Does the PBA own Japeth?

Those who have read Thomas Paine, in his famous pamphlet Common Sense,may have very well known of the simple thumbrule that “a long habit of not thinking a thing wrong, gives it a superficial appearance of being right and raises at first a formidable outcry in defense of custom.”

In thinking along that line, I am driven by curiosity to take a deeper look into the curious case of Japeth Aguilar, the PBA’s top draft pick of 2009.

For starters, let me throw this question: “Does the PBA own Japeth? “

The question leads us to think whether or not this is a judicial question.

The PBA Board, chaired by Lito Alvarez who represents Burger King (the team that drafted Japeth), has barred Japeth from playing in the PBA with the Smart Gilas, the country’s national developmental team. That means Japeth’s choice to hone his skills with the national team and playing for the interest of the country instead of the PBA and Burger King has been rendered moot by the PBA Board’s ruling.

The PBA has asserted in several fora that a player like Japeth who has applied for the PBA draft cannot suit up for any other team even outside the PBA. Effectively, the stand of the PBA technically extended that restriction even to the national team under the SBP—the country’s basketball governing body to which the PBA is a party.

At some level, you might think the Aguilar ban was really pursued by Burger King as represented strongly by Alvarez to set a precedent and teach the boy a lesson. The PBA seemed to drive a point: “we own Japeth.” Or we could rephrase it as “we owned him first.”

At this level and argument, you might want to pierce the PBA’s corporate veil and file a legal action against the league and its officials.

In the NBA which the PBA model is closely patterned after, the Sherman Antitrust Act applies to the players and teams. The Antitrust law prohibits restriction of free trade in America—one of the blessings of democracy in that country.

Before we go deeper in the legal aspect, let us first appreciate the NBA model. The NBA is composed of three parties—the league, the teams and the players. The players are represented by a union (which also exists in the PBA) which is the sole bargaining representative of the players with the league and the teams. This is a unique set-up unlike that of the conventional unionism which defines the relationships and institutional mechanisms between labor and management or their representatives under our Labor laws.

The NBA model is that same model the PBA is patterned after although I tried hard to get a copy of the players’ CBA to no avail.

There were interesting cases in the NBA regarding their drafts. Under NBA rules, the draft procedures and contracts are contained in the CBA. This puts the players at an even plane with the league in the negotiating table. In a league like the NBA, the players are always at a disadvantage in bargaining situations with corporate giants. That is why they apply the antitrust law.

In the landmark case of Robertson vs. NBA (556 F 2d 682) which involved the great Oscar Robertson, the players union questioned the legality of the new bargaining agreement and the court ruled that the restrictions on drafts and free agency is violative of the antitrust agreement.

I like what the court said in this case, paraphrasing Leigh Steinberg: “A standard analogy repeated so regularly by lawyers and agents, is a system in which an attorney graduates from law school and is drafted by, and forced to work for a law firm in Biloxi, Mississippi, rather than for a firm in San Francisco for whom the lawyer wants to work.”

In American sports and in the NBA, several cases were decided in favor of a player who suffers “irreparable harm” caused by league rules.

Irreparable harm was the main argument of Spencer Haywood in the Haywood vs. NBA case. Haywood was barred from playing in the NBA for not spending four years of college eligiblity prior to turning professional. The court ruled in favor of Haywood, paving the way for several early entry cases like Kobe Bryant and Kevin Garnett.

Is there irreparable harm on Japeth’s case? Clearly, if you prevent tha boy from believing he needs to train more and he will get that from the national basketball program not the PBA, it is like taking him away from the playground. Remember, even a child has the right to play. Japeth is still a child whose learning curve has not bent to its peak.

Is there violation of his right to employment which necessarily includes the right to choose an employment?

In Japeth’s case, he chose to play for the country, not a franchise. By analogy, the State is the ultimate franchise. The franchise above all franchise in a civilized world.

The PBA better take a look at Section 8 (a) of the NBA’s CBA, which states that:

(a) The placement of a Rookie on the Armed Services List, or on any of the other lists described in the NBA By-Laws, or on any other list created by the NBA, shall not extend the period of exclusive negotiating rights which a Team has to any Draft Rookie beyond the period specified in this Agreement.

Playing for the national team is analogous to compulsory military service which the State may exercise upon its citizens. The NBA recognizes the same. So should the PBA.

Which leads us back to the essential question. Does the PBA own Japeth?

Pray tell me.