Los Angeles Sparks forward Dearica Hamby alleges that the WNBA and her former team, the Las Vegas Aces, are her joint employer. The WNBA disagrees.
Hamby recently filed a lawsuit against the Aces and the WNBA alleging they discriminated against her because of, among other things, her pregnancy. The WNBA denies it’s a joint employer, asserting that WNBA players are employed solely by their individual teams.
So, the WNBA is seeking dismissal of Hamby’s lawsuit, basically claiming it’s not responsible since it’s not a joint employer.
WNBA’s Argument
The WNBA relies heavily on a case called Lamar Dawson v. NCAA (2019) to defend its position. In this case, a former USC football player failed to prove that the NCAA and Pac-12 were his joint employers. The Ninth Circuit Court determined that while the NCAA and Pac-12 regulated aspects of his relationship with USC (eligibility rules, scheduling), they lacked direct control over his employment (e.g., hiring or firing). The WNBA likens its relationship with WNBA players to this framework, claiming it merely oversees the employment terms between players and their respective teams, regulates drafts, and enforces disciplinary measures, but does not directly employ players.
Hamby’s Argument
Hamby counters by highlighting key distinctions between her situation and Dawson’s:
1️⃣ Unionization and Collective Bargaining
Unlike college athletes, WNBA players are unionized, with the WNBA Players Association (WNBPA) negotiating a collective bargaining agreement (CBA) that establishes employment terms. This unionization, absent in the Dawson case, grants the WNBA significant influence over employment matters, including pay structures, free agency rules, benefits, and disciplinary actions.
2️⃣Changing Legal Landscape in College Sports
Hamby argues that the legal environment has shifted drastically since the Dawson decision.
To that end, in NCAA v. Alston (2021), the U.S. Supreme Court held that the NCAA is subject to ordinary antitrust scrutiny and violated antitrust law by limiting how colleges compensate college athletes for education-related expenses. That decision led to the the NCAA withdrawing its restraint on college athletes using their right of publicity by adopting the interim NIL policy.
Since 2021, college athletes have generated earnings in NIL deals while some NIL collectives operate as pay-for-play vehicles. The NCAA is also attempting to settle a series of antitrust cases by paying athletes for lost opportunities to earn compensation via NIL, video games and broadcasts and letting colleges directly pay athletes for media rights, ticket sales, sponsorships and NIL in a salary-cap like model. Importantly, college athletes have had recent success arguing they’re employees. Hamby isn’t off base in arguing that if Dawson were decided today, the outcome is likely very different.
3️⃣ Minor League Baseball Precedent
Hamby also references Aaron Senne v. MLB (2022), where minor league baseball players successfully argued that MLB functioned as a joint employer due to its control over drafts, salaries, and disciplinary actions. A magistrate judge determined that MLB had enough operational control to be held accountable under employment laws. Hamby draws parallels between MLB’s oversight in that case and the WNBA’s regulatory authority over its players. While the WNBA dismisses the applicability of Senne, citing differences in unionization and the nature of claims, Hamby insists the principles of joint employer responsibility remain relevant.
4️⃣ Broader Implications
Hamby emphasizes that the WNBA wields far greater control over its players than the NCAA or Pac-12 in the Dawson case, due to the league’s role in setting employment terms and its enforcement of league-wide standards. She argues that these factors establish the WNBA as a joint employer under the law.
The case is before Nevada U.S. District Judge Andrew P. Gordon, who will decide the WNBA’s Motion to Dismiss.
What say you? Joint employer or not?