For the Symposium on Mitchell N. Berman and Richard D. Friedman, The Jurisprudence of Sport: Sports and Games as Legal Systems (West Publishing 2021).
Jodi S. Balsam
In their innovative book, Berman and Friedman investigate sports and games as legal systems, with one aim to draw lessons for statist legal systems. As a former in-house lawyer for the National Football League, whose role included managing the appeals process for league discipline imposed for game day rule-breaking, I was most fascinated by the discussion of the gamewright’s goals and constraints (Chapter 3), and what legislators can learn from the sports rulemaking, rule-changing, and enforcement process. I had a seat at that table while I was at the NFL, and offer an insider’s view as to how the goals and constraints are measured and horse-traded in practice.
Most striking from a jurisprudential perspective, and perhaps offering a lesson for other sports as well as legislatures, is the NFL’s willingness and effort to perennially revisit and revise its rules to achieve their underlying purpose: ensuring the fairness, safety, and entertainment value of its football games. NFL rules are theory-driven to maximize competitive equity, authenticity, and drama. NFL gamewrights acknowledge that rules need to be as simple as possible while offering enough detail and specificity to be enforceable with consistency across officiating teams. The rules need to balance the opportunities for great offensive and defensive plays while generating enough scoring to hook the audience, especially in the last two minutes of each half. The rules need to protect player health and safety while enabling feats of athletic excellence. On an annual basis, the NFL returns to these first principles and reconsiders its rule book.
While legislatures and regulatory agencies make periodic attempts to evaluate and reconsider the effectiveness of their enactments and enforcement efforts, it is rarely with the intensity and magnitude of the NFL’s process. Imagine a world where every law is regularly scrutinized to determine if it is serving its purpose, or whether instead it has become obsolete, resulted in counteractive cost and complexity, or generated unintended consequences. Imagine lawmakers open to ideas generated by any source or circumstance—or even by new technology—as long as the changes will offer improvement. That is the attitude and approach taken by the NFL and its Competition Committee, which serves as the league’s gamewright for all competitive aspects of the game. (The Competition Committee typically comprises nine or ten members, a mix of head coaches and club senior executives.)
NFL Competition
Committee Approach to Rulemaking—Deferring to Data
The NFL rulemaking and rule-changing process is systematic and consensus-oriented, relying heavily on data accumulated from reviewing every NFL season at the macro and micro level. At a season’s conclusion, the Competition Committee examines the average outcome of NFL games across many metrics, including total number of plays from scrimmage, total number of minutes the ball is in play, total time elapsed from the start to the end of the game, total points scored, total number of penalties, total number of specific categories of plays, and which types of plays generated the most yards and scoring. Ideally, the average game will clock in at less than 3:05, involve approximately 155 plays from scrimmage, and generate 14-15 minutes when the ball is in play measured from the snap to a ball whistled dead.
When the end-of-season averages deviate significantly from these targets, the Competition Committee will revisit everything from clock rules to penalty definitions to officiating performance. So, for example, as overall game time began to creep up with the introduction of instant replay, the Competition Committee shortened from 45 to 40 seconds the play clock that keeps track of time between downs, and added a dedicated instant replay booth official to speed up reviews. To avoid unduly pressuring the offense and compromising the number of total plays, the Committee introduced the coach-to-quarterback headset radio that facilitates play calling.
A regular season that falls within the numerical sweet spots above will generate roughly 39,000 plays from scrimmage. On the micro level, the NFL Officiating Department reviews every one of these plays to grade officiating performance and identify player infractions for potential fines and other discipline. As exciting as the games themselves are, I was just as captivated on Monday mornings when I watched over the shoulders of the retired game officials working for the Officiating Department as each played back video of one of the weekend’s games. They examine every single play from scrimmage for how each of the seven members of the on-field crew performed their functions, as a matter of officiating mechanics as well as correctness. Crew members are graded on calls and non-calls, and these grades later determine, among other things, which game officials land highly-coveted post-season officiating assignments. Another objective of this effort is player accountability, and regardless of whether an infraction is flagged during the game or identified during Monday video reviews, players are subject to fines for conduct that violates safety-related rules, such as unnecessary roughness, chop blocks, and head hits.
