Balkinization: The Rulification of Penalty Kicks

The Rulification of Penalty Kicks—and a Reform Proposal

David Pozen

The 2018 soccer World Cup was the first to use Video Assistant Referees (VAR). VAR allows decisions by the head referee involving goals, penalties, direct red cards, and “mistaken identity” to be reviewed, immediately afterward, with the aid of video footage. Not coincidentally, the 2018 World Cup was also the first to feature upward of twenty penalty kicks. At the 2014 tournament in Brazil, a total of thirteen penalty kicks were called, not including shootouts. In Russia, the number was twenty-nine.

The criteria for awarding penalty kicks have not changed. According to the official laws of the game, if a player commits a foul punishable by a direct free kick inside her own penalty area, “[a] penalty kick is awarded.” Each and every time a player inside this zone pushes an opponent, trips an opponent, handles the ball deliberately (unless she is a goalkeeper), and so on, the opposing team gets a penalty kick.

In legal-theory parlance, the criteria for awarding penalty kicks are “rules” rather than “standards.” They are clear and precise—not completely clear or precise, as terms like “trip” and “push” go undefined, but relatively so—and they give little discretion to the referees who enforce them. Other laws of soccer were designed from the outset to be flexible and context-sensitive: for instance, the laws empowering referees to give yellow cards for “reckless challenges” and red cards for “excessive force.” The laws governing penalty kicks are not like that. If one of an enumerated list of behaviors is found to have occurred, a penalty kick follows.

This, at least, is the law on the books. The law in action has long been different. As all soccer devotees know, referees sometimes decline to award penalty kicks in situations where the formal laws suggest they are mandatory. If, say, the collision in the box looks innocuous or inadvertent, or if the fouled player was unlikely to score anyway, or if the incident takes place near the end of a close contest, many referees seem more inclined to let play continue. Informing these judgments are intuitions about soccer justice and an appreciation that in such a low-scoring game, the penalty kick is a draconian sanction—leading to a goal more than two-thirds of the time. It’s roughly comparable to a basketball referee awarding one team fifty foul shots, all in a row.

With their decisions subject to review by a phalanx of off-field “assistants,” however, the referees in Russia no longer felt free to apply their situation sense and to refrain from awarding penalties that may have been technically warranted but seemed unduly harsh, given the circumstances. France’s second goal in the final was arguably a case in point. On a few occasions, video review revealed that an apparent foul had not in fact occurred and led to the reversal of a penalty kick that had been whistled on the field, as with Neymar’s dive against Costa Rica. But overall, by subjecting referees to real-time, panoptical scrutiny, VAR made the policing of penalties more severe as well as more mechanical.

The introduction of VAR thus exposed a gap between the law on the books and the law in action. And the effect was to rulify the adjudication of penalty kicks. Under the gaze of FIFA’s all-seeing thirty-three broadcast cameras, a nuanced standard that had developed over many years without ever being written down—a standard that prioritized the punishment of blatant fouls and denials of goal-scoring opportunities—gave way to a comparatively rigid rulebook that recognizes no distinctions among more and less “penalty-worthy” trips, pushes, or the like. Transparency left less room for subtlety. Codified law swallowed custom.

Is this a good or a bad thing? I am inclined to be negative about this aspect of VAR. (The earlier introduction of goal-line technology, in contrast, did not undermine any customs of refereeing or introduce any delays in play, and strikes me as a boon for the game.) Although penalty kicks may now be called more consistently, they will also be called more frequently and mindlessly. FIFA’s president insists that “VAR is not changing football, it is cleaning football.” Yet we know from other contexts that enforcing longstanding laws more aggressively or literalistically can be a deeply disruptive, if not subversive, act. To “cleanse” soccer of enforcement discretion is to change the sport.

My own instinctual negativity likely reflects some combination of nostalgia, technoskepticism, and aesthetic taste. But the degree to which VAR has divided opinion also reflects, I suspect (loosely in line with Duncan Kennedy’s famous analysis in “Form and Substance in Private Law Adjudication”), different orientations toward rules, standards, expertise, and the rule of law. For those soccer fans who are “rules people” and take clarity, predictability, and impersonality to be the essence of a well-functioning legal system, VAR may seem obviously superior to the opacity and ad hockery of the old regime. For those who place greater trust in the professional judgment of on-field referees and greater emphasis on the avoidance of substantively unfair outcomes, on the other hand, VAR may come across as alienating, crude, even callous.

