By Christopher R. Deubert, Senior Writer
On August 12, 2024, Los Angeles Sparks forward Dearica Hamby filed a lawsuit in a Nevada federal court against the Women’s National Basketball Association (WNBA) and the two-time defending champion Las Vegas Aces alleging that they unlawfully discriminated and retaliated against her when she was pregnant in 2022. Hamby’s allegations appear to have at least some merit since the WNBA previously disciplined the Aces and head coach Becky Hammon after an investigation into Hamby’s allegations. At the same time, Hamby’s damages are very uncertain.
Hamby’s Allegations
Hamby is a leading veteran in the league. Since entering the WNBA in 2015, she has twice won Sixth Woman of the Year, been named an All-Star on three occasions and won a WNBA Championship. She also received a bronze medal in the recently completed Olympics as part of the women’s three-on-three team.
Hamby entered the 2022 season, her eighth with the Aces (formerly the San Antonio Stars), as a pending free agent. However, on June 28, 2022, about six weeks into the season, Hamby and the Aces signed a two-year contract extension through the 2024 season.
Hamby alleges that the Aces committed to providing two benefits not included in the contract. First, she claims the Aces agreed to pay the cost of private school tuition for Hamby’s daughter in the form of a “donation” to the school. Second, Hamby says the team permitted her to occupy team-provided housing to permit Hamby’s family to assist with childcare.
According to Hamby, a few weeks later on July 18, 2022, she discovered for the first time that she was pregnant with her second child. Hamby confirmed the pregnancy at an August 8, 2022 doctor’s appointment. She alleges that at some unspecified date thereafter that she informed Natalie Williams, the Aces’ General Manager, of the pregnancy.
Hamby continued playing and helped the Aces to the 2022 title. On September 20, 2022, during the Aces’ victory parade, Hamby publicly announced her pregnancy.
After that announcement, Hamby claims that the team’s attitude toward her took a negative turn. In the fall of 2022, Hamby claims that the Aces failed to pay the promised tuition for her daughter and also requested that she vacate the team housing.
Then, what is likely to be most at issue during the litigation, is a January 15, 2023 call between Hamby and Hammon. Hamby claims that Hammon chastised her for not taking precautions against getting pregnant, questioned her commitment to the team and her work ethic and accused Hamby of signing her contract extension knowing that she was pregnant. Hamby denied Hammon’s claims and insisted that she would be ready for the next season after giving birth in the offseason.
Six days later, on January 21, 2023, the Aces traded Hamby to the Los Angeles Sparks.
The Fallout
On the day her trade was announced, Hamby made her allegations public in a social media post. Two days later, the Women’s National Basketball Players Association (WNBPA), the players union, requested the WNBA to investigate Hamby’s claims, which it did.
On May 16, 2023, the WNBA announced the results – but not the details – of its investigation. The league rescinded the Aces’ 2025 first round Draft pick “for violating league rules regarding impermissible benefits” and suspended Hammon two games “for violating league and team Respect in the Workplace policies.” The WNBA said its investigation included “interviews with 33 people and a review of numerous texts, emails and other documents.”
The Aces at that time issued a statement expressing that they were “deeply disappointed by the outcome of the WNBA investigation” and supporting Hammon. In response to an email about this lawsuit, the Aces reiterated their prior statement.
Hamby alleges that the WNBA did not interview any other Aces players and otherwise failed to sufficiently address the wrongful conduct.
Hamby gave birth to a son on March 6, 2023 and timely reported to training camp for the Sparks on April 28, 2023. She then played all 40 games in the 2023 season, averaging 8.9 points per game.
Hamby’s Legal Claims
Hamby’s lawsuit alleges the Aces discriminated against her in violation of Title VII of the 1964 Civil Rights Act. That law prohibits discrimination in the workplace on the basis of race, religion, national origin, color, and sex, including pregnancy. In December 2022, Congress amended the law via the Pregnant Workers Fairness Act to require employers to make reasonable accommodations for pregnant employees or those with pregnancy-related conditions. However, that law did not take effect until June 2023, after the relevant dates in Hamby’s lawsuit and thus is not applicable to her case.
Hamby also alleges that the Aces retaliated against her by telling Aces players and staff not to communicate with her, claiming Hamby knew she was pregnant when she signed her contract extension, attempting to obtain her medical records, refusing to invite her to a White House celebration, and prohibiting the Aces’ video staff from showing Hamby’s daughter on the video screen at a game, something that they had previously done.