In annual post-season sessions, the Competition Committee digests all these data, watches hours of film, and gets to work on the next iteration of the rules. All rule proposals are presented to the owners at the NFL’s Annual Meeting in March, and adoption requires a vote of three-quarters of the 32 owners. The evolution of kickoff rules shows the process at work. Between 1974 and 2011, the NFL moved the kickoff line three times. It moved from the 40-yard line to the 35 yard-line in 1974 to produce more exciting returns. As return rates continued to drop, the kick moved to the 30-yard line in 1994. By the 2000s, with kickoff-play injuries on the rise, the Committee scrutinized videotape to determine the cause and found one source to be “wedges” of three or more blockers for the return man. In 2009, the owners approved a Committee proposal to ban this formation on kickoffs. Then in 2011, as concern about concussions came to the forefront, kickoff returns were identified as one culprit, and so the kicking line moved back to the 35-yard line. In the aftermath of any rule change, the NFL reviews its impact using statistics, video, and input from teams, players and medical advisers to make sure it is having the desired effect. When in doubt about a rule change, the NFL will test it during the preseason.
One rules adaptation on the horizon for NFL football will address wearable, ingestible, and implantable technology that generates athlete biometric and performance data. For example, football helmets with mouthguard sensors are now collecting head kinematic data—like how fast and in what direction a player's head moves within a helmet. This will help the league to collect information about the duration and direction of head impacts players experience based on their positions, both during practices and games. Calibrating this risk through technology will inform future rulemaking that may well change the range of permissible contact during games.
Member Club Rules Proposals—Avoiding Regulatory Capture
The Competition Committee also invites rules proposals from the member clubs, and that process offers insights into how to avoid regulatory capture. Club proposals for a formal rule change usually arise when a club does not like the resolution of a play during the season, typically having to do with penalty enforcement (or lack thereof). The club wants to change the rule so the outcome of the play would have gone their way. The Competition Committee reviews every such proposal, offers amendments, and makes a recommendation to the member clubs, who again require a three-quarters vote to adopt or change a rule.
The problem with play-specific rules proposed by clubs, however, is that they are not supported by any particular theory of the game, but are an effort by one club to achieve some form of post-season vindication. Exhibit A: the New Orleans Saints pushed for a rule change after a missed pass interference call in the 2019 NFC Championship Game seemingly cost the team a chance to reach the Super Bowl. Sympathetic fellow owners voted in a one-year experiment to allow instant replay of pass interference calls. But implementation was trickier than anticipated for this highly subjective penalty, and the new rule was not renewed after its single season in effect. Although ultimately deemed a misstep, the process of this rule’s adoption and rescission is notable for its total transparency and caution. Everyone was aware of who sponsored the rule change and why, exposing the self-interested motivation. Data on the rule’s enforcement and effectiveness were carefully aggregated and analyzed. And the framers built in a sunset provision that avoided a fraught process to repeal it and an ego-deflating public about-face for the owners who had supported the new rule.
Lessons for Statist Legal Systems
Above all, in my experience, NFL gamewrights approach rulemaking with humility. They know there is no such thing as a rulebook that produces justice after every play every season. With due respect to the grand traditions and honored customs of the game, the bottom line is fan engagement and a stadium and broadcast product that will pay all the salaries. While it is essential to orient the rulebook around a theory and a set of objectives, rules must be measured against the data and adapt when circumstances demand. The NFL, more so than the other major U.S. professional sports leagues, adheres to this framework because the sport itself is more complex and strategic. Football players are more specialized and co-dependent than in other sports, and the game dynamics require a high level of coordination. That complexity demands greater attention to rulemaking and rule-changing.
In the spirit of Berman and Friedman’s notion that statist legal
systems might draw “occasional lessons” from sports, I sum up with some lessons
a legislature or regulatory agency might draw from NFL rulemaking care and
flexibility:
·
Craft rules that provide enforcers with as much specificity as necessary
to promote consistency and fairness, and to curtail subjectivity and abuse of discretion.
·
Attach to every rule proposal a list of entities and interest
groups that lobbied for it.
·
Use pilot programs in a confined geographic area to test new rules
of uncertain viability.
·
Require cost-benefit studies of the impact of new rules, with
benchmarks that, if unmet, result in rescission.
·
Use sunset provisions to encourage rules experimentation, but also
to facilitate rules retirement.
Of course, there are vast differences between rulemaking in
football and regulating a complex modern economy. And legislators in many
jurisdictions have experimented with versions of the above methods. Yet, NFL
gamewrights’ success in deploying these methods to sustain the popularity of
the sport may illuminate for legislatures how to design rule-based systems that
produce the happiest outcomes.
Jodi S. Balsam is Professor of Clinical Law and Director of Externship Programs at Brooklyn Law School. You can reach her by e-mail at jodi.balsam@brooklaw.edu.