49ers’ handling of Reuben Foster domestic abuse case seen as a bit of progress

Berkeley Law alumna Jerri Kay-Phillips says the NFL is making progress in the way it handles accusations of domestic abuse. (Photo: Blogtrepreneur)

The news that the San Francisco 49ers were severing ties with linebacker Reuben Foster after a second accusation of domestic abuse told Jerri Kay-Phillips that the system is beginning to work better for victims.

Kay-Phillips, whose 2016 legal study “Unnecessary Roughness,” published in the Berkeley Journal of Entertainment and Sports Law, documents the way domestic abusers who have played in the NFL have been treated over time, says “I think it was appropriate the way the 49ers handled the situation.”

“When the first allegation against Reuben Foster arose, he got due process, which is right and the way it should be,” says Kay-Phillips, an alumna of Berkeley Law and an associate with San Francisco’s Hanson Bridgett law firm. “The second time, they did what they should have done and cut ties with him. I suppose they could have fined him or suspended him, but I appreciate that they cut ties with him.”

The second incident is alleged to have taken place Saturday night in the Tampa hotel in which the 49ers were staying before their Sunday NFL game against Tampa Bay. Reports say the accuser was the same woman who originally accused Foster of felony domestic violence earlier this year.
Ennis later recanted that first accusation.

San Francisco 49ers general manager John Lynch told the media that he heard of Foster’s arrest at dinner Saturday night and immediately decided Foster could no longer be part of the 49ers’ organization.

Jerri Kay-Phillips

And while Kay-Phillips says she sees that as the correct call, given the information the 49ers had and the history the club had with Foster, she’s not sure that Lynch should have been the one making that decision. As part of her 2016 documentation of the subject, she had some suggestions that the NFL and its teams have yet to act on.

“What I do hope is that they look at some of the recommendations I had,” Kay-Phillips says. “It’s important to take the decision-making out of the hands of the teams. It’s tough to release players under the best of circumstances. What’s needed is a neutral third party. It could be maybe the commissioner, but whoever is making the call, the player being accused has the right to have all the facts looked at.

“And the one making the call has to be an objective third party and not someone who is worried at all about team image.”

In talking with the media, Lynch said Foster had been told no repeat of the initial allegations would be tolerated.

“In this case, it was communicated exceptionally clear and to the point as to what we expected out of him,” Lynch said. “It’s more of a comment on him not living up to what we had communicated and to the energy and the time that we’ve invested in him. That doesn’t mean we don’t love him – we all do, we care for him – but we feel like it’s in the best interest of our organization to move on at this point, and that’s a very tough decision.”

Foster hasn’t yet to comment publicly, either personally or through his lawyer.

The very toughness of the decision leads Kay-Phillips to wonder if another NFL club would make the same call? Would the commissioner’s office? Kay-Phillips’ legal study is full of instances when they wouldn’t.

“To that point, giving the player due process, a team can’t do that objectively,” Kay-Phillips says, based on her observations of clubs trying to balance justice and image. “Reuben Foster’s significant other recanted, unsurprisingly. She’s not the first significant other to do that.”
But that has a significant downside, she says.

“It’s important to shine a light. Darkness and secrecy have allowed this kind of thing to survive for so long. Swift and decisive action can be the key to allowing people’s truth come to light. This kind of thing happens in folks’ homes each and every day, and not just in the NFL. If Reuben Foster has to be the face of what not to do, he’s appropriate to be that face.”