Hamby also claims that the WNBA retaliated against her by conducting an inadequate investigation and failing to extend a league marketing contract with her. Hamby’s claims against the WNBA rely on the legal claim that the WNBA is her joint employer. While Hamby’s contract is only with the Aces, it is possible that the WNBA exercises sufficient control over the terms and conditions of her employment such that it could be considered a joint employer. Indeed, players in Major League Soccer have made traction on such arguments against that league.
Implications of the Collective Bargaining Agreement
Further to the joint employer issue, Hamby’s lawsuit raises the question as to how the collective bargaining agreement (CBA) between the WNBA and WNBPA addresses pregnancy. Article V, Section 14(j) prohibits a player from entering into a contract while knowing she is pregnant without prior written disclosure to the team. While the Aces may believe that Hamby violated this provision, that would not excuse the team’s alleged discrimination. Instead, the Aces would have had the right to seek damages, if any, against Hamby pursuant to the arbitration provisions in the CBA.
The CBA also provides that players are to receive 100% of their base salary while unable to play because of pregnancy. There does not appear to be any dispute that Hamby was paid all of the amounts owed under her contract.
While not at issue in the instant litigation, Hamby’s lawsuit publicly reveals the reasons why the Aces were docked a Draft pick. The CBA includes a salary cap and related provisions which tightly control and track the amount of compensation paid by clubs to players. The CBA also contains a robust provision prohibiting any efforts to circumvent the salary cap. Yet the Aces did exactly that by allegedly providing benefits to Hamby which were not called for in her contract and thus would not have been counted against the Aces’ salary cap.
At the same time, Hamby’s admission that she received or was set to receive these off-the-books benefits could raise questions as to whether she (and perhaps other players) paid taxes on all of the income and benefits received from the Aces.
Finally, Hamby’s lawsuit looks like it should be able to avoid the arbitration provision of the CBA. That provision only requires arbitration of disputes involving the “interpretation of, application of, or compliance with the provisions of” the CBA. Hamby’s action arises out of federal law and generally does not allege violations of her contract or the CBA.
Has Hamby Been Harmed?
Generally speaking, a party can only pursue a lawsuit if they have been harmed by the defendant’s conduct. It is not immediately apparent that Hamby has in fact been harmed. She continues to play in the WNBA pursuant to the contract extension she signed in 2022 and has seemingly never not received the benefits of that contract.
She alleges that she was harmed by lost endorsement opportunities, because California imposes higher taxes than Nevada, and because she could not participate on the Aces’ 2023 championship team. More specifically, Hamby alleges that she had better marketing potential in Las Vegas compared to Los Angeles because the latter is a “far more saturated endorsement market.”
Nevertheless, Hamby does not identify any prospective endorsement deals that she lost as a result of being traded. Consequently, at this point, her damages appear speculative but could later be borne out by expert testimony.
Even if Hamby cannot prove specific damages, she could still recover emotional distress damages. A jury could also consider the Aces’ conduct sufficiently problematic so as to warrant punitive damages.
Additionally, Hamby’s case is helped by a recent Supreme Court decision. In Muldrow v. City of St. Louis, the Court held that a female officer sufficiently alleged sex discrimination under Title VII after she was transferred from one job to another, even though her pay and rank were unchanged. The Court held while an employee must show “some harm” to state a claim, the harm need not be significant. A change in the officer’s responsibilities, perks, and schedule were sufficient. Under this lessened standard, Hamby’s trade to a new team – which undoubtedly necessitated various life changes – seems likely to state a claim against the Aces even if her pay was not affected.
Ultimately both parties should be incentivized to settle the matter. The WNBA is experiencing a popularity and revenue boom. It certainly does not want to cloud that good news with allegations that it is insufficiently supporting its players in one of the most important aspects of their lives. Similarly, the Aces have become one of the league’s leading teams, led by Hammon who has previously garnered interest as a potential NBA head coach.
From Hamby’s perspective, her damages are highly questionable. Proving emotional distress damages would, in and of itself, be emotionally exhausting as it would open her up to invasive questioning. Hamby is also in the middle of her best season yet and litigation could become a distraction. The ball is in the WNBA and Aces’ court.
Deubert is Senior Counsel at Constangy, Brooks, Smith & Prophete LLP
