Reuben Foster and His Future

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March 7, 2019

by Steve Thomas

One thing I come across quite a bit with fans is a common misconception about Reuben Foster’s status in light of his criminal case being dropped by the state of California.  Therefore, I thought I’d take a break from my ongoing free agency series to give an update into Foster’s status and what comes next for him.

As a bit of background, Foster was a 2017 first round pick by the 49ers out of the University of Alabama.  He had an extremely troubled youth that included both he and his mother being shot by his father.  I don’t want to spend too much space going into detail here, because it isn’t relevant to his current situation, but you should understand that Foster is a guy whose past appears to have framed his present.  He has a long history of trouble as a professional, dating back to his earliest NFL interactions, when he failed his drug test at the 2017 NFL Combine and then got kicked out for arguing with a student hospital worker during his medical exam.

The NFL isn’t allowed to confirm or deny a player’s status in the NFL’s drug program, but Foster was almost assuredly placed in phase 1 of the drug program as a result of his Combine test failure.

He was charged with possession of marijuana on January 3, 2018, in Tuscaloosa County, Alabama.  The state later dropped the charges.  This failure most likely put him into phase 2 of the drug program.

On February 11, 2018, Foster was arrested in California on suspicion of domestic violence, making threats, and assault weapons charges stemming from allegations made by his girlfriend, Elissa Ennis.  He was charged on April 12, 2018, with multiple counts of felony domestic violence, weapons possession, and infliction of bodily harm.  Ennis claimed that Foster dragged her and hit her 8 to 10 times.  However, Ennis recanted her allegations in May, stating that she invented the allegations as a money-making scheme.  The state dropped the domestic violence and infliction of bodily harm charges as a result.  Foster then pled no contest to a misdemeanor weapons charge in early June, which resolved all of the charges.  A plea of “no contest” means that the defendant does not contest the charges, and has the same legal effect as pleading guilty.  Foster was given community service and probation.  The NFL suspended him for 2 games for the drug possession and weapons charge.

The Santa Clara, California, police responded to a second domestic dispute between Foster and Ennis on October 12, but did not arrest either person at that time.

Foster was arrested again on November 24, 2018, with charges stemming from a third alleged domestic dispute with Ennis.  He was charged with misdemeanor domestic violence.  The 49ers were finally tired of Foster and released him shortly thereafter, and he was somewhat infamously claimed off of waivers by the Redskins.  The state of California later dropped the criminal charges, specifically citing “insufficient evidence”.

To summarize:

  • February, 2017: failed drug test at Combine
  • February, 2017: kicked out of Combine
  • January, 2018: arrested for possession of marijuana
  • February, 2018: arrested and charged with felony domestic violence, weapons possession, infliction of bodily harm (DV and infliction of bodily harm charges dropped; pled no contest to weapons charge) (2 game suspension for both marijuana and weapons charge)
  • October 12, 2018: domestic dispute with Ennis (not arrested)
  • November 24, 2018: arrested and charged with misdemeanor domestic violence (charges dropped)

All of that happened in about 20 months.

The state must prove any criminal case to the highest standard of proof in American jurisprudence, which is “beyond a reasonable doubt”.  Most civil lawsuits involving things like assault only need to be proved to a “more likely than not” standard of proof, which is one of the big reasons why it is much easier to get a civil judgment against a person than it is to get a criminal conviction against the same person with the same facts.  For example, O.J. Simpson was found not guilty of murder in his criminal case in 1995, but was subsequently found liable for wrongful death (which is the civil version of a murder charge in a criminal case) in the civil case brought against him under the exact same facts.  This happened because the standard of proof in Simpson’s criminal case was much higher than it was in his civil case.  The criminal jury felt they couldn’t convict largely because of evidentiary problems, whereas the civil jury quickly found him liable without much deliberation.

District attorneys (the attorneys who prosecute criminal cases on behalf of the state) may drop a case for any number of reasons, from evidentiary problems, defendant rights violations, unreliable witnesses, and other things.  In this case, the District attorney specifically cited “insufficient evidence”, which does not mean “no evidence” or “the defendant is exonerated and innocent”.  This means that the state did not believe it could prove the charges against Foster to the “beyond a reasonable doubt” standard of proof.  It has very little to do with whether or not the defendant actually “did it” or could be found liable under the lower, “more likely than not” civil standard.  Neither standard is necessarily more credible than the other.

