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.

SAN FRANCISCO (AP) — The Mountain West Conference has concluded there was insufficient evidence to determine misconduct between women’s volleyball players from the Colorado State and San Jose State programs ahead of a match last month after a coach filed a Title IX complaint alleging the student-athletes were attempting to manipulate the contest.

San Jose State associate head coach Melissa Batie-Smoose brought her allegations to the conference on Oct. 29, the Mountain West said Saturday through the release of a letter dated Friday from Deputy Commissioner Bret Gilliland to the two university athletic directors sharing findings of an investigation.

“Upon receipt of this information, the Mountain West Conference office, in coordination with both member institutions, immediately initiated a thorough investigation into these serious assertions,” Gilliland wrote.

San Jose State on Saturday said Batie-Smoose is currently away from the team. She alleged that players from each team had “conspired to engage in manipulation of the competition” during the match on Oct. 3 in Fort Collins, Colorado, according to Gilliland’s letter sent by email, which was shared with The Associated Press by San Jose State.

“We appreciate the thorough and impartial investigation conducted by the Mountain West Conference,” the school said Saturday in a release. “The report is consistent with our internal conclusions.”

This is yet another challenge the Spartans have faced during a 14-5 season. They beat Colorado State 3-2 at home Saturday after the Rams’ sweep Oct. 3 marked San Jose State’s first loss following a 9-0 start.

So far this season, Southern Utah, Boise State, Wyoming, Utah State and Nevada have canceled games against the Spartans, with Nevada’s players stating they “refuse to participate in any match that advances injustice against female athletes,” without providing further details.

Given that Boise State, Wyoming, Utah State and Nevada are members of the Mountain West Conference, those contests are considered forfeits and count as wins for San Jose State.

In a separate lawsuit filed against the NCAA, plaintiffs cited unspecified reports asserting there was a transgender player on the San Jose State volleyball team, even naming her. While some media have reported those and other details, neither San Jose State nor the forfeiting teams have confirmed the school has a transgender women’s volleyball player. The AP is withholding the player’s name because she has not publicly commented on her gender identity and through school officials has declined an interview request.

This past week, a separate lawsuit was filed in Colorado by players from various schools against the conference and San Jose State officials calling for the Spartans player not to be allowed participation in the Mountain West volleyball championship that runs from Nov. 27-30 in Las Vegas.

San Jose State coach Todd Kress supported the conference in its determination that the Colorado State match had not been manipulated.

“The findings from the Mountain West’s investigation on this matter are consistent with our own internal conclusions and my review of the game film with Colorado State’s head coach,” Kress said in a statement provided to the AP. “As I’ve already stated, there are numerous inaccuracies being portrayed in the media regarding this matter, and I believe that these findings highlight that. From day one, my top priority as the head coach of the San Jose State women’s volleyball team has been to field a team which conducts itself with integrity, and we are looking forward to continuing with our season.”

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AP college sports: https://apnews.com/hub/college-sports