Los Angeles Sparks forward Dearica Hamby insists the WNBA is misapplying case precedent concerning the prospective employment of college athletes and minor league baseball players as a way to avoid scrutiny in her employment retaliation lawsuit, a new court filing asserts.

Hamby’s attorneys filed a memorandum responding to a recent WNBA court filing where the league insisted that Hamby’s employment lawsuit fails in part because—the league maintains—the WNBA is not her employer. While Hamby contends the WNBA and the Las Vegas Aces were her joint employer during a time when she says she experienced unlawful discrimination on account of being pregnant, the WNBA argues it is not a joint employer of players who are employed by, and sign employment contracts with, privately owned WNBA franchises. 

The WNBA drew support from Lamar Dawson v. NCAA, a 2019 case where a USC football player failed to establish the NCAA and Pac-12 were his joint employers. The U.S. Court of Appeals for the Ninth Circuit reasoned that while the NCAA and Pac-12 regulated the relationship between Dawson and USC–including by setting eligibility rules and football scheduling–they didn’t hire or fire Dawson and didn’t place him at USC. The WNBA described its relationship with WNBA teams in an analogous light. The WNBA regulates the employment relationship between teams and players, including by enforcing disciplinary rules and overseeing a player draft process that gives teams the chance to draft (and employ) a player. But the WNBA insists it doesn’t directly control players. 

Not so fast, Hamby argues in a brief authored by Artur Davis, Dana Sniegocki and Erin Norgaard of HKM Employment Attorneys.

Hamby maintains a key distinguishing feature between Dawson and her is that while college athletes are not (save for Dartmouth College men’s basketball players) unionized employees, WNBA players are unionized. The WNBPA negotiates a collective bargaining agreement with the WNBA that specifies terms and conditions of employment and outlines league authority. There is no such equivalent in college sports since unionization requires, among other things, employment recognition. 

As Hamby tells it, the WNBA player-WNBA arrangement empowers the league with considerably more influence over WNBA players than the NCAA or Pac-12 enjoyed over USC football players in 2019. More specifically, Hamby cites “the structure of compensation and benefits, the rules of the free agent market, and the power to discipline and police misconduct” as distinguishing the WNBA’s role. 

Hamby also points out that while Dawson was decided only five years ago, that was a different era in college sports. The world of college athlete compensation has changed dramatically since then. The days of amateurism, as that term was understood in 2019, are over and never coming back. 

To that point, 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 same year, the NCAA withdrew 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 the House, Carter and Hubbard 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. Most on point, college athletes have had recent success arguing they’re employees. It’s logical to assume that if Dawson were litigated in 2024, its trajectory would be different in ways that better align with Hamby’s arguments.

Further, Hamby accuses the WNBA of giving short shrift to another joint employment case in sports: Aaron Senne, et al. v. MLB. That 2022 case, which concluded via a settlement, concerned minor league baseball players suing MLB, which they argued was their joint employer and on the hook to pay them no less than minimum wage and overtime pay as required by the Fair Labor Standards Act. A U.S. magistrate judge found that MLB functioned as a joint employer given its control over the entry level draft, the ability to discipline players and set first-year salaries. The WNBA reasoned Senne is inapplicable since it didn’t involve the types of claims pleaded by Hamby and didn’t concern a unionized employee like Hamby.

But Hamby argues the WNBA, which she criticizes for “cosign[ing] Senne to a footnote” in its brief, is “silent” as to whether the elements of joint control discussed in Senne apply to her case. She said it “speaks volumes” that the WNBA, at least as Hamby tells it, doesn’t adequately address analogous conduct by the WNBA in economic and disciplinary powers.

U.S. District Judge Andrew P. Gordon, who presides in Nevada, will weigh the competing arguments in deciding whether to dismiss Hamby’s lawsuit.

China’s leader Xi Jinping met for the last time with President Biden on Saturday, but was already looking ahead to President-elect Donald Trump and his “America first” policies, saying Beijing “is ready to work with a new U.S. administration.”

During their talks on the sidelines of the annual Asia-Pacific Economic Cooperation summit in Peru, Xi cautioned that a stable China-U.S. relationship was critical not only to the two nations but to the “future and destiny of humanity.”

TRUMP LOOMS LARGE AS BIDEN SET TO MEET CHINA’S XI DURING LATIN AMERICA SUMMITS

“Make the wise choice,” he cautioned. “Keep exploring the right way for two major countries to get along well with each other.”

Without mentioning Trump’s name, Xi appeared to signal his concern that the incoming president’s protectionist rhetoric on the campaign trail could send the U.S.-China relationship into another valley.

“China is ready to work with a new U.S. administration to maintain communication, expand cooperation and manage differences so as to strive for a steady transition of the China-U.S. relationship for the benefit of the two peoples,” Xi said through an interpreter.

