Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The Rulification of Penalty Kicks—and a Reform Proposal
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
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 othercontexts
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
by David Pozen [link]
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.
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.
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.
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.