By Christopher R. Deubert, Senior Writer
It was recently announced that WNBA stars Breanna Stewart and Napheesa Collier are planning to launch a new professional women’s 3-on-3 basketball league, to be called Unrivaled, in January 2025. The fact that WNBA players will participate in the league highlights an important difference between the contracts of WNBA players and NBA players.
Basketball Players’ “Unique Skills”
To understand the context behind the creation of this new league, it is important to understand the nature of professional basketball players’ employment.
WNBA players, via their union, the Women’s National Basketball Players Association (WNBPA), negotiate a collective bargaining agreement with the WNBA and WNBA clubs setting forth the core terms and conditions of their employment. The agreement governs salaries, free agency rights, benefits, the WNBA Draft, scheduling, discipline, and a variety of other matters. The most recent agreement was executed in 2020 and runs through the 2027 season.
The National Basketball Players Association (NBPA), on behalf of NBA players, negotiates a very similar agreement with the NBA and NBA clubs.
A principal component of both agreements is the Standard Player Contract (or Uniform Player Contract in the case of the NBA), the template agreement that all players and clubs must use as the basis for any contract. Players and clubs are generally limited to negotiating the terms of a player’s compensation while the numerous legal provisions in the contract cannot be changed.
An important component of the Standard Player Contract is the player’s agreement that he or she “has extraordinary and unique skill and ability as a basketball player, that the services to be rendered by [him/her] hereunder cannot be replaced or the loss thereof adequately compensated for in money damages.”
This provision recognizes the unique abilities of professional basketball players and the difficulty in replacing them if they choose to breach their contract. Indeed, in 1990, an arbitrator ordered NBA player Brian Shaw to abide by his contract with the Boston Celtics rather than play in Italy. In a decision written by future Supreme Court Justice Stephen Breyer, a federal appeals court upheld that ruling based in part on the “unique skill” provision.
Basketball Players’ “Prohibited Activities”
In further recognition of basketball players’ unique skills, both the WNBA and NBA player contracts prohibit players from engaging in activities which “may impair or destroy [his/her] ability and skill as a basketball player.” The NBA, for example, prohibits players from engaging in the following non-exhaustive list of activities:
(i) sky-diving, hang gliding, snow skiing, rock or mountain climbing (as distinguished from hiking), water or jet skiing, whitewater rafting, rappelling, bungee jumping, trampoline jumping, and mountain biking; (ii) any fighting, boxing, or wrestling; (iii) using fireworks or participating in any activity involving firearms or other weapons; (iv) riding on electric scooters or hoverboards; (v) driving or riding on a motorcycle or moped or four-wheeling/off-roading of any kind; (vi) riding in or on any motorized vehicle in any kind of race or racing contest; (vii) operating an aircraft of any kind; (viii) engaging in any other activity excluded or prohibited by or under any insurance policy which the Team procures against the injury, illness, or disability to or of the Player, or death of the Player, for which the Player has received written notice from the Team prior to the execution of this Contract; or (ix) participating in any game or exhibition of basketball, football, baseball, hockey, lacrosse, or other team sport or competition.
The WNBA contract contains similar prohibitions.
However, the WNBA collective bargaining agreement contains a specific exemption that makes the planned new league possible. Article XVIII of the agreement specifically states that players do not need team permission “in order to participate in the sport of basketball” in the offseason (roughly October through April). By comparison, the NBA prohibits players from playing basketball without permission from their team.
WNBA players have taken advantage of this provision for years, playing overseas to supplement their WNBA salaries, which are limited to $208,219 for the 2024 season for most players (though rookies, like Caitlin Clark, make much less). WNBA star Brittany Griner was famously detained in February 2022 by Russian police after playing for a Russian club during the WNBA offseason.
A Necessary Exemption
The new 3-on-3 league would not be possible without this exemption. Also, some might argue that the WNBA would not be as popular as it is (or is becoming) without the exemption. If the WNBA made players choose between playing in the WNBA or playing overseas for higher salaries, certainly at least some of the game’s best players would forego playing in the WNBA.
The NBA does not have this problem. It is the highest paying and most skilled men’s professional basketball league in the world. Consequently, it has the leverage to tell its players that they cannot participate in other basketball leagues. Indeed, NBA players cannot participate in the Big3, an elite 3-on-3 league, prompting that league’s organizers (including Ice Cube) to allege that the NBA is violating antitrust laws.
If Clark and others continue to propel WNBA popularity into new territory, the league may one day desire to reduce the risks to its on-court and off-court product by barring its players from playing in other leagues. But for now, it seems we will get another avenue through which to see women’s basketball players shine.
Deubert is Senior Counsel at Constangy, Brooks, Smith & Prophete LLP.
