On August 12, Los Angeles Sparks forward Dearice Hamby filed a lawsuit in a Nevada federal court against the Women’s National Basketball Association and the two-time defending champion Las Vegas Aces. Her suit alleges that the WNBA and the Aces unlawfully discriminated and retaliated against her when she was pregnant in 2022. Ms. Hamby’s allegations appear to have at least some merit based on the fact that the WNBA disciplined the Aces and head coach Becky Hammon after an investigation into Ms. Hamby’s allegations. However, Ms. Hamby’s damages are very uncertain.

Ms. Hamby’s allegations

Ms. 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.

Ms. 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, Ms. Hamby and the Aces signed a two-year contract extension through the 2024 season.

Ms. 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 Ms. Hamby’s daughter in the form of a “donation” to the school. Second, Ms. Hamby says the team permitted her to occupy team-provided housing to permit Ms. Hamby’s family to assist with childcare.

According to Ms. Hamby, a few weeks later (on July 18, 2022), she discovered for the first time that she was pregnant with her second child. Ms. Hamby confirmed the pregnancy at a doctor’s appointment on August 8, 2022. She alleges that at some unspecified date thereafter that she informed Natalie Williams, the Aces’ General Manager, of the pregnancy.

Ms. Hamby continued playing and helped the Aces to the 2022 title. On September 20, 2022, during the Aces’ victory parade, Ms. Hamby announced her pregnancy publicly.

After that announcement, Ms. Hamby claims that the team’s attitude toward her took a negative turn. In the fall of 2022, Ms. Hamby claims, the Aces failed to pay the promised tuition for her daughter and also requested that she vacate the team housing.

Then, she says, there was a call on January 15, 2023, between Ms. Hamby and Coach Hammon. In what is likely to be the most disputed allegation in her lawsuit, Ms. Hamby claims that Coach Hammon chastised her for not taking precautions against getting pregnant, questioned her commitment to the team and her work ethic, and accused Ms. Hamby of signing her contract extension knowing that she was pregnant. Ms. Hamby says that she denied Coach Hammon’s claims and insisted that she would be ready for the next season after giving birth in the offseason.

Six days later after this call, on January 21, 2023, the Aces traded Ms. Hamby to the Los Angeles Sparks.

The fallout

On the day that her trade was announced, Ms. Hamby made her allegations public in a social media post. Two days later, the Women’s National Basketball Players Association, the players’ union, asked the WNBA to investigate Ms. 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 Coach Hammon for 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 Coach Hammon.

Ms. Hamby alleges that the WNBA did not interview any other Aces players and otherwise failed to sufficiently address the wrongful conduct.

Ms. 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.

Ms. Hamby’s legal claims

Ms. Hamby’s lawsuit alleges that the Aces discriminated against her in violation of Title VII of the 1964 Civil Rights Act. That law prohibits employment discrimination based on 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, the PWFA did not take effect until June 2023, after the relevant dates in Ms. Hamby’s lawsuit and thus is not applicable to her case.

Ms. Hamby also alleges that the Aces retaliated against her by telling Aces players and staff not to communicate with her, claiming Ms. 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 Ms. Hamby’s daughter on the video screen at a game, something that they had previously done.

Ms. Hamby also claims that the WNBA retaliated against her by conducting an inadequate investigation and failing to extend a league marketing contract with her. Ms. Hamby’s claims against the WNBA rely on the legal claim that the WNBA is her joint employer. Although Ms. Hamby’s contract is only with the Aces, it is possible that the WNBA exercises enough control over the terms and conditions of her employment that the WNBA could be considered a joint employer. Indeed, players in Major League Soccer have been successful on such arguments against that league (see summary here at 34-35).

Implications of the collective bargaining agreement

Ms. Hamby’s lawsuit also raises the question regarding the way that pregnancy is addressed in the collective bargaining agreement between the WNBA and the Players Association. Article V, Section 14(j), prohibits a player from entering into a contract while knowing she is pregnant unless she has made prior written disclosure to the team. The Aces may believe that Ms. Hamby violated this provision, but that would not excuse the team’s alleged discrimination. Instead, the Aces would have had the right to seek damages, if any, against Ms. Hamby pursuant to the arbitration provisions in the agreement.

The CBA also provides that players are to receive 100 percent of their base salary while unable to play because of pregnancy. There does not appear to be any dispute that Ms. Hamby was paid all of the amounts owed under her contract.

Although it is not at issue, Ms. Hamby’s lawsuit publicly reveals the reasons that the Aces were docked a draft pick. The CBA includes a salary cap and related provisions that 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 Ms. Hamby that were not called for in her contract and thus would not have been counted against the Aces’ salary cap.  

At the same time, Ms. 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, it appears that Ms. Hamby’s lawsuit will be able to bypass the arbitration provision of the CBA. That provision requires arbitration only of disputes involving the “interpretation of, application of, or compliance with the provisions of” the CBA. Ms. Hamby’s action arises out of federal law and generally does not allege violations of her contract or the CBA.

Has Ms. Hamby been harmed?

Generally speaking, a party can pursue a lawsuit only if they have been harmed by the defendant’s conduct. It is not immediately apparent that Ms. 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 not lost 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, Ms. Hamby alleges that she had better marketing potential in Las Vegas contrasted with Los Angeles because the latter is a “far more saturated endorsement market.”

Nevertheless, Ms. 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 Ms. Hamby cannot prove specific damages, she might still recover emotional distress damages. A jury could also consider the Aces’ conduct sufficiently problematic to warrant punitive damages.

Additionally, Ms. Hamby’s case is helped by a recent U.S. 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. Although an employee must show “some harm” to state a claim, the Court said, the harm need not be significant. A change in the officer’s responsibilities, perks, and schedule were sufficient. Under this lessened standard, Ms. 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 leading teams in the league, led by Coach Hammon, who has previously attracted interest as a potential NBA head coach.

From Ms. Hamby’s perspective, her damages are highly questionable. Proving emotional distress damages could, in and of itself, be exhausting and stressful as it would open her up to invasive cross-examination, if not medical or psychological evaluations. Ms. Hamby is also having her best season yet, and litigation could become a distraction. The ball appears to be in the WNBA’s and Aces’ court.