The entire process almost certainly will keep Foster from practicing with the Redskins or attending their games for the remainder of this season and could keep him off the field for at least a portion of next season, according to people within the league familiar with its disciplinary procedures.
“The team is fully aware of the fact this could be a while,” one of those people said Wednesday, speaking on the condition of anonymity because of the controversy surrounding Foster’s case and the Redskins’ decision to obtain his rights.
The NFL placed Foster on the commissioner’s exempt list, a paid-leave procedure that came to prominence in 2014 when the league utilized it to keep running back Adrian Peterson, then with the Minnesota Vikings, and defensive end Greg Hardy, then with the Carolina Panthers, off the field while they faced legal charges in high-profile cases.
Foster and the NFL Players Association have until Friday, three days from the moment he was placed on the exempt list, to appeal the league’s paid-leave decision. Such an appeal would be heard by NFL Commissioner Roger Goodell, making it unlikely that the decision would be overturned. A person on the players’ side of the disciplinary process said Wednesday it was “uncertain” how the union would proceed in terms of arbitrating the paid-leave decision for Foster before Goodell.
So the league and Goodell will have the discretion to keep Foster from playing for the Redskins while his legal case proceeds. While on the exempt list, Foster will be paid his weekly salary of $51,512; that’s a prorated portion of his 2018 salary of $875,708. The Redskins, by claiming Foster off waivers, inherited his contract from the 49ers.
That deal, signed before his rookie season in 2017, runs through the 2020 season and calls for Foster to have salaries of $1.29 million next season and nearly $1.7 million in 2020. The Redskins have a fifth-year option in Foster’s contract for the 2021 season, by virtue of his status as a former first-round draft choice, under the league’s rookie compensation system.
While Foster cannot practice or attend Redskins' games while on the exempt list, he is permitted to be at the team’s training facility for meetings, workouts and medical treatment. He was at the team’s facility on Wednesday.
Goodell has broad player-disciplinary powers under the sport’s collective bargaining agreement and the league’s personal conduct policy. Goodell’s authority in player discipline has been reinforced by courtroom victories by the NFL after legal challenges by the NFLPA. The league’s use of the commissioner’s exempt list to keep players on paid leave with legal cases pending also has withstood a challenge by the NFLPA.
The league began its own investigation of Foster’s case Sunday and will continue to conduct that probe while monitoring developments in the legal case, according to those people with knowledge of the matter.
“It’s early in the process,” one of those people said. “It really comes down to the investigation.”
When the NFL decided earlier this year not to place Buffalo Bills running back LeSean McCoy on paid leave via the commissioner’s exempt list, it appeared that the NFL’s investigation of the matter was contained to monitoring developments in McCoy’s legal case. But the personal conduct policy does allow the league to conduct its own investigations, and the NFL is empowered to discipline a player under the policy even in a case in which the player is not convicted of a crime.
The NFL could make its decision on whether to suspend Foster under the personal conduct policy before his legal proceedings conclude. But it is unlikely that the league will get ahead of the legal case and make such a decision on a suspension before there is an outcome of the criminal proceedings, those people familiar with the NFL’s procedures said.
If Foster eventually is suspended under the personal conduct policy, that suspension would be without pay. Under the policy, revised by the league and the owners after the NFL and Goodell faced harsh criticism for their handling of a case involving running back Ray Rice in 2014, the baseline suspension for a player involved in a case of domestic violence is six games. The policy allows for the suspension to be reduced or lengthened, depending on the circumstances of a particular case.
The NFLPA challenged Goodell’s authority in player discipline via lengthy courtroom tussles with the league in cases involving New England Patriots quarterback Tom Brady and Dallas Cowboys running back Ezekiel Elliott. In each case, the union managed to delay the onset of the suspensions but the league ultimately prevailed on appeal and the players served their full suspensions.
The union filed a grievance in 2015 challenging the NFL’s use of the exempt list. Arbitrator Jonathan Marks affirmed the league’s right to use the list by ruling in the NFL’s favor in 2016.
At the time, league attorney Jeff Pash wrote to NFL teams that the ruling “recognizes and confirms the broad authority that the Commissioner has to define and impose discipline for conduct detrimental.”
A player can be placed on paid administrative leave by the NFL, under the personal conduct policy, if he is formally charged with a violent crime. The policy defines that as having used physical force or a weapon to injure or threaten another person, having committed a sexual assault, having engaged in animal abuse or having “engaged in other conduct that poses a genuine danger to the safety or well-being of another person.” The policy also gives Goodell the authority to use the exempt list if he believes after an investigation that a player may have violated the policy in any of those ways.
Foster was arrested Saturday at the team hotel for the 49ers in Tampa According to police, a victim, later reported to be Foster’s girlfriend, said that Foster slapped her phone out of her hand, pushed her in the chest and slapped her in the face with an open hand.
Foster was suspended by the NFL for the first two games of this season under the personal conduct and substance abuse policies.
Charges against him, as a first-time offender, were dropped after he was arrested in January in Alabama for marijuana possession. After his girlfriend accused him of striking her in February, Foster was charged in April with felonies for domestic violence, making criminal threats and weapon possession. The domestic violence charge was dropped after Foster’s girlfriend recanted her allegation. Foster pleaded no contest in June to misdemeanor possession of an assault weapon and was given probation, a fine and a 50-day work sentence.
Last year, Foster was sent home from the NFL scouting combine in Indianapolis after an argument with a hospital worker.