The New York-based law firm in charge of the NBA’s investigation into the Phoenix Suns’ workplace culture under owner Robert Sarver has begun scheduling and conducting in-person interviews with 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 organisation and the NBA both declined to answer ESPN’s questions about whether the former employees’ confidentiality agreements will be lifted in order for them to avoid potential legal penalties if they speak to investigators.
A Suns spokesperson stated that the team “is fully cooperating with the investigation,” but declined to comment on the NDA release, citing the ongoing investigation.Mike Bass, an NBA spokesperson, also declined to answer the question, saying: “It would be inappropriate to discuss the methods of an investigation while it is still ongoing, as doing so could potentially prejudice or jeopardise the investigation’s integrity. Everyone involved will be assured that the process will be fair and impartial.
“After ESPN published a storey alleging racism and misogyny in a sometimes hostile and toxic workplace during majority owner Robert Sarver’s 17-year tenure in Phoenix, the league launched an investigation. According to league sources, the Suns then encouraged employees with any relevant information to participate. According to ESPN, two investigators recently visited Phoenix and ensured confidentiality to everyone who requested it to participate in the investigation via videoconference call.
However, one former Suns employee told ESPN that they are still unsure whether they can speak freely about their experiences in Phoenix, adding that they would be “happy to speak” with the investigators if they were assured they would not face legal ramifications. The employee believes that “the NBA will have my back.”According to league sources, the investigators, who are expected to return to Phoenix as soon as next week, have been coordinating off-site interviews with employees in the coming days and weeks.
According to league sources, the attorneys have requested documents from the Suns, including emails, human resources records, and information about non-disclosure agreements. A former Suns human resources employee previously told ESPN that when an employee threatened to sue or raised issues that could lead to legal action, the organization would frequently reach a settlement agreement.
It’s unclear how many former employees signed nondisclosure agreements, but team sources say the number of former employees who signed NDAs, as well as the total amount spent on severance packages, is of interest to minority Suns ownership group members.
“The league and the Phoenix Suns say they want an ‘open and transparent investigation,’ but why is it taking so long with employees being released from NDAs?” a former Suns executive asked. “This should have been done a long time ago.”According to Michael Selmi, an Arizona State University law professor who specializes in employment and discrimination law, all current and former employees who signed non-disclosure agreements should be allowed to speak with the league’s investigators.”It would be difficult to label employees [with signed NDAs] who participate in the investigation as ‘full’ cooperation,” Selmi said.”The reality is that [NDAs] are difficult to enforce,” Selmi added.
“Most people abide by them because the fear of penalties can be strong, but there is very little enforcement in courts over NDAs, so there isn’t as much case law about when NDAs are and aren’t enforceable.” Selmi explained that “fear of penalties” could include the Suns pursuing legal action against employees who signed NDAs.Article 24 of the NBA constitution grants commissioner Adam Silver broad powers to “protect the integrity of the game of professional basketball and maintain public confidence in the League.
“Such broad powers extend to investigations, with Silver having the authority to demand “testimony and the production of documents and other evidence” from any NBA employee, owner, or member.
In the weeks since the Suns provided employees with the contact information for the investigating attorneys, that information has been widely shared among former employees, with many contacting the investigators to inquire about meeting times, according to league sources.
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