By: Kristina Major

One day after athletes celebrated Title IX’s 50th anniversary, the Supreme Court overturned Roe v. Wade with its ruling in Dobbs v. Jackson Women’s Health Organization.[1] The Court held “the Constitution does not confer a right to abortion,” placing the right to regulate abortion in the states’ control.[2] The sports world quickly shared its thoughts and expressed concerns about the decision’s impact on athletes and the landscape of professional sports.[3] People questioned how Dobbs will affect free agency and trades in the National Women’s Soccer League (“NWSL”) and Women’s National Basketball Association (“WNBA”), particularly whether players can reject trades that would place them in states that restrict access to reproductive healthcare.[4] Some players stated they will not play in states banning abortion and will not send their daughters to play at those states’ colleges.[5]

NWSL: No-Trade Clauses

In January, the NWSL and the NWSL Players’ Association agreed on the league’s first collective bargaining agreement (“CBA”).[6] One CBA provision grants players more autonomy when deciding where to play by allowing negotiation of no-trade clauses in players’ standard contracts.[7] Unlike in the NBA, where only one player currently has an explicit no-trade clause, the NWSL CBA does not require players to have spent a minimum number of years with the league or team to be eligible to negotiate no-trade clauses.[8] This resulted from the players’ push against being traded without much choice or warning.[9] Jessica Berman, the NWSL commissioner, did not clarify if the league would block trades if players do not wish to work in states with abortion bans.[10] However, the NWSL stressed its commitment to acting as a safety net for players, providing them with support and access to safe medical care wherever they work and live.[11]

This year, the NWSL confirmed its plans to expand by adding two teams in 2024.[12] Berman asserted that the league will consider abortion rights while deciding where to place these new teams.[13] Additionally, the league will review its existing markets, assessing their positions on abortion.[14]

The future of choice for NWSL players appears hopeful, but it remains to be seen how these no-trade clauses, if players pursue them, will play out.

WNBA: Player Support Plan

The NBA and WNBA commissioners, Adam Silver and Cathy Engelbert, released a statement on behalf of the leagues, supporting their players and committing to providing them reproductive healthcare access:

The NBA and WNBA believe that women should be able to make their own decisions concerning their health and future, and we believe that freedom must be protected. We will continue to advocate for gender and health equity, including ensuring our employees have access to reproductive health care, regardless of their location.[15]

The WNBA CBA has complex trade provisions.[16] Teams may trade players without their agreement, but core-designated players may reject any trades after they have been cored.[17] WNBA teams can designate unrestricted free agents as “core” when the player is “integral to the team’s success, play style, identity, and brand,” thereby revoking the player’s “unrestricted” status.[18] Players can only be “cored” three times during their careers, and during each free agency period, teams can only “core” one player.[19] While core-designated players can reject trades that would place them in states with abortion bans, other players will likely not receive this same choice. Instead, these players must rely on the WNBA’s statement and the commissioner’s promises. Engelbert said “the league will ‘absolutely’ reimburse travel expenses for any league employee and that players have abortions covered through their insurance.”[20]

Basketball fans are watching to see how players’ pro-choice sentiments affect the WNBA. Will they indeed refuse to play in teams located in states banning abortion? Will college prospects forgo opportunities on elite teams in these states? It will be interesting to see how teams and the league react. Women’s basketball may be in for a big post-Dobbs upheaval.

[1] Dobbs v. Jackson Women’s Health Org., 142 S.Ct. 2228 (2022), https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf.; Sports World Reacts to Supreme Court’s Decision to Overturn Roe v. Wade, Sports Illustrated (June 24, 2022), https://www.si.com/more-sports/2022/06/24/sports-world-reacts-supreme-court-decision-overturn-roe-v-wade-title-ix-anniversary [hereinafter Sports World Reacts].