What does this mean for Foster’s future in terms of NFL discipline?  The governing document is the NFL’s Personal Conduct Policy from December, 2014.  The policy governs personal conduct for essentially everyone employed by the NFL, prospective employees, and drafted players who aren’t yet signed (plus owners; see Kraft, Robert).  As related to Foster’s November incident, the policy prohibits “[a]ctual or threatened physical violence against another person, including dating violence, domestic violence, child abuse, and other forms of family violence.”  The NFL must do an investigation if it becomes aware of an incident that is a possible violation of the policy.  The league can conduct this investigation through their own internal security arm (called NFL security), a third party such as a law firm or contract investigators, or a combination of the two.  The policy states that the NFL “may rely on information obtained by law enforcement agencies, court records, or independent investigations conducted at the direction of the NFL.”

The policy provides that a person has violated the policy if

“you have a disposition of a criminal proceeding . . . or if the evidence gathered by the league’s investigation demonstrates that you engaged in conduct prohibited by the Personal Conduct Policy.” (emphasis added)

Here’s the most important part as relevant to Reuben Foster:

“In cases where you are not charged with a crime, or are charged but not convicted, you may still be found to have violated the Policy if credible evidence establishes that you engaged in conduct prohibited by this Personal Conduct Policy.” (emphasis added)

What this means is that someone can be found to have violated the policy if (1) the person is adjudicated guilty or pleads no contest in his criminal case, or (2) if the NFL gathers evidence that demonstrates that the person “engaged in” the prohibited conduct irrespective of the outcome of a criminal case. The standard of proof used here is found in the quote above – “credible evidence”.  That’s a much lower standard of proof than found in a criminal case, and it may be even lower than required in a civil suit (“more likely than not”).

In other words, the evidence that was found to be “insufficient” for the District Attorney in Foster’s criminal domestic violence case may be enough to be “credible evidence” for purposes of the Personal Conduct Policy.  You may not like it, you may not agree with it – because lord knows I’ve heard that many times from fans – but it’s quite simply the truth of the situation.

Having said all of that, let’s talk about what the facts of Foster’s case may mean to the NFL.  The woman involved in the November, 2018, incident, Ms. Ennis, is the same woman who recanted her story regarding the prior February, 2018, incident.  The story about the Novemeber incident, as reported in various media outlets, was that Foster slapped a cell phone out of Ennis’ hand, pushed her, and then slapped her across the face with an open hand.  We don’t have any specific information as to why the district attorney deemed the evidence in the criminal case to be insufficient, but my guess is that Ms. Ennis’ credibility as a witness was a problem and the physical evidence was not enough to convince a jury that Foster was guilty beyond a reasonable doubt without Ms. Ennis being more credible.

The only thing the NFL really cares about in this and other similar cases is this: did he do it?  As applied here, did Reuben Foster strike Ms. Ennis for any reason, regardless of circumstance?  The NFL’s standard of proof – “credible evidence” – allows the NFL to not care about having to convince a jury, living up to the “beyond a reasonable doubt” standard, or the accused’s constitutional rights that matter a great deal to a successful criminal prosecution.

Right now, the NFL is trying to determine whether Foster hit Ennis or not.  That’s it.  It’s a tough case, because there’s no video, but there’s no reason why the investigation can’t be resolved one way or the other this offseason.  If the NFL thinks Foster hit her, then he will probably be suspended; whereas, if either the NFL can’t determine what happened or doesn’t think he struck her, then he won’t be. It’s that simple. My recommendation to you is to not put too much stock into what you’ve read about the factual details of the case, because I can tell you from personal experience that unless you’ve read the case file, you don’t really know what the evidence shows, good or bad, no matter what is reported in the media.

Based on Bruce Allen’s comments at the Combine last week in which he said, “[t]he charges have been dropped, [and] there are no complaints, so it’s time for him to play football”[1], Allen either believes or hopes that Foster will not be suspended. That having been said, the Ezekiel Elliott matter is recent precedent where the NFL punished a player who had not been convicted of charges brought against him; the NFL also beat Elliott’s legal challenge to the suspension.  Don’t be surprised it if happens again.

 

 

[1] https://www.washingtonpost.com/sports/2019/03/01/bruce-allen-reuben-foster-its-time-him-play-football/?utm_term=.82f752ae3d0e