Sarver Messages to Ex-Employees Cloud NBA Investigation of Suns

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Penny Sarver, the wife of Phoenix Suns owner Robert Sarver, over the past weekend sent Instagram messages and texts to three former Suns employees, who in turn shared those messages with ESPN. In one message Penny Sarver warned, “If something happens to one of my children, I will hold you and [former Suns head coach] Earl Watson personally responsible. Think about your own child for a second and imagine the tables turned.”

The ex-employees described Sarver’s entreaties as intimidation tactics, a characterization that she flatly disputes. She told ESPN that her messages were merely attempts to “set the record straight” about what she describes as “lies” about her husband and the team. She also wanted to relay “some of the pain that we are going through as a family.”

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Robert Sarver and the Suns are the subject of an NBA investigation into claims that he made sexist and racist remarks. The team’s human resources department is also accused of dissuading employees from whistleblowing.

Penny Sarver’s decision to contact witnesses in an NBA investigation is questionable on several grounds.

First, any electronic message can be shared with journalists—which is exactly what happened. It’s possible that Sarver sent messages to other persons of interest to the investigation. Those messages might eventually appear in news stories as well.

Second, even if messages aren’t shared with journalists, attorneys from Wachtell, Lipton, Rosen & Katz—the law firm retained by the NBA to lead the investigation—will ask witnesses if Sarver, or anyone on his behalf, contacted and pressured them to deny allegations or withhold evidence. Wachtell, Lipton can credibly draw adverse inferences from such contacts.

Third, the messages could be seen in a similar light as witness tampering. That term refers to attempts to coerce a witness or prospective witness to testify falsely or withhold evidence. The Suns investigation is not a court proceeding (witnesses aren’t under oath; there are no subpoenas, etc.), but the same underlying policy concerns are at play. Also, the situation involving Robert Sarver and the Suns could eventually land in court. The team could sue former employees for violating non-disclosure agreements. Robert Sarver, meanwhile, could sue if the NBA or if his ownership group attempts to force him out.

Fourth, Penny Sarver is not a random person on the Internet. Her messages, particularly to persons with NBA careers, might be perceived as more threatening given her position of influence. Wachtell, Lipton will weigh that factor in its assessment.

Fifth, while it’s understandable that Penny Sarver is sensitive to how the accusations could impact her family, there are less problematic ways to make her points.

For instance, she could issue a public written statement that conveys her arguments. She could also explain to Wachtell, Lipton why the allegations are untrue and why she believes the accusers have wrongful motives. Penny Sarver could also retain an attorney who warns accusers that she and the team reserve the right to pursue legal actions, such as for defamation or violation of NDAs.

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