crack.
By way of background, during the Senate Committee on Sports hearing last October 8 to discuss our recent performance during the Aichi-Nagoya Asian Games, Gilas Head Coach Tim Cone mentioned the difficulties in getting foreign clubs to release Filipino players to play for the Philippines.
While there are already set mechanisms for the release of pro players for national team call-ups for FIBA tournaments, this wasn’t the case for the recently concluded Asian Games.
During the hearing, Senator Go noted that he is studying legislation that could and should set a national policy to prioritize playing for the national team over playing for one’s pro team abroad.
While the proposed Flag First Bill is still in its early stages of development and we don’t know for sure what it will actually say, it has to be said from the opening tip that a Philippine law requiring foreign clubs to release its Filipino players for national team call-ups will face an uphill battle in terms of implementation.
Foreign professional clubs, such as those employing our basketball standouts in Japan and Korea, are not within reach of Philippine law for the obvious reason that they are subject to the laws of their own respective jurisdictions. The same way Japanese and Korean laws do not generally have binding force within our sunny shores, Philippine laws generally do not have binding effect in Japan and Korea.
Simply put, our domestic laws do not automatically bind the teams in the B. League and the KBL.
Such a law like the Flag First Bill may work to release players from the PBA or the MPBL, but for players in the B. League and the KBL? It might be easier to get a shot off against Wemby.
So, how do release-for-national-team-duty clauses work?
It’s all about the rules and regulations of international federations trickling down to player contracts, not really about laws or national legislation.
To illustrate, Article 9.4 of the FIBA General Statutes requires national member federations (like the SBP, the Japan Basketball Association, and the Korea Basketball Association) to release players for national teams participating in FIBA Tournaments in accordance with FIBA Internal Regulations. In turn, Book 3 of FIBA Internal Regulations stipulate the procedure for calling a national team player, the mandatory release periods, and even the authority of FIBA to impose sanctions on non-releasing clubs.
These mandatory release periods are then reflected in the respective rules of the national federations and passed down (or copied and pasted) to the rules of the federation-sanctioned pro league until they are written (implicitly or explicitly) into each player contract.
This vertical trickling is how international sports law works and operates, precisely because of the territorial limitation of national legislation. Instead of relying on law, it relies on and operates via international federation rules and interlocking contracts to harmonize sporting rules across borders.
Again, not by law, but by rules and contracts.
With this said, how can a Flag First Bill actually work to compel foreign teams to release their players?
The hook starts with seeing Filipino players as Overseas Filipino Workers (OFWs). The in is through the employment contract between the Filipino player and his or her foreign team.
Under Philippine law, employment contracts of OFWs with their foreign employers must contain mandatory minimum provisions that aim to protect the OFW. These mandatory provisions discuss leaves, maximum work hours, and repatriation in the sad event that the OFW dies, among others. Without these mandatory minimum provisions in the employment contracts, the Department of Migrant Workers will not grant the Overseas Employment Certificate (OEC) for the OFW to leave and work abroad.
If the Flag First Bill wishes to use national law to get our Filipino players into Gilas for non-FIBA tournaments, then adding a release clause for national team duties as a mandatory minimum provision in player-OFW contracts might be a way to compel foreign teams to comply with a Philippine law.
The logical way it would work is that if the foreign employment contract doesn’t have the mandatory release clause, then no OEC for the player. No OEC, then no Filipino player for the foreign team.
Whether Japanese and Korean teams will like this is another matter. In our experience helping player-OFWs, their respective teams haven’t taken issue with the current mandatory minimum provisions. The entire process of getting clearances, yes because of the paperwork and delay in getting a star player and import to Japan.
But a mandatory release clause for non-FIBA-sanctioned events? Not saying this will be a dealbreaker, but teams may think twice getting a Filipino onboard.
Admittedly, while the feelings and preferences of foreign teams are not exactly the priority of national legislation, in the end, the Filipino player might not like it either, because it will theoretically limit his or her marketability to play abroad.
Given how international sports law works and the constraints of national law, it’s dizzying to think of a viable solution. Even a viable legal solution like a mandatory release clause in player-OFW contracts has its pitfalls that will affect the economic incentives of our athletes who wish to go abroad for greener pastures.
Thankfully, Senator Go stated that his proposal is subject to consultations with all the stakeholders. We look forward to seeing what solutions the proposal will actually have.
Mickey Ingles is the editor-in-chief of Batas Sportiva.
