Quickly

  • Though he has resigned from the Dolphins, Chris Foerster could still face problems from the video that cost him his job
  • For his part, Foerster might have claims against the person who leaked the footage
  • At the unlikely extreme, Dolphins players could pursue action if Foerster was impaired while coaching them
By Michael McCann
October 09, 2017

A 55-second video of Chris Foerster, who resigned as Miami Dolphins offensive line coach on Monday, snorting a white powdered substance could pose significant legal fallout for Foerster, the Dolphins and the NFL.

The video, which appears to have been taken on a phone, went viral on Sunday. At the time the identity of the man had not yet been confirmed to be Foerster. It begins with a man sitting at a desk. As the camera is poorly positioned on the desk, only the bottom half of the man’s face is apparent. The man then says, “Hey babe. I miss you. I’m thinking about you. How about me going to a meeting and doing this before I go.” At that point, the man takes a rolled up $20 bill to snort the white substance off of the table. As his entire face hovers above the table while snorting, his facial features become more detectable. Later in the video, the man repeatedly insists that he “misses” the person whom he intended to send the video.

The video was posted Sunday evening on the Facebook account of Kijuana Nige, who describes herself as a self-employed “professional tease.” Nige’s post identifies the man as “Christopher Foerster Miami Dolphins offensive line coach.” As part of the post, Nige asks the man, “Hey honey are you still high?” In a subsequent Facebook post, Nige asserted that man “recorded himself and sent it to me professing his love.”

The man on the video is now confirmed to be Foerster. In a statement released Monday morning, Forester announced his resignation as the offensive line coach. Although Forester’s statement does not explicitly confirm that he is in the video, it stresses that he takes “full responsibility” for his “actions.” Forester also expresses hope that he will gain help from “medical professionals.” For its part, the Dolphins released an accompanying statement which explicitly references the video and also expresses the team has “no tolerance” for “this behavior.”

NFL
Chris Foerster Is a Football Lifer. Does He Have a Football Future?

Although the date of the video remains unknown, it appears to be recent. According to Armando Salguero of the Miami Herald, a team source confirmed to him that the desk shown in the video matches the kind of desk used in Dolphins offices.

While Foerster is in the video, it has not yet been established that the snorted substance is cocaine, another drug (such as Adderall pills broken up) or, less plausibly at this point, a legal substance (such as powdered lactose or Vitamin B powder) made to visually appear as cocaine. Further, whether Nige obtained the video in the manner in which she claims on Facebook has not been substantiated.

Foerster, 55, has coached for eight NFL teams and three college teams during his 35-year coaching career. He has coached the Dolphins twice, first in 2004 and most recently over the last two seasons. If the video proves to be true, Foerster’s coaching career might be over. As explained below, that is only one of several potential consequences.

Criminal and contract fallout for Foerster if the video is of him snorting cocaine or another illegal drug

If the video shows Foerster snorting cocaine, the most troubling worry for him would be the possibility of facing criminal charges. Law enforcement could regard the video as admission by Foerster that he snorted cocaine.

Under Florida law, possession of less than 28 grams of cocaine is a third-degree felony. A conviction on such a charge would carry up to a five-year prison sentence. Possession of 28 grams or more of cocaine would trigger trafficking charges and more lengthy potential prison sentences. The relevant statute of limitations for such charges ranges from three to four years—so within the time period in which Foerster has coached the Dolphins for the second time in his career but outside the first time (2004).

Whether law enforcement could prove, beyond a reasonable doubt, that Foerster snorted cocaine based on the video alone is another story. Foerster might confirm that he is on the video but insist that the substance is Adderall or some other prescription drug. Along those lines, Foerster might explain that he has a prescription for Adderall and though he knows he should not snort it (it is usually illegal to misuse a drug for a non-intended use), he was nonetheless in lawful possession of the drug. Potentially helping Foerster on that front, it does not appear that he has any kind of record of drug charges.

Even if Foerster is not charged with a crime, he could easily face a league-issued suspension. While he has accepted responsibility and now asks for medical help, the video nonetheless embarrasses Foerster and, by extension, the NFL, whose executives are no doubt wondering why Foerster would record himself using what appears to be an illegal drug. Even if the snorted substance is not cocaine, it would still display poor judgment on Foerster’s part.

If Foerster had not resigned, the Dolphins could have fired him. While his employment contract is not a public record, NFL coaches’ contracts normally contain language that says, in so many words, if the coach is implicated in criminal or immoral conduct, the team can terminate the contract “for cause,” meaning due to a material breach in his employment contract.

There is precedent for the NFL suspending a coach over drugs. Ten years ago the NFL suspended Dallas Cowboys quarterbacks coach Wade Wilson for buying and using a performance-enhancing substance. At the time Wilson explained that he obtained the substance to help him manage his diabetes. It would be hard to envision Foerster offering a medical excuse for using cocaine, which is prohibited by the federal Controlled Drugs and Substances Act. That said, Foerster admits he needs the help of medical professionals. Rather than punish him, the NFL might simply direct him to needed help.

Potential legal fallout for the Dolphins and NFL if a coach is performing his job functions while impaired

If Foerster has abused cocaine, Adderall or other drugs while on the job, it would present a health and safety issue for the league and NFLPA.

According to the National Institute on Drug Abuse, persons who use cocaine can experience a wide-range of feelings, including paranoia. Such persons also more prone to engage in “bizarre, unpredictable and violent behavior.” These feelings can from a few minutes to as long as an hour.

