From the beginning, the WNBA—which was born of the NBA’s approval in the NBA’s cities with NBA teams’ colors and largely NBA-related names and which survived a challenge from the ABL by virtue of its NBA affiliation—has featured a more stringent age eligibility rule than the NBA. When taken together, the two rules create two different tracks—one for men and one for women—to be negotiated on route to a professional basketball career in the United States. This sort of dualtracking, in which one route presents advantages over the other, is unacceptable in a nation committed to gender equity, and it therefore requires Title VII scrutiny.

Although parent companies often are not held liable for their subsidiaries’ acts, both the integrated enterprise doctrine and the direct liability participation doctrine suggest the NBA could be held liable for the discrimination that flows from the divergent policies. And, therefore, whether the NBA is determined under Title VII analysis to be a third party employer or an employment agency, an aggrieved woman basketball player who is ruled ineligible under the WNBA’s age eligibility rule but who would be eligible, were she a man, under the NBA’s age eligibility rule, will have a potentially viable claim. As such, the NBA and WNBA would do well to revise their age eligibility policies such that men and women of the same age have the same access to employment in the NBA and WNBA, respectively.