How Coronavirus Could Affect the WNBA’s Season, Players & Finances

As the shutdown of public gatherings and spaces hurls ever closer to the scheduled start of the 2020 WNBA season, the league isn’t immune to the ramifications.

The alteration of the 2020 WNBA Draft to essentially become a remote event may be just the beginning of necessary modifications.

At this point, the WNBA has announced a delay to start the 2020 season but hasn’t provided any details on a hypothetical start date. This was the right move as the health and safety of league and team personnel are paramount, as it is in regard to gameday personnel, media and spectators as well.

WNBA players are suddenly facing the same situation as many employees around the U.S. Questions in their minds now might include:

  • Can my team postpone paying me since the season won’t start on time?
  • Can my team cut my salary for this year if games are canceled or never made up?
  • Could my team cut my pay if I have to go into quarantine because I was in contact with someone who tested positive for COVID-19, because I exhibit symptoms with or without a positive test, because of a government mandate, to care for a family member who has contracted the virus, or simply because I elect to do so while games are being played?
  • Are there any federal or state laws that govern these situations?

For the most part, federal and state labor laws respect the terms of agreements that businesses and labor unions negotiate between themselves. There are exceptions, like the federal Families First Coronavirus Response Act (FFCRA).

That act is essentially the Family Medical Leave Act on steroids. It requires covered employers to provide eligible employees up to $511 daily and $5,110 total of paid sick leave under certain conditions. As WNBA teams employ more than 50 but fewer than 500 people, they will likely face this requirement in regards to players who are unable to work because of coronavirus concerns for themselves or an individual in their households.

WNBA players may also be entitled to state unemployment protections if they are laid-off or their employers temporarily cease operations.

However, there are no laws that expressly mandate WNBA teams pay their players amid a suspended season or while they are in quarantine due to COVID-19 concerns beyond the two-week reach of the FFCRA. The WNBA and its players will decide that themselves.

Thus, if WNBA players are uncertain of their eligibility for unemployment protection, they should file claims and let their respective state administrations decide on the merits of those claims.

May 9, 2019; New York City, NY, USA; A general view of the game ball during the preseason WNBA game between the New York Liberty and the China National Team at Barclays Center. Mandatory Credit: Vincent Carchietta-USA TODAY Sports

League operations, especially as they relate to labor conditions, are governed by the current collective bargaining agreement. Unlike the NBA’s CBA, the WNBA CBA includes no “Termination by the NBA/Force Majeure” clause. There are parts of the WNBA CBA that may apply, however.

A crucial thing to remember is that WNBA teams, not the league, are responsible for player compensation.

One of the primary concerns for WNBA franchises will be their compliance with the salary cap if a player is quarantined because she has tested positive for COVID-19, if symptoms of the virus make a player too sick to play or if she has to take care of someone in her household. The CBA does have some provisions that teams may take advantage of under those circumstances.

Article VII Sec. 4 gives teams some financial and roster flexibility in case one of their players tests positive for COVID-19. The team can apply for a “hardship exemption” if a player has to go into quarantine or her symptoms keep her from playing a minimum of two consecutive regular-season games and the situation will keep her out of competition for at least three additional weeks.

While there is no guarantee that the league will grant a hardship exemption, there is a real benefit to a team for doing so in terms of the salary cap. The team can sign another player to replace the stricken player without the replacement player’s compensation affecting the team’s salary cap compliance.

The determination of whether a player’s condition is enough to warrant such an exemption would be made a physician designated by the league and compensated by the team in that situation.

The league has also made a provision for the even-more extreme situation that multiple players on the same team find themselves in quarantine or too ill to work.

If a team finds itself with fewer than 10 available healthy players, it can apply for an “emergency hardship exemption.” The primary difference between this and a regular hardship exemption is that there is no requirement for players to miss at least two consecutive regular-season games and three weeks of the season. Additionally, the league office could make a decision on this type of exemption with or without an assessment by a team physician happening first.

Whether a team can refuse to pay a player her base salary if she enters quarantine or is unable to play because of symptoms resulting from the contraction of COVID-19 may also be governed by Sections 5(c) and 5 (d) of Article V.

