San Diego Wave Lawsuit Vs. Ellis Exposes Gap In NWSL Commissioner Authority

On September 29, 2025, Laure Leichtman and Arthur Levine, the owners of the San Diego Wave, sued the club’s former President, Jill Ellis, alleging that she fraudulently told the owners that she would remain with the club after they acquired it in October 2024. Ellis’ attorney countered that the lawsuit came only after Ellis requested $1.2 million owed to her in deferred compensation. The litigation reveals that NWSL Commissioner Jessica Berman does not seem to have the same (but dwindling) authority typical of commissioners in sports.

The History Of NWSL Commissioner Authority

The first commissioner in professional sports was baseball’s Kennesaw Mountain Landis. He was appointed in 1920 to respond to the Black Sox scandal in which players on the Chicago White Sox were found to have thrown the 1919 World Series in exchange for payments from mobsters. From that hiring on, the role of the commissioner in sports has been understood as one having broad authority to govern the sport according to what the commissioner believes to be in the sport’s best interests.

Indeed, courts have regularly rejected challenges to decisions made by the MLB Commissioner. In 1931, the Northern District of Illinois dismissed a suit from the then-minor league Milwaukee Brewers challenging Landis’ rejection of an optional player contract between the St. Louis Browns and the Brewers, holding that “the commissioner acted clearly within his authority.” In 1977, the Northern District of Georgia held that Commissioner Bowie Kuhn had the authority to discipline the Atlanta Braves for violations of a recently-imposed no-tampering policy under the Commissioner’s broad authority to act “in the best interests of baseball.” The next year, the Seventh Circuit Court of Appeals affirmed a decision upholding Kuhn’s authority on the same ground to disallow the Oakland Athletics’ sale of left fielder Joe Rudi and pitcher Rollie Fingers to the Boston Red Sox for $2 million and pitcher Vida Blue to the New York Yankees for $1.5 million.

Similarly, courts have regularly rejected lawsuits brought by the NFLPA and NFL players challenging Commissioner Roger Goodell’s authority to adjudicate player discipline matters, citing the Commissioner’s broad authority as agreed to in the NFL-NFLPA collective bargaining agreement.

At some point, the leagues realized that the intra-league disputes that exposed baseball’s dirty laundry in the 1970s would be better resolved in a non-public forum. To that end, today, all of the major North American sports leagues have provisions in their governing documents (e.g., a Constitution and Bylaws) that require that a broad range of disputes concerning league business be decided by an arbitration presided over by the Commissioner or their designee. In addition to providing privacy, this process was intended to ensure that the best interests of the sport, i.e., the leagues’ interests, were taken into account.

Moreover, these arbitration provisions extend to disputes between clubs and their employees, since employees of professional sports teams generally agree to abide by league rules (typically via an Employee Handbook).

Commissioner Authority Currently

The broad authority of commissioners to adjudicate disputes within their leagues is experiencing unprecedented uncertainty. In August of this year, the United States Court of Appeals for the Second Circuit held that Goodell could not serve as the arbitrator in an action initiated by coach Brian Flores alleging that the NFL and several clubs had racially discriminatory hiring practices. Just days prior to that, the Nevada Supreme Court ruled that permitting Goodell to arbitrate a dispute between former coach Jon Gruden and the NFL would be “unconscionable.”

Importantly, the Second Circuit explained that its ruling did not alter prior decisions in which it had upheld the broad authority of the NFL Commissioner to serve as the arbitrator in disputes over player conduct. The important distinction was and is that the player conduct arbitration process was negotiated with and agreed to by the NFLPA whereas Flores and Gruden had no meaningful opportunity to negotiate over the NFL’s arbitration process.

Commissioner Authority In The NWSL

Berman is no stranger to commissioner authority. She started her career as an attorney at Proskauer Rose, a law firm which regularly assists sports leagues and teams in employment litigation and arbitration. Next, she spent 13 years as an attorney at the NHL, including many years as one of the league’s top attorneys negotiating against players.

Furthermore, after taking over as Commissioner of the NWSL in April 2022, Berman was steadfast in asserting her apparent authority to address some of the league’s problems. After two separate investigative reports were issued in the fall of 2022 which identified numerous instances of sexual, racial and other inappropriate comments and misbehavior by NWSL coaches and executives, the NWSL announced that Berman had banned five coaches from the league and banned two others until 2025.

Yet, the lawsuit by the Wave against Ellis suggests that Berman does not have the same broad authority of commissioners in other leagues. Specifically, it does not seem that the NWSL’s operating documents (e.g., the limited liability company agreement among its club-members), requires that disputes between teams and their employees be subject to arbitration before the Commissioner. Indeed, Ellis’ attorney, Douglas Silverstein of Kesluk, Silverstein, Jacob & Morrison, PC, said he is unaware of any provision which would require the Wave’s action to be arbitrated. He also confirmed that Ellis’ employment agreement did not contain an arbitration provision. Neither the Wave’s attorneys nor the NWSL responded to a request for comment.

While Ellis might have challenged Berman’s authority to adjudicate the dispute (a la Flores and Gruden), the absence of such a provision is an own goal for NWSL. At a time when the NWSL is growing but also facing increased competition domestically and internationally, it is unhelpful to have a public lawsuit involving one of its clubs and one of the most successful soccer coaches in recent memory (women’s or otherwise). If the lawsuit proceeds, there will almost certainly be the public filing of facts, claims, and documents which the NWSL would prefer to remain private. One wonders how carefully the Wave’s owners and attorneys considered these issues before commencing litigation.