As interviews begin in Phoenix Suns investigation, uncertainty remains over whether employees who signed NDAs can participate freely

ByBAXTER HOLMES via <a href="http://espn.go.com/" title="ESPN" class="espn_sc_byline">ESPN </a> via via logo
November 30, 2021, 9:39 PM

The New York-based law firm leading the NBA's investigation into the workplace culture of the Phoenix Suns under owner Robert Sarver has begun scheduling and conducting in-person interviews of current and former team employees, but it's unclear whether those who have signed non-disclosure agreements will be able to speak freely to investigators.

The Suns organization and the NBA each declined to answer questions from ESPN about whether the former employees will be released from their confidentiality agreements in order to avoid potential legal penalties if they speak to investigators.

A Suns spokesperson said the organization "is fully cooperating with the investigation" but declined to answer questions about the NDA release, citing the ongoing investigation.

NBA spokesperson Mike Bass also declined to answer the question, saying: "It would be irregular to detail the methods of an investigation while it is ongoing -- as doing so could potentially prejudice or otherwise jeopardize the integrity of the investigation. All those participating will be assured that the process will be fair and impartial."

The league launched an investigation after ESPN published a story that included allegations of racism and misogyny in a sometimes hostile and toxic workplace during majority owner Robert Sarver's 17-year tenure in Phoenix. The Suns subsequently encouraged employees with any pertinent information to participate, league sources said. Recently, two investigators visited Phoenix and, over a videoconference call, ensured confidentiality to everyone who requested it to participate in the investigation, sources previously told ESPN.

But one former Suns employee told ESPN they remain uncertain about whether they can speak freely about their experiences in Phoenix, saying they would be "happy to speak" with the investigators if they are assured they will not face legal consequences. The employee is hopeful that "the NBA would have my back."

The investigators, who are expected to return to Phoenix as soon as next week, have been coordinating off-site interviews with employees in the days and weeks ahead, league sources said. The attorneys have requested documents from the Suns, including emails, human resources records and information about non-disclosure agreements, league sources said.

A former Suns human resources employee previously told ESPN that the organization would often make a settlement agreement when an employee threatened to sue or raised issues that could lead to legal action. It's unclear how many former employees have signed non-disclosure agreements, but team sources said the number of former employees who signed NDAs, along with the total amount spent on severance packages, is of interest to minority members of the Suns ownership group.

"The league and the Phoenix Suns say they want an 'open and transparent investigation,' but what is taking so long with employees being released from NDAs?" said one former Suns executive. "This should be done already."

Michael Selmi, an Arizona State University law professor who focuses on employment and discrimination law, told ESPN that he would expect all current and former employees who signed non-disclosure agreements to be allowed to speak to the league's investigators.

"If you do go after employees [with signed NDAs] that participate in the investigation, it would be hard to label that as 'full' cooperation,'" Selmi said.

"The reality is [NDAs are] hard to enforce," Selmi added. "Most people abide by them because the fear of penalties can be strong, but there's very little enforcement in courts over NDAs, so that means there is not as much case law about when NDAs are enforceable and when they're not."

Selmi explained that "fear of penalties" could include potential legal action from the Suns against employees who signed NDAs.

Under Article 24 of the league's constitution, NBA commissioner Adam Silver is granted broad powers "with protecting the integrity of the game of professional basketball and preserving public confidence in the League."

Such broad powers extend to investigations, including that Silver has the right to require "testimony and the production of documents and other evidence" from any employee, owner or member of the NBA.

In the weeks since the Suns provided employees with the contact information for the investigating attorneys, that contact information has been shared widely among former employees, with many reaching out to the investigators to inquire about times to meet, league sources said.

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