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.