WNBA Player Eligibility: Towards Greater Regulatory Clarity
By Dr Estelle Ivanova, Attorney at Law, Paris, France
The debate over the participation of transgender women in women’s sport is an ongoing issue around the world and has reached the Women’s National Basketball Association (WNBA) in the US, raising questions not only about sporting fairness and inclusion, but also about the legal and regulatory adequacy of eligibility rules in professional women’s sport.
The issue came into particular focus following comments by Sophie Cunningham, Indiana Fever professional basketball player, concerning the protection of women’s sport. In an interview with ESPN, Cunningham rejected suggestions that she was hostile towards transgender people, whilst stating that she wanted to protect young girls in sport who, in her words, “shouldn't have to go against biological men”. Her comments have contributed to a wider public debate concerning transgender participation in women’s sport.
Enes Kanter Freedom, who played 11 seasons in the NBA, and Royce White, also a former NBA player, have announced their intentions to declare for the 2027 WNBA Draft, expressly raising questions about the application of the WNBA existing eligibility rules.
From a legal perspective, however, these developments raise a more fundamental regulatory question: what does the WNBA existing legal framework actually provide?
A collectively bargained eligibility rule
Unlike eligibility regimes established unilaterally by many international sports federations, player eligibility in the WNBA forms part of the collective bargaining framework agreed between the League and the Women’s National Basketball Players Association (WNBPA).
Article XIII, Section 1(a) of the 2026 WNBA Collective Bargaining Agreement, entitled “Player Eligibility and WNBA Draft”, provides that:
“Only players who are women are eligible to play in the WNBA.”
The apparent simplicity of this provision nevertheless raises important questions concerning its interpretation and application. Section 1(a) does not define the term “women” for eligibility purposes, nor does it set out specific criteria governing the eligibility of transgender athletes.
This distinction is important. The absence of such criteria in Section 1(a) does not necessarily mean that eligibility can be established merely through self-identification. Equally, however, where an eligibility provision establishes a protected sporting category without itself specifying the criteria by which membership of that category is to be determined, questions may arise as to its interpretation and application in circumstances not expressly addressed by the provision.
From a regulatory perspective, the issue is, therefore, one of legal certainty: whether the existing eligibility provision provides sufficient clarity to ensure its predictable and consistent interpretation and application.
Fair competition, inclusion and legal certainty
The WNBA now faces an issue familiar to sports governing bodies worldwide: how to reconcile several legitimate but potentially competing objectives.
These include maintaining fair competition and the integrity of the women’s category; protecting the rights and dignity of athletes; avoiding unlawful discrimination; and establishing eligibility standards that are sufficiently clear, predictable and capable of consistent application.
The issue is particularly significant because eligibility rules determine access to competitions. Any further development of those rules, therefore, requires careful consideration of the objectives pursued; the criteria by which eligibility is determined; and the need for rules capable of consistent and predictable application.
The WNBA structure adds another dimension. Because its eligibility rules form part of a collectively bargained framework, any clarification or modification of those rules would necessarily need to take account of the role of both the WNBA and the WNBPA within that framework.
WNBA Commissioner Cathy Engelbert has expressly emphasised the collectively bargained nature of the League’s eligibility rules, whilst indicating that the issue will be considered further. She has also stressed the importance of preserving the integrity of the game and ensuring fair competition, stating that the League would approach the matter thoughtfully and respectfully.
The Scope and Limits of Dispute Resolution under the CBA
The 2026 CBA itself provides a mechanism for resolving disputes concerning player eligibility.
Under Article XXIII, disputes involving the “interpretation of, application of, or compliance with” Article XIII are to be resolved by the Arbitrator appointed under the CBA, in accordance with the procedures set out in Article XXIII.
The distinction between interpretation and regulatory development is nevertheless important. Although the Arbitrator may make findings of fact and grant appropriate relief, Article XXIII expressly provides that the Arbitrator has no authority to “add to, detract from, or alter in any way” the provisions of the CBA.
Accordingly, an eligibility dispute concerning the interpretation or application of Article XIII, Section 1(a) could potentially fall within the CBA arbitral framework. A substantive clarification or further development of the eligibility criteria would, however, serve a different function and would more naturally fall within the collectively bargained process between the WNBA and the WNBPA. This distinction reinforces the importance of regulatory clarity.
A wider development in sports regulation
The issue facing the WNBA reflects a wider development in sports regulation. The regulatory landscape surrounding transgender participation in women’s sport has become increasingly diverse, with sporting organisations adopting different approaches according to the characteristics of their sport; their legal environment; and their assessment of competitive fairness. There is, therefore, no single regulatory model that can automatically be transposed from one sport or jurisdiction to another.
For the WNBA and the WNBPA, the present debate may provide an opportunity to consider whether further clarification of the existing eligibility framework would be appropriate. The question is not necessarily whether that framework should be fundamentally reconsidered, but whether it can continue to evolve in a manner that promotes clarity, predictability and consistent application.
Whatever substantive approach is ultimately adopted, clearly articulated eligibility rules; objective criteria; and transparent decision-making remain important elements of legal certainty and sound sports governance.
In this respect, continuous improvement should be regarded as a feature of sound governance rather than as an indication of regulatory deficiency. As the legal and sporting environment evolves, appropriate clarification and, where necessary, carefully considered regulatory updates can strengthen legal certainty; preserve the integrity of competitions; and provide greater predictability for all stakeholders.
It will be interesting to see how this controversial situation in women’s basketball in the US is eventually clarified and resolved.
Dr Estelle Ivanova may be contacted by e-mail at ‘
