Potential disciplinary action against Reuben Foster remains in a holding pattern while the Santa Clara County district attorney’s office continues its investigation of his Feb. 12 arrest.
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Police booked the 49ers linebacker on suspicion of Corporal Injury to Spouse (California Penal Code 273.5), Criminal Threats (California PC 422), and Possession of an Assault Weapon (California PC 30605).
Under California law, all three of those potential charges are considered “wobblers,” meaning that they can be classified as either felonies or misdemeanors depending on the discretion of the district attorney.
So what awaits Foster next from a legal perspective?
That’s all contingent on whether or not the DA presses formal charges as a result of the incident, and — if that happens — the severity of those charges. Because Foster is free on $75,000 bail, the DA’s investigation can be protracted in this situation, and it may take several weeks to reach a final decision on potential charges.
In the meantime, Foster is on the Feb. 28 Tuscaloosa County court docket for his first hearing stemming from a Jan. 12 arrest in Alabama. Foster faces a misdemeanor second-degree marijuana possession charge in that case, the potential impact of which is discussed here.
When it comes to the NFL’s disciplinary process, Foster is in a totally different boat, and league rules and policy make the next developments less clear to chart out.
To begin, the Personal Conduct Policy clearly states that NFL discipline is administered separately from that of the general legal system.
“In cases where a player is not charged with a crime, or is charged but not convicted, he may still be found to have violated the Policy if the credible evidence establishes that he engaged in conduct prohibited by this Personal Conduct Policy,” the policy reads.
The policy covers any conduct “that is illegal, violent, dangerous, or irresponsible,” but specifies that criminal assault, battery, domestic and dating violence, and sexual assault should “subject the offender to a baseline suspension without pay of six games, with consideration given to any aggravating or mitigating factors.”
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The NFL has presumably already started its own investigation of Foster’s February arrest, as the Personal Conduct Policy dictates that NFL Security should undertake one whenever it becomes aware of a possible violation. The results of this investigation will be forwarded to commissioner Roger Goodell, who has final authority to ultimately levy a suspension.
Though six games is the recommended suspension baseline in cases of domestic violence, the NFL may consider a weapons violation — if Foster ends up being charged and convicted on that count — an “aggravating factor” and lengthen a potential suspension.
(The league can also ultimately determine to impose no discipline for the incidents relating to domestic violence. This is what happened to cornerback Tramaine Brock, whom the 49ers released after he was arrested on suspicion of domestic violence last April. The DA never charged Brock, and the league also ended up not disciplining him.)
Publicly available evidence in the Foster case remains inconclusive. According to the Mercury News, his longtime girlfriend accused him of dragging her “in an apparent attempt to remove her from the home.” That same article also reports that Foster’s girlfriend said that he threw her belongings onto a front walkway and balcony, and that officers recovered a SIG Sauer 516 short-barreled rifle after Foster’s girlfriend alerted them that he owns semi-automatic rifles.
But those are the only details that are public right now. Criminal investigators and NFL Security are privy to much more, so this can all still go in a number of different directions — all depending on what they learn throughout the fact-finding process.
In the case of Dallas Cowboys running back Ezekiel Elliott, who was arrested but never criminally charged for an alleged domestic violence incident involving his ex-girlfriend, the NFL imposed the baseline six-game suspension anyway following its own yearlong investigation.
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Because Elliott’s case stemmed from accusations of domestic violence on five occasions while Foster has only been accused in one incident, the NFL’s investigation in this instance will presumably be quicker.
What can be expected to happen if the league ultimately suspends Foster?
This possibility is worthy of extra discussion here, especially when viewed through the context of Foster’s first year in the NFL: During Foster’s rookie campaign, the rigid structure of the football season coincided with no legal issues off the field.
But in just 43 days after the 49ers season had ended, Foster had already been arrested twice. Both incidents, of course, provided sobering reminders of behavioral questions that dogged Foster shortly before he joined the 49ers: His urine sample came back diluted at the 2017 NFL scouting combine, and he was kicked out of that very same event for arguing with a hospital worker for reportedly growing impatient in line while waiting to be tested.