[2] Dobbs, 142 S.Ct. at 5-6, 69. Still yet to unfold is the question of whether states can penalize people who travel for abortions. In July, Senator Cortez Masto’s bill to protect women who travel for legal out-of-state abortion care was blocked by Senate Republicans. Sahil Kapur, Frank Thorp V & Julie Tsirkin, Republicans Block Bill to Protect Travel to Other States for Abortions, NBC NEWS (July 14, 2022, 3:00 PM), https://www.nbcnews.com/politics/congress/republicans-block-bill-protecting-women-travel-states-abortion-rcna38301. While no bill explicitly protects this practice, Senate Republicans appeared divided and stated that the right to travel, including to access legal abortions, “stems from the Constitution and has been recognized by the Supreme Court.” Id.

[3] Sports World Reacts, supra note 1.

[4] Emma Hruby, USWNT’s Crystal Dunn: Playing in State with Abortion Ban ‘Out of the Question’, Just Women’s Sports (Sept. 21, 2022), https://justwomenssports.com/wnba-nwsl-ncaa-crystal-dunn-uswnt-abortion-bans/ (WNBA legend Sue Bird stated, “I had (someone) ask me, ‘Will this impact free agency?’”).

[5] Id.

[6] Michael Lewis, YOU CAN READ IT: The Full Text of NWSLPA’s CBA with NWSL, Front Row Soccer (May 2, 2022), https://www.frontrowsoccer.com/2022/05/02/you-can-read-it-the-full-text-of-nwslpas-cba-with-nwsl/.

[7] Nat’l Women’s Soccer League Players Ass’n & Nat’l Women’s Soccer League, Collective Bargaining Agreement 25 (2022), https://www.nwslplayers.com/_files/ugd/84dade_492ec21e25904fe5b9703eec4165165a.pdf.

[8] Id. Luke Adams, NBA Players Who Can Veto Trades in 2022/23, Hoops Rumors (July 28, 2022, 10:58 AM), https://www.hoopsrumors.com/2022/07/nba-players-who-can-veto-trades-in-2022-23.html#:~:text=To%20be%20eligible%20to%20negotiate,years)%20with%20his%20current%20team.

[9] Alex Azzi, NWSL Trades Expose Need for CBA, Free Agency, On Her Turf, NBC Sports (Dec. 3, 2021, 2:17 PM), https://onherturf.nbcsports.com/2021/12/03/nwsl-trades-highlight-cba-free-agency/.

[10] Hruby, supra note 4.

[11] Id.

[12] Jeff Kassouf, As Expansion Race Heats Up, NWSL Faces Tough Questions About its Future with Utah Expected to Join in 2024, ESPN (June 30, 2022), https://www.espn.com/soccer/united-states-nwsl/story/4692534/as-expansion-race-heats-upnwsl-faces-tough-questions-about-its-future-with-utah-expected-to-join-in-2024.

[13] Emma Hruby, NWSL Commissioner: Abortion Rights Will Figure into Expansion Decisions, Just Women’s Sports (July 15, 2022), https://justwomenssports.com/nwsl-soccer-jessica-berman-abortion-rights-expansion/.

[14] Id.

[15] Jelani Scott, NBA, WNBA Commissioners Release Joint Statement on Roe v. Wade, Sports Illustrated (June 24, 2022), https://www.si.com/nba/2022/06/24/nba-wnba-commissioners-release-joint-statement-on-roe-v-wade.

[16] Jacob Mox, WNBA CBA Explained: Trades, Her Hoop Stats (Sept. 7, 2020), https://herhoopstats.substack.com/p/wnba-cba-explained-trades.

[17] Dani Bar-Lavi, What is the WNBA Core Rule?, Nets Republic, https://netsrepublic.com/what-is-wnba-core-rule/#:~:text=A%20core%2Ddesignated%20player%20has,between%20her%20and%20the%20team (last visited Sept. 28).

[18] Id.

[19] Id.

[20] Hruby, supra note 4.