Touchdowns, Safeties, and the Jurisprudence of Fouls

Guest Blogger

For the Symposium on Mitchell N. Berman and Richard D. Friedman, The Jurisprudence of Sport: Sports and Games as Legal Systems (West Publishing 2021).

Yuval Abrams

First, I'd like to thank Jack Balkin and my co-participants for putting together this symposium. I'd also like to thank and congratulate Mitch Berman and Richard Friedman for writing such a terrific book. The volume would make for an outstanding classroom textbook, both for law students and to introduce advanced undergraduates to the fundamentals of legal theory.

In this note, I focus on the discussion of penalties (see chapter 6) and briefly discuss three questions and their relation:

1.      Are penalties and fouls more like crimes or like torts?

2.      The appropriateness of counterfactual reasoning in assessing a penalty and its remedies. In particular, is awarding points based on the judgment that, but for the penalty, the wronged player or team would have scored, appropriate?

3.      Finally, why is there a difference between touchdowns and safeties as a result of a penalty (and what does this show about causation)?

Fouls and Penalties (crimes or torts?)

How should we think about the rules and regulations in sports? More specifically, what sort of wrongdoing (see the discussion of the price/sanction distinction in chapter 6) is involved in breaking these rules, and how do we understand the meaning of redress: more akin to private law (e.g. torts) or to public law (e.g. crimes)? Are penalties aiming at corrective justice, undoing or compensating the harm imposed, or as sanctions, with punitive, deterrence-seeking, or even communicative norms? When team A commits a foul, is it a foul against team B or against the league? When is the penalty better understood as a means to restore B's position to what it would have been but-for foul? For example, is a 10-yard penalty in football making up a disadvantage to the other team, without which it would remain worse off (by, e.g. compensating for loss and disgorging illicit gains)?

While there are some rules and sanctions that are clearly of a more public-law nature (e.g. rules against insulting a referee), in sports, due to their inherently competitive nature, the private/public law distinction is a difficult one to draw.

The rules cannot be purely public, because of the adversarial, zero-sum nature of the enterprise. Over-sanctioning a wrong unfairly benefits the other team; discretionary enforcement, or looking the other way, unfairly allows the infraction to stand, harming the other team. Compensatory norms are obviously relevant.  

On the other hand, they cannot be viewed purely as private law either. First, there are duties of integrity to the game, to the league, and to the fans. Furthermore, the norms are 'public' in that participants may not contract into or around obligations on the field (although penalties can sometimes be waived or declined).

The rights that the rules vindicate are not quite like the ordinary rights and interests in private interactions. An athletic contest is not a dispute for possession of a medal. If I am awarded the medal without having achieved a result that warrants that medal, the point is defeated. Awarding the medal as a remedy (as if it were possession of property or performance of the contract) is not compensation. In other words, the winning team must earn its victory. We can view this as a principle, if not as a rule. A better way to put this, perhaps, is that there is something defective in victory awarded as a matter of penalty or compensation. Admittedly, sometimes this happens, most extremely when a match is forfeited, but this is clearly seen as undesirable.

Counterfactual reasoning (and counterfactual scoring)

A feature of private law that is rare in sports, is counterfactual reasoning of the sort required to fully compensate, in determining the extent of liability and the remedy. If the purpose of penalties in sports were corrective, they would naturally aim to restore the other team to where they would be but-for the penalty. But though there are many instances of counterfactual reasoning in determining whether a foul was committed (instances of 'no harm no foul', cf. pp. 201-208), rarely do officials engage in the sort of speculative counterfactual reasoning to determine the likely outcome of the play absent the foul, especially if determining this outcome involves subsequent actions by other players. If, e.g., holding is called, the play is stopped and the penalty is yards. There is no attempt to figure out where the runner would have gone absent the hold, and almost never are actual points awarded based on such speculation (an interesting possible exception to this is the penalty try in rugby). We don't engage in the sort of speculation found in negligence cases, where it is unclear if the defendant's negligence mattered to the result, e.g. cases of failure to warn v. failure to read. If penalties were compensatory, we should. When a defender fouls a weak player taking a difficult shot, the question of whether the foul made a difference would seem relevant (see the interesting discussion of epistemic deference on p. 411). That it is not, suggests that corrective justice is not quite the objective. This, again, seems right, if we think of victory as more valuable when earned than merely awarded. Scoring the points required to win the game is something that should be accomplished, rather than a right to be protected from infringement.

What is the difference between touchdowns and safeties as the result of a penalty?