Perhaps we can bridge some of the space separating these two camps. VAR’s critics must concede that the system has real benefits, particularly in cases where the referee simply could not see what happened on the field while it was happening. To capture these benefits without straightjacketing referees, I wonder whether the laws of the game might themselves be made more standard-like through the use of a new intermediate sanction. For example, they could instruct referees to award ordinary penalty kicks for egregious fouls and fouls that deny a clear goal-scoring opportunity, but indirect kicks or unobstructed direct kicks from eighteen yards out (rather than twelve) for all other fouls in the penalty area.

Any such proposal is bound to be enormously controversial. Whatever their views on its merits, legally and philosophically inclined fans might at least agree that the way VAR has transformed the practice of penalty kicks supplies an interesting case study in the jurisprudence of sport, the instability of rules and standards, and the potential for technological change to disrupt sociolegal norms.

Posted 9:44 AM by David Pozen [link]

Comments:

In the short run I'd expect more PKs to have a big impact. In the long run, I'd expect that defenders will adapt and there will be an equilibrium in which perhaps more goals are scored in the run of play (good!) but fewer PKs are awarded. That strikes me as a big net win for the game.

# posted by

Mark Field : 10:04 AM

I've always lamented that soccer is the "world's game", because it is full of sneaky under-handed behavior and dissimulation - quite unlike hockey, where there are clear enforcement mechanisms (i.e. the fist) for being a sneak. In my humble Canadian view (informed by Brazilian residency), the rulification of penalties is welcome for two reasons: first, it provides for greater accountability in the most crucial area of the field; and second, more penalty shots add greater excitement and more wild-cards to the game. Nice post, David.

# posted by

RG Michener : 10:19 AM

This post is excellent both taken literally and as a metaphor for two worldviews on law.

# posted by

Mista Whiskas : 12:37 PM

Is this similar to the battle between originalism and living constitutionalism? Or just a "fuss of fussball" as the World Cu0 runneth overtime?

# posted by

Shag from Brookline : 7:39 PM

Soccer doesn't "need" more goals, Mark. The game became the most popular on earth without a lot of scoring. The last thing it needs is to Americanize it.

# posted by

Dilan : 11:14 AM

I mostly agree, except to observe that the proper solution to soccer's problem-- that the current foul system results in punishments that are invariably either way too meek (yellow cards, free kicks) or way too harsh (red cards, penalties)-- is staring everyone in the face.

Virtually every other sport that's even vaguely similar (ice AND field hockey, handball, rugby) has implemented a penalty box/"sin bin" system for common fouls. Institute a 5 minute sending-off for common fouls, limit penalties to true denials of goalscoring opportunities and red cards to conduct that would warrant expulsion in other sports, and you've largely solved the problems that led to the perceived need to use VAR to review penalties and cards in the first place.

VAR absolutely has a place in reviewing objective errors-- offsides calls, boundary calls, and of course goal-line calls. For penalties, all you need to do is give the officials (side note: there really should be at least one more referee, as well) the tools to actually officiate.

# posted by

Paul Thomas : 10:29 PM

Growing up in Boston in the 1930s, '40s, I was not aware of soccer. But in the 1970s, early '80s, I became aware of soccer watching our four children play soccer when they were in grade school. I was forearmed with a couple of newspapers and never paid much attention to how the game was played. Later on I became intrigued with the FIFA scandals, but did not get caught up in the World Cup, until this year. This was because Russia was the host and in addition to Russia meddling in the 2016 election, there were issues of possible corruption in Russia's landing the World Cup 2018. I was surprised by the Russian team's wins and was concerned with possible corruption. So I paid attention to the match of Russia with Croatia and cheered strongly when Croatia won with penalty shots, which I didn't quite understand, until this post, as I was never well versed in the rules of soccer. I've got no solutions but came up with a verse inspired by the defeat of the Russian team, with rhyme but perhaps not much reason.

THE FUSS OF FUSSBALL

It would be quite a feat
To switch a soccer defeat
With VAR magical feet
Into a World Cup fete.

By the way, on Monday I saw the PBS American Masters TV show on Ted Williams which reminded me of what I enjoyed in my early days growing up in Boston.

# posted by

Shag from Brookline : 7:15 AM