The operative phrase in these sections is “when the team agrees,” meaning this protection is not compulsory for teams to include in their player contracts. If a team decides to void a player’s deal with this protection in her contract, the team is still required to pay her base salary.

There might be an exemption to this requirement, however. The sections include an exemption for an “intentional self-inflicted injury.” If a player puts herself in a position where she’s highly susceptible to contracting the virus, it’s possible that a team could argue her contraction of the virus was self-inflicted.

LOS ANGELES, CA – SEPTEMBER 05: WNBA basketball during the Seattle Storm vs Los Angeles Sparks game on September 05, 2019, at Staples Center in Los Angeles, CA. (Photo by Jevone Moore/Icon Sportswire)

Attorney Kelsey Trainor, who has consulted with members of the media on the WNBA CBA many times, believes that the intentional aspect of the self-inflicted injury clause would be incredibly hard to meet, however. She feels that such an issue would not even be raised unless a WNBA team could conclusively show that a player was actively and outwardly defiant of any stay-at-home orders.

Article XXXIII Section 5 gives the league the authority to reduce the number of games in a season. Section 7 (a) of the same article also mandates that seasons must end before October 31, save for “reasonable adjustments” the WNBA can make in regard to FIBA competitions that take place adjacent to or during the season. Section 7 (b) is where the WBPA gets involved.

That section requires the league to give the Players Association a draft of the coming regular-season schedule on the same day it makes the same available to its member clubs and prior to publicly announcing the schedule. The PA then has the same time period for providing commentary on that draft schedule.

The section makes it clear that the league is not under any obligation to take any actions on those comments, however.

Although there is no language in the CBA that explicitly requires the league to follow the same protocol when it wants to cancel or postpone games, it’s likely that the league will do so voluntarily. This would be the opportunity for the PA to inquire with the league about payment breakdown and schedule, along with perhaps starting a dialogue on that front.

If WNBA teams do postpone or withhold payments from players because of the suspension of games, the PA and/or individual players are free to file a grievance against those teams with the league. Article XXII Section 3 (b) would likely govern the procedures.

Such a grievance would trigger a meeting between the player(s) involved and representatives of the team(s) against whom the grievance(s) was/were filed. If that fails to resolve the issue to the satisfaction of both parties, either party may request arbitration.

Section 4 (b) of the same article mandates that both parties agree to the appointment of an arbitrator who will hold that role for the duration of the current CBA although, starting on November 1 of 2021, either party may request the replacement of that arbitrator on an annual basis. Section 4 (c) iii gives either party the option to expedite the scheduling of the arbitration hearing as well.

UNCASVILLE, CT – SEPTEMBER 17: Referee Isaac Barnett gestures to put the ball in play during game 1 of the WNBA semifinal between Los Angeles Sparks and Connecticut Sun on September 17, 2019, at Mohegan Sun Arena in Uncasville, CT. (Photo by M. Anthony Nesmith/Icon Sportswire)

The CBA goes on to dictate that the arbitrator must rule within 30 days of the hearing and that her/his decision is not only binding upon all parties but final as well.

The CBA bars the league and teams from “interference with the employment of WNBA players.”

It’s possible that a player could cite this section in a grievance hearing, but its application would be at the discretion of the arbitrator. Trainor doesn’t believe that the resolution of disputes over player wages was the intent of that language.

Trainor also points out a section that she believes could most apply to this unique scenario. Article XLI Sec. 5 (a) and (b) state that the league and the PA agree to “use their respective best efforts” and take “all reasonable steps” to “have WNBA Teams and players comply with the terms and provisions of this Agreement.”

“This section is essentially an ‘out’ for each side in this scenario that impacts every other section,” Trainor explained. “‘Best efforts’ and ‘reasonable steps’ in a pandemic are unchartered territories and could trigger a fall of other sections.”

Simply put, the WNBA and the WBPA didn’t imagine this scenario while they were drafting or negotiating the current CBA, and there’s little language that explicitly advises either party on what to do if the situation brings teams to the point where they consider withholding part of players’ salaries.

If both parties do make their best efforts to take reasonable steps in cooperation with each other, however, it’s likely there will be no significant deterioration of the relationship between the league and the PA.

Hopefully, the WNBA season will start soon, all teams will play their full schedules and this will be a moot point. The steps that the league and players are taking now bend toward that end very well.