As talks begin in Phoenix Suns investigation, uncertainty remains as to whether employees who have signed NDAs can participate freely

The New York-based law firm that leads the NBA’s investigation into the Phoenix Suns workplace culture under owner Robert Sarver has started planning and conducting in-person interviews with current and former employees of the team, but it’s not clear whether those who signed the nondisclosure agreements will be able to speak freely to investigators.

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

A Suns spokesperson said the organization was “fully cooperating with the investigation” but declined to answer questions about the NDA’s release, citing the ongoing investigation.

NBA spokesman Mike Bass also declined to answer the question, saying: “It would be improper to detail the methods of an investigation while it is ongoing, as it could potentially harm or compromise the investigation. “integrity of the investigation. All participants will. Rest 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 relevant information to participate, league sources said. Recently, two investigators traveled to Phoenix and, on a video conference, assured confidentiality to anyone who asked him to participate in the investigation, sources told ESPN.

But a former Suns employee told ESPN they still don’t know if they can speak freely about their experiences in Phoenix, saying they would be “happy to speak” with investigators if they are confident they would not suffer legal consequences. The employee hopes that “the NBA will support me”.

Investigators, who are expected to return to Phoenix as early as next week, have coordinated offsite interviews with employees in the days and weeks to come, league sources said. Lawyers have requested documents from the Suns, including emails, human resources records and information on nondisclosure agreements, league sources said.

A former Suns human resources employee previously told ESPN that the organization often reaches a settlement agreement when an employee threatens to sue or raises issues that could lead to legal action. It is not known how many former employees signed non-disclosure agreements, but the team’s sources said the number of former employees who signed NDAs, as well as the total amount spent on initially, are 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’s taking so long with the employees released from the NDAs?” said a former Suns executive. “It should already be done. “

Michael Selmi, a law professor at Arizona State University who focuses on employment and discrimination law, told ESPN he would expect all current and former employees who have signed nondisclosure agreements be allowed to speak to league investigators.

“If you take it out on the employees [with signed NDAs] who are participating in the investigation, it would be difficult to qualify it as “full” cooperation, “Selmi said.

“The reality is [NDAs are] difficult to apply, ”added Selmi. “Most people respect them because the fear of penalties can be strong, but there is very little enforcement in the courts on NDAs, which means there is not as much case law at the moment. where NDAs are enforceable and when they are not. “

Selmi explained that the “fear of sanctions” could include possible legal action by the Suns against employees who have signed NDAs.

Under Article 24 of the league’s constitution, NBA commissioner Adam Silver has broad powers “to protect the integrity of professional basketball and preserve public confidence in the league.”

These broad powers extend to investigations, including the fact that Silver has the right to demand “a 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 details of investigating attorneys, this contact information has been widely shared among former employees, with many reaching out to investigators to inquire about meeting times, sources said. the league.

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