Foster is eligible to participate in the 49ers’ offseason program, training camp, and preseason as long as he remains with the team since a possible suspension would not take effect until the start of the 2018 regular season. But such a suspension could theoretically pry Foster away from the football support system that, so far, appears to have effectively shielded him from trouble.
Neither the Personal Conduct Policy nor the NFL’s Collective Bargaining Agreement (CBA) specify the exact terms of player suspensions. But via emails with The Athletic, NFL Vice President of Communications Brian McCarthy wrote that what players and teams “can and can’t do (during suspensions) is outlined in a letter to the player at the time of discipline.”
So the particular restrictions of each suspension under the Personal Conduct Policy can vary on a case-by-case basis, but there are some stipulations that are set in stone.
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“Players cannot go to the facility or have any contact with the team or teammates related to football,” McCarthy wrote. “(Players) cannot receive the playbook or discuss strategy or receive any instruction from the coaching staff.”
If this whole process ends in a Foster suspension, it’s safe to assume that — in the spirit of maintaining as much of an in-season support system as possible — the 49ers will want to keep lines of contact to Foster as open as possible.
Along those lines, McCarthy offered this: “Team doctors and other medical staff including counselors can speak to the player. Teammates could casually check in with the player and go to his house. We haven’t previously had issues in this area.”
As for right now, although Article 21 of the CBA prohibits players from having “club-supervised practices, group, or individual meetings with coaches” before the offseason program begins in April, the rules frame that restriction only in a football sense: The 49ers brass is allowed to contact Foster and discuss non-football matters at any point of the year, so long as he remains unsuspended.
This already happened last Monday, when the NFL Network’s Ian Rapoport reported that Foster visited the team facility and met with 49ers officials.
The Personal Conduct Policy also states that “any player arrested or charged with violent or threatening conduct that would violate this policy will be offered a formal clinical evaluation, the cost of which will be paid by the league, and appropriate follow-up education, counseling, or treatment programs.”
The policy further reads that successful completion of any offered counseling or treatment program can mitigate any potential punishment the NFL imposes on Foster in the future — if this case reaches that point, of course.
Beyond this league-provided assistance, NFL rules also allow for the 49ers to provide Foster with a mentor and impose strict off-the-field guidelines on the linebacker if he agrees to them.
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In perhaps the most notable recent example, the Cowboys required receiver Dez Bryant to be shadowed by a rotating three-man security team at all times. The team and Bryant agreed to this and other strict guidelines in 2012, after he had been charged with assaulting his mother.
Although the 49ers likely won’t employ such severe measures with Foster, they’ll likely proceed with utmost caution in his situation. Given the concerns that were already following Foster at the time the 49ers drafted him, this has been a sensitive matter from the moment of the linebacker’s entry into the league.
Before the most recent arrest, management publicly expressed confidence in Foster’s ability to stay out of trouble. And even after the freshest incident, there’s certainly an added sensitivity to the ways the 49ers may be able to help the 23-year old Foster overcome a challenging upbringing.
His father, Danny Foster, shot his mother Inita Paige in 1995. The bullet also hit and wounded an 18-month old Reuben Foster, whom Paige was holding at the time. Danny Foster escaped jail in 1996 and was not re-apprehended until 16 years later, when Reuben Foster was playing college football for Alabama. Danny Foster is now in prison serving a 30-year sentence.
Reuben Foster’s arrest on suspicion of domestic violence and illegal weapons possession, of course, has only complicated an already-thorny situation.
The 49ers would obviously benefit from helping to permanently steer Foster onto a trouble-free track — his football talent and his magnetic locker room presence are undeniable positives for the team — but, as has already been repeatedly demonstrated, this is all treacherous ground.
And although the complex set of NFL disciplinary possibilities and possible team responses moving forward can be difficult to sort out, it is apparent that the team — if it does not cut Foster as this current investigation unfolds — does have some recourse at its disposal to assist him moving into the future.
(Top photo: Sergio Estrada/USA TODAY Sports)