Xi, who is firmly entrenched atop China’s political hierarchy, spoke forcefully in his brief remarks before reporters. Biden, who is winding down more than 50 years of public service, talked in broader brushstrokes about where the relationship between the two countries has gone.

He reflected not just on the past four years but on the decades the two have known each other.

“We haven’t always agreed, but our conversations have always been candid and always been frank. We’ve never kidded one another,” Biden said. “These conversations prevent miscalculations, and they ensure the competition between our two countries will not veer into conflict.”

Biden urged Xi to dissuade North Korea from further deepening its support for Russia’s war on Ukraine. The leaders, with top aides surrounding them, gathered around a long rectangle of tables in an expansive conference room at a Lima hotel.

They had much to discuss, including China’s indirect support for Russia, human rights issues, technology and Taiwan, the self-ruled democracy that Beijing claims as its own. On artificial intelligence, the two agreed on the need to maintain human control over the decision to use nuclear weapons and more broadly improve safety and international cooperation of the rapidly expanding technology.

President Joe Biden meets with Chinese President Xi Jinping during a bilateral meeting, Saturday, in Lima, Peru.  (AP Photo/Manuel Balce Ceneta)

There’s much uncertainty about what lies ahead in the U.S.-China relationship under Trump, who campaigned promising to levy 60% tariffs on Chinese imports.

Already, many American companies, including Nike and eyewear retailer Warby Parker, have been diversifying their sourcing away from China. Shoe brand Steve Madden says it plans to cut imports from China by as much as 45% next year.

In a congratulatory message to Trump after his victory over Vice President Kamala Harris, Xi called for the U.S. and China to manage their differences and get along in a new era. In front of cameras Saturday, Xi spoke to Biden — but it was unmistakable that his message was directed at Trump.

“In a major flourishing sci-tech revolution, neither decoupling nor supply chain disruption is a solution,” Xi said. “Only mutual, beneficial cooperation can lead to common development. ‘Small yard, high fence’ is not what a major country should pursue.”

Biden administration officials have said they would advise the Trump team that managing the intense competition with Beijing will likely be the most significant foreign policy challenge they will face.

On Saturday, White House national security adviser Jake Sullivan said Biden had reinforced to Xi “that these next two months are a time of transition” and that the president would like to pass off the U.S.-China relationship “in stable terms” to the new administration.

Biden has viewed his relationship with Xi as among the most consequential on the international stage and put much effort into cultivating it. The two first got to know each other on travels across the U.S. and China when both were vice presidents, interactions that both have said left a lasting impression. They last met a year ago on the APEC sidelines in Northern California.

Chinese President Xi Jinping meets with President Joe Biden during a bilateral meeting, Saturday, in Lima, Peru.  (AP Photo/Manuel Balce Ceneta)

“For over a decade, you and I have spent many hours together, both here and in China and in between,” Biden said. “We’ve spent a long time dealing with these issues.”

But the last four years have presented a steady stream of difficult moments.

The FBI this week offered new details of a federal investigation into Chinese government efforts to hack into U.S. telecommunications networks. The initial findings have revealed a “broad and significant” cyberespionage campaign aimed at stealing information from Americans who work in government and politics.

Sullivan said Biden raised the matter with Xi during their talks and that the U.S. will have more to say about the investigation in the weeks ahead.

U.S. intelligence officials also have assessed China has surged sales to Russia of machine tools, microelectronics and other technology that Moscow is using to produce missiles, tanks, aircraft and other weaponry for use in its war against Ukraine.

And tensions flared last year after Biden ordered the shooting down of a Chinese spy balloon that traversed the United States.

Biden wants Xi to step up Chinese engagement to prevent an already dangerous moment with North Korea from further escalating.

Biden, along with South Korean President Yoon Seok Yul and Japanese Prime Minister Shigeru Ishiba, on Friday condemned North Korean leader Kim Jong Un’s decision to send thousands of troops to help Moscow repel Ukrainian forces who have seized territory in Russia’s Kursk border region.

White House officials have expressed frustration with Beijing, which accounts for the vast majority of North Korea’s trade, for not doing more to rein in Pyongyang.

The North Koreans also have provided Russia with artillery and other munitions, according to U.S. and South Korean intelligence officials. And the U.S., Japan and South Korea have expressed alarm over Pyongyang’s stepped-up cadence of ballistic missile tests.

Kim ordered testing exercises in the lead-up to this month’s U.S. election and is claiming progress on efforts to build capability to strike the U.S. mainland.

Xi and Biden started their day at the leaders’ retreat at the APEC summit, taking part in a photo where they all wore scarves made from vicuña wool, a symbolic animal for Peru. It’s common practice that leaders at these gatherings are given a gift — usually traditional clothing of the host country — that they don for the photo.

Chinese President Xi Jinping has held his final meeting with his outgoing counterpart in the United States, Democrat Joe Biden.