This brings me to the discussion (on pp. 204-205) on an interesting difference between offensive and defensive fouls in the National Football League. Defensive pass interference (PI) incurs a spot foul, resulting in a first down at the point on the field where the interference occurred. If the interference occurred in the end-zone, however, the ball is placed at the one yard-line, rather than awarding the offense an automatic touchdown. This is consistent with the principle that points are earned, not awarded (similarly, other yardage penalties, when they take place close to the end zone, result in ball half the distance to the goal, rather than as an automatic touchdown). On the other hand, when the offense commits a foul in its own end-zone, the result is a safety, i.e. resulting in two points to opposing team. Does this violate the principle that points are earned rather than awarded? Furthermore, are these two rules, governing fouls in respective end-zones, mutually consistent?

Thinking this through is an interesting exercise. If we thought about the nature of the wrong (holding, PI, etc.) as a private law style wrong, which deprived the opposing team of something it was entitled to, and the remedy for which would be compensation, we should aim to put the opposing team where they would be but-for the wrong. Thus, in PI, the question is whether there would have been a reception (in this case, a touch-down) but for the foul. In offensive holding, would the offensive player have been tackled (in this case, in the end-zone), but for the hold? The two cases, in this sense seem symmetrical, but the remedies are not.

Perhaps these cases should be thought of purely as sanctions. In each case, there is an infraction, which results in a penalty: a first down in the case of PI, a safety in the case of holding in the end-zone. This too would leave the discrepancy unexplained (why award a safety but not a touchdown?). We could stipulate that only safeties, and not touchdowns, are awarded as penalties, but, without saying more, this would be ad hoc.

I think it would be an error, to think of the safety itself as the sanction. The sanction is the loss of yardage (with nowhere to go). The safety just follows from this.

Penalties are a hybrid of private law and public law norms: sanctions but constrained by the competitive nature of the enterprise. The sanction does not put the other team where they would have been but-for the infraction. Rather it seeks to penalize the infraction, undoing whatever competitive gains were obtained by it. Importantly, this differs from undoing a lost opportunity or score. The simplest type of undone gain is when points are scored as the result of a penalty. In such a case, the points are lost. But when the team that fouls prevents the other team from scoring, the gain that is undone cannot be to award those points to the team fouled against. Those points need to be earned.

The difference between safeties and touchdowns in this respect is not that one is awarded as a sanction. Rather, it is that safeties by their very nature are not necessarily earned in the first place. A safety, unlike a touchdown, can occur by default. Some safeties are earned, like touchdowns (e.g. when the defense tackles the offensive player in the end-zone), but a safety could also result from an error on the part of the offense. The NFL rules read: "It is a safety… when an impetus by a team sends the ball behind its own goal line, and the ball is dead in the end zone in its possession or the ball is out of bounds behind the goal line". This can result without the defense's doing anything to earn it. The difference is a causal one of action v. omission. This is a feature of safeties in general, rather than of safeties resulting from penalties in particular.

Why does this matter? Because, unlike a touchdown, a safety can be the automatic result of other circumstances. In other words, a safety just happens when the ball is dead in the end zone. The safety is not the sanction. The sanction is the placement of the ball, in this case, behind the goal line, which, ipso facto, results in a safety. No counterfactual reasoning is required. No action or causing by the defense is required to earn the safety. That's just what safeties are. Touchdowns, on the other hand, require an action or a doing, an achievement or success, on the part of the offense. These differing causal principles put the two situations in very different lights: a touchdown requires a causal event, whereas the safety just reflects what happens when the offense fails to clear the end-zone. No counterfactual and no sanction can substitute for that first achievement. Hence the asymmetry.

What is operating here is the act/omission distinction, which frequently governs the application of causal principles in the law. This distinction, incidentally, might also explain other interesting puzzles in the book, such as default rules (p. 368) and so-called omission bias (pp. 398, 403-404), which I cannot do justice to in this note.

Lessons

In order to apply the lessons of jurisprudence to penalties (and in order to learn from them) we should pay closer attention to the sorts of norms that penalties are. The same goes for the rules of officiating. Penalties don't seem like ordinary tort-like rules because they don't primarily function as compensatory. On the other hand, they are not entirely punitive or public either, because of the adversarial nature of their material. How we think of penalties should govern the extent to which we engage in counterfactual reasoning, especially in order to achieve the goals of the sanctions. And attention to sound causal principles can make better sense of these as well.

For what it's worth, it might make sense to look to procedural law, rather than torts or criminal law, for fouls and penalties, as a better model of how to govern an inherently adversarial context. I think that the discussion of stands/confirmed (pp. 443-446) makes better sense in that light as well: more like the standards of appellate review rather than a jury trial.

None of which is to detract from the main point, which is that this book is full of rich and interesting discussion with terrific examples. It is an impressive achievement.

Yuval Abrams is Visiting NEH Chair in Humanities and Assistant Professor of Philosophy at Albright College in Reading, PA. He can be reached at ymabrams@gmail.com