Are the NFL’s instant replay rules good for society?
TNR‘s Josh Patashnik has a post on a debate in the legal blogosphere over the NFL’s instant replay rules. According to these rules, a call on the field can be overturned only if the instant replay shows “conclusive” or “indisputable” evidence contrary to the call on the field. If not, the original ruling stands.
Those in the legal profession may find this puzzling given the legal principle of trial de novo – literally “new trial”. When a trial is contested on procedural grounds (say, if a judge did not allow all the facts to be presented), an appellate court will generally order a new trial. This trial de novo is not bound by any of the findings of the original trial so as to prevent bias. The ruling of this new trial is what matters, regardless of the outcome of the original trial.
But in the football equivalent, this new trial can only overturn the original trial if the evidence is conclusive. To a lawyer – and to most others, I suspect – this doesn’t make much sense. As Patashnik asks, “why not have plays reviewed (to use legal terminology) de novo, with the call changed to whatever the video suggests is most likely the correct result, even if it’s not indisputable?”
His argument seems about right. But Patashnik goes on to offer a theory of why the current rules may be better than a de novo reform:
There’s a sort of utilitarian reason these calls shouldn’t be overturned on the basis of de novo review. Suppose a very close call goes against your team on the field, is challenged, and is upheld because the evidence is inconclusive, even if you think you have a slightly better claim. That’s annoying, but you can chalk it up to the ordinary difficulties of making close calls–something all sports fans are used to having to deal with–and at least you don’t feel like you got totally ripped off. Plus, your expectations going into the review were tempered, since the call went against you on the field.
But suppose instead a very close call goes for your team on the field, is challenged, and is overturned even though the video evidence is inconclusive. That outcome, I think, would cause most fans significantly more anguish than the first scenario described above. In part, this is because of settled expectations–once the call goes for you on the field, you begin to internalize the outcome, and the loss of that benefit exceeds in magnitude the gain in utility you would get by having a marginal call reversed to go in your favor. But perhaps more important, by reversing the outcome, it draws attention to the arbitrariness of the call in the first place. If, after such thorough examination, the call is reversed to go against you even though it’s not clear that’s the right outcome, you feel cheated in a new way: the exhaustive legal process has affirmatively placed its seal of approval on the arbitrariness. That’s something unique, and something most sports fans aren’t used to dealing with: the process–not just the outcome–feels unfair in a way it didn’t before.
Football does well when it successfully masks the arbitrariness of calls. When these calls are made, as they inevitably must be, it’s best just to let sleeping dogs lie, grumble, and move on with the game. By attempting to achieve a standard of refereeing perfection that isn’t attainable given the nature of the game and the nature of instant replay, the main effect is to heighten the salience of that arbitrariness, in a way that detracts from the confidence football fans have that the game, in the end, is a fair one.
So a de novo rule would be more just, but the current rules are better for society. It’s a utilitarian vs. deontological conundrum. I vote we settle this on the gridiron.
-Marc
Photo by Flickr user Mr. Usaji used under a Creative Commons Attribution license.
Related posts:
- (Not a) goalllllllll!!!!!!
- The open society and its enemies
- Guest post: Majority rules?
- Rookie rules
- Cash for Morality
ShareComments
5 Responses to “Are the NFL’s instant replay rules good for society?”
Leave a Reply
I guess I don’t understand why instant replay is being compared to de novo review. De novo review on appeal is exercised when reviewing a decision made by a lower court as a matter of law. It is not used when reviewing a lower court’s finding of fact; a variety of lesser standards (e.g., “clear error”) are used in that situation. And, the instant replay rules clearly parallel the latter set of standards, which is sensible since it parallels that form of appellate review. Instant replay is used to determine whether some FACT was missed, not whether a RULE was misinterpreted or misapplied (there is no effective appellate process for that; officials who mis-apply the rules are marked down by the league or suspended for truly egregious circumstances). Consequently, it is eminently reasonable to have the rules of video review parallel those the legal system uses for review of a trial court’s factual determinations.
I am honestly pretty shocked that this is being advocated by a law professor of all people. I’d think they’d know better.
Adam makes a good point, though I think the analogy to appellate review in general is a little strained. Appellate courts, except in the rare circumstances Adam mentions, don’t question trial courts’ findings of facts. They review whether the legal principles have been applied correctly to the facts that the trial court revealed. The reason their factual inquiry is limited is because the jury, which operates at the trial level alone, is the finder of fact. A jury of our peers, as opposed to a cranky, old judge, is considered a good, less biased finder of fact. Add to this that there has to be some end to judicial process, such that people can’t have trial after full-blown trial if they don’t like the result. So, appellate review only changes the result for egregious factual errors or certain legal errors, with these limitations created out of respect for juries and a need for the legal process to end at some point, providing definitive conclusions.
Now the analogy to football referees is strained because the factual inquiry in the football appeal process (the instant replay) is superior to the inquiry in the football trial process (the call on the field). Wheras in the courts, the factual review is considered superior from the trial court, since that is where the juries reside. So, that is reason for the referrees to have full de novo review during replays; they are better judges of fact when everything is slowed down and magnified. Alas, if they did this for every play, football would suffer. The game would be interminable. This mirrors the need for the courts to provide a definitive answer at some point; appeals cannot go on forever. But this is not a reason against de novo replay review; this problem is solved through the limited number of challenges available to coaches.
I tend to disagree with the assumption that video review is better than the official’s view of things at live speed. I am reminded of this: http://www.newyorker.com/reporting/2009/07/27/090727fa_fact_gladwell?currentPage=all
Sometimes the video replay will be better and sometimes it will be worse; given that, it seems entirely reasonable to defer to the official’s judgment “in the moment,” at game speed, unless it is a particularly egregious, objectively wrong error.
The other thing to consider is the decision-maker. Calls on the field are generally the responsibility for certain members of the crew (the “covering official”). But the crew chief does the instant replay review in the NFL, and in college, it isn’t a member of the crew at all, but the video replay official in the press box. De novo review substitutes the evaluation of one official for that of another one. Again, this seems reasonable in circumstances where there is clear, objective error (such as in the spot of a ball), but not so in subjective places (was it holding or not?).
Whoops, wrong article; just copied it out of my browser history without checking it first. This is the one I was thinking of:
http://www.newyorker.com/archive/2004/12/13/041213fa_fact?currentPage=all
All this legalese is an exercise in futlity and basically a mute point, running on a treadmill and going nowhere.
The official on the field 90-percent or more of the time has the better angle to view the play. Video is limited in this capacity. The on-field official was right there when it happened.
Ergo, the on-field official’s call takes precedence and always and forever should, unless you have a million cameras blanketing the field, including from under the field like World Series of Poker contests, in addition to a camera on the football and on all the players and officials from every conceivable angle.
This “debate” is no debate at all.