But Xi’s words on Saturday seemed directed not simply at Biden but at his Republican successor, returning President Donald Trump.

In his encounter with Biden on the sidelines of the Asia-Pacific Economic Cooperation summit in Lima, Peru, Xi emphasised the importance of the US and China maintaining “mutual respect”.

While Xi did not mention Trump by name, he gave a nod to the incoming US president’s victory in the November 5 election.

“The United States has recently concluded its elections. China’s goal of a stable, healthy and sustainable China-US relationship remains unchanged,” Xi said.

But, he warned, “If we take each other as rival or adversary, pursue vicious competition and seek to hurt each other, we would roil the relationship or even set it back.”

Trump, who served as president previously from 2017 to 2021, oversaw a period of heightened tensions with China, including a trade war sparked by his imposition of tariffs on Chinese goods.

China responded with its own tariffs and trade restrictions, though experts warned that the escalation on both sides damaged the two countries’ economies.

On Saturday, Xi appeared to extend a hand of friendship to Trump, encouraging their countries to work together for mutual gain.

“China is ready to work with the new US administration to maintain communication, expand cooperation and manage differences so as to strive for a steady transition of the China-US relationship for the benefit of the two peoples,” he said.

A major campaign theme

Trump has reprised his “America First” philosophy as he prepares to enter the White House for a second time.

China was a repeated feature of the Republican’s campaign speeches, as he led a successful bid for re-election in the 2024 US presidential race.

As part of a pitch to American voters, Trump pledged to protect US manufacturing from Chinese competition.

“I charged China hundreds of billions of dollars in taxes and tariffs. They paid us,” Trump boasted at his final campaign rally in Grand Rapids, Michigan, on November 4.

“And you know what? We’re going to get along great with China. We’re going to get along good. I want to get along with them. President Xi was great until COVID came. Then, I wasn’t so thrilled with him.”

During the height of the COVID-19 pandemic, Trump blamed the Chinese leader for letting the virus spread by “allowing flights to leave China and infect the world”. He also repeatedly called COVID-19 the “China virus”.

Despite their rocky history, Xi called to congratulate Trump on his second term the day after the election, on November 6.

Xi has led the Chinese government since 2013, and under his authority, the two-term limit was abolished for presidents.

Trump has expressed admiration for Xi’s authority over the Chinese government, which some critics compare with authoritarian rule.

“I got along very well with President Xi. He’s a great guy. He wrote me a beautiful note the other day when he heard about what happened,” Trump said after the assassination attempt on him in July. “It’s a good thing to get along, not a bad thing.”

Goodbye to Biden

Xi and Biden have had their own rocky history, with incidents like the 2023 downing of an alleged Chinese “spy” balloon fuelling spikes in tensions.

China maintained that the balloon was a civilian aircraft collecting weather data, and it denounced the US’s decision to shoot it down with a missile after it passed over sensitive US military installations.

Biden, who turns 82 on Wednesday, exchanged some banter with his Chinese counterpart as they spoke to reporters in their final meeting.

“Can you put on your earpiece? We have simultaneous interpreting,” Xi asked Biden at their afternoon news conference.

Biden responded with a joke. “I’ve learned to speak Chinese,” he said with a chuckle.

The US president continued by acknowledging that relations have not always been smooth between their two countries.

“We haven’t always agreed, but our conversations have always been candid and always been frank. We have never kidded one another. We’ve been level with one another. And I think that’s vital,” Biden said, pointing across the table as he read from prepared remarks.

“These conversations prevent miscalculations, and they ensure the competition between our two countries will not veer into conflict.”

He used his final encounter as president with Xi to push several US priorities. In a readout released by the White House, Biden reportedly pushed for greater law enforcement cooperation to stem the flow of synthetic drugs to the US.

He and Xi also spoke about the emerging challenges posed by artificial intelligence (AI), including with regards to its use with nuclear weapons.

“The two leaders affirmed the need to maintain human control over the decision to use nuclear weapons,” the readout explained.

“The two leaders also stressed the need to consider carefully the potential risks and develop AI technology in the military field in a prudent and responsible manner.”

Biden also confirmed that the US’s “one China policy” remained “unchanged”: The US acknowledges the government in Beijing as the sole government of China. It does not have formal diplomatic relations with the self-governing island of Taiwan, which China considers its territory.

China has called acknowledging Taiwan’s sovereignty a “red line” in its relationship with the US.

While Biden has previously pledged to protect Taiwan should it ever face attack, on Saturday, he struck a note of peace, calling for a continuation of the status quo.

“He reiterated that the United States opposes any unilateral changes to the status quo from either side, that we expect cross-Strait differences to be resolved by peaceful means, and that the world has an interest in peace and stability in the Taiwan Strait,” the White House readout said.

But, it added, Biden also “called for an end to destabilizing PRC [People’s Republic of China] military activity around Taiwan”.