Abuse of Adderall and other amphetamines can lead to similar problems: The National Institute on Drug Abuse says “repeated abuse of stimulants can lead to feelings of hostility and paranoia.” Adderall symptoms can last for several hours.

As a position coach, Foerster had a duty to properly train Dolphins offensive linemen and to instruct them in accordance with league and team safety rules. The play of the line, of course, impacts not only the linemen’s safety but also the safety of the quarterback and running back. An offensive line coach suffering from impaired judgment could be more prone to subjecting his players to unsafe work conditions.

As of this time, there is no publicly known evidence that any Dolphins players were harmed due to Foerster’s apparent condition. If, however, it becomes established that Foerster was drug-impaired while on the job, expect the NFLPA to weigh in on the matter. The union could demand an investigation into how such a coach could be employed by an NFL team. An investigation along those lines might reveal if Dolphins players felt that Foerster acted strangely and if players relayed those concerns to higher-ranking coaches, such as offensive coordinator Clyde Christensen or head coach Adam Gase, or to a front-office staff member. Such an investigation would also shed light on whether Foerster complied with established protocols or if he exposed players to excessive risk. To that end, the incidence and types of player injuries suffered under Foerster’s watch would be of interest.

Although unlikely for a variety of reasons, if Dolphins players believe that working in an environment where a coach is high on drugs has harmed them, they could consider filing a negligence lawsuit against the team. Such a lawsuit would not be unprecedented. Earlier this year the Tampa Bay Buccaneers reached in a settlement in a $20 million lawsuit brought by former placekicker Lawrence Tynes. He argued that he contracted a Methicillin-resistant Staphylococcus Aureus (“MRSA”) infection from the Buccaneers’ training facility due to negligence on the part of the team.

NFL
Lawrence Tynes’ Nightmare

Note that Tynes’ injury was specific and traceable to a unique incident—contracting MRSA. The circumstances would be murkier for a Dolphins player who claims that Foerster’s alleged impairment caused the player to suffer an injury. A Dolphins player would need to establish that he suffered a specific injury, such as a concussion, due to specific unsafe working conditions. Given that so many factors go into every play on an NFL field, it would be conceptually difficult for a player to prove that a coach’s impaired judgment caused his injury.

In addition to a lawsuit, a player could file a complaint with the Occupational Safety and Health Agency (OSHA). OSHA is a federal agency charged with ensuring that employers provide their employees with a place of employment “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” An OSHA complaint could lead to an investigation and potential fines.

Regardless of how the Foerster matter is resolved, it stands to reason that NFL players and their union may openly question why players, but not coaches, are subject to a formalized league-wide drug testing policy. Whether NFL coaches are drug-tested is determined by employment contract and team policy. All NFL players, in contrast, are subject to drug testing through collectively bargained procedures—procedures that some describe as excessively punitive and that have, for example, contributed to Cleveland Browns wide receiver Josh Gordon being suspended for 50 (and counting) regular-season games, out of the 85 he could have appeared in since 2012.

Foerster’s potential redress over disclosure of his video, possible hacking and extortion

While Foerster may be in the wrong, that doesn’t mean he lacks potential legal claims against others.

For starters, Foerster could consider an invasion of privacy claim, which in certain situations protects against public disclosure of private facts. One would think that he did not intend for the video to be shared with the public, not only because he appears to be snorting cocaine in the video but also because he seems infatuated with the person—“babe”—to whom he intended to send the video. It is clearly a private moment.

Further, Foerster could explore a possible claim for intentional infliction of emotional distress. He could argue that public disclosure of an intimate video constituted extreme and outrageous conduct and has caused him severe emotional harm. As for additional claims, Foerster might reason that disclosure of the video has portrayed him in a false light—assuming, of course, the substance is a legal powder and not cocaine—and has interfered with his contractual relationship with the Dolphins, who might soon suspend or fire him.

NFL
10 Things I Think I Think: On Chris Foerster, Leonard Fournette, Tom Brady, More

While these are theoretically plausible claims, it’s fair to say that Foerster should have known better. If you take a video and email it or post it on social media, you know there is no way to guarantee its privacy. This is the year 2017, not 1997. Any potential invasion of privacy claim or related claim would be weighed against common sense.

Foerster should also be aware that while he is not necessarily well known in public, he is a coach for an NFL team and thus is, to some extent, a public figure. Privacy rights for public figures sometimes enjoy diminished protection under the law.

As a final point, we do not yet know how the video came into the possession of Nige. While there is a logical inference that Foerster emailed or texted it to her, the apparent relationship between Nige and Foerster has not been confirmed. Along those lines, it is possible that the file was intended for someone else and left Foerster’s possession without his consent. In that circumstance, the federal Computer Fraud and Abuse Act would become a relevant law. The CFAA makes it a crime to gain unlawful access into other person’s computer and data. Further, if Foerster was told to pay a certain amount of money or the video would become public, he would be the victim of extortion, which is also a crime.

The MMQB will keep you updated on any developments.

Michael McCann is SI’s legal analyst. He is also an attorney and the Associate Dean for Academic Affairs at the University of New Hampshire School of Law, and co-author with Ed O'Bannon of the forthcoming book Court Justice: The Inside Story of My Battle Against the NCAA and My Life in Basketball.

You May Like