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Thursday, July 10, 2014

Policing Sports: Basketball Referees are Lawless, and Soccer Referees are Lawful

Two of my interests are association football ("soccer") and policing. And I think the former provides some interesting insights into the latter. Soccer, and games in general, encapsulates relatively simple and law-like system of rules. Games are all the more law-like when enforced by referees and umpires. For the most part, the tradition when legal folks talk about umpires is to treat them as judges. I think that is—if not a mistake—then a little simplistic. The role of umpires and referees can be a little tricky, and somewhat culturally specific.

To illustrate the point, consider a phenomenon identified by Mitchell Berman as "temporal variance" in refereeing. The idea of temporal variance is a simple one: "at least some rules of some sports should be enforced less strictly toward the end of close matches." The justification is that "in the final moments, games should be won or lost by the players and not the officials.” The basic idea is that, at the moments when games are most likely to be decided, referees should "just let 'em play" and not insert themselves into the contest.

If you've been following the World Cup, you'll know that (even though valid) "just let 'em play," when stated as a rule of good refereeing practice, is a peculiarly American viewpoint. Both the Ivory Coast and Mexico were eliminated on last-minute penalties, ones that were pretty soft. The effect of enforcing the rules (assuming both penalties were at rightly awarded) was decisive. But, I'm about to argue, in awarding the penalties, the referees were acting more-or-less like judges; in turning a blind eye to these types of infraction, basketball umpires act more-or-less like police (or prosecutors). What's worse, they act like lawless police or prosecutors. What's worst of all, lawyers and judges often encourage the police to take a lawless attitude towards the law.

I should state up front that I'm not interested in the ins and outs of temporal variance. I'm interested in the fact that the referees have generated a set of background rules that regulate when to engage in temporal variance. These background rules are not part of the rules of the game. The are part of the unstated code of officiating. Is it legitimate for the referees to rely on this unstated code?

Two types of norms determine how we play a game. The most fundamental are the norms that constitute the game: what the players do, how points are scored, how we win or lose. These "practice rules" are the official rules promulgated by some governing body (even if they are just the rules that come in the box with the game). The rules of soccer tell us the size of the pitch, the number of players, and that players amass points by scoring goals.

Then there are the background rules of strategy that dictate what counts as good play. These background rules are not part of the official rules of play. Instead, they form a code of strategy or good conduct that tell players what to do in order to play the game **well**. They operate in concert with the rules, to fill gaps left open by the rules. Boxing out players under the basket or in the six-yard box; or making sure the goalkeeper does not stray too far from the goal-line when the opposition could lob the ball over her fall into this strategy/conduct category.

Referees can also generate background rules of good refereeing, just as players generate rules of good play. So basketball referees appear to have a shared code of conduct: in the last seconds of the game, there are certain contact-driven fouls they will not call.

The background norms of good play or good officiating are relatively autonomous. They are not part of the official rules of the game, and do not become part of the official rules of the game, because the players or officials who generating the rules are not a proper rule-promulgating source. These background rules might bind other officials. But they do so not through the law (not through the NBA, or through FIFA or IFAB, the body that generates the rules of soccer) but through some extra-legal institution, such as the referees union or some such group.

At least in the context of the "let 'em play" type of background rule, there is a crucial difference between the referees' code of conduct and the players'. It's this: there is no express rule of the game that permits the referees to engage in non-enforcement; nor is there some gap through which their background standards of good officiate operate to permit non-enforcement. The referees are not using these background standards of officiating to interpret the official rules or specify how they apply: they are using their code of officiating conduct to supplant and replace the express rules of basketball.

In generating non-official but binding rules of conduct, the referees operate like an executive, administrative body. They operate like cops. Cops like other administrative officials, can generate a relatively homogenous background set of rules of officiating strategy, that is, rules about how to apply the rules. Some of these rules are developed thanks to an express grant of rule-making discretion from some other body. And some are not. "Let 'em play" falls into the "some are not" category.

Judges also generate these types of rules. The judicial equivalent of "let 'em play" are the sorts of managerial rules that, e.g., promote the settlement process pre-trial by setting general scheduling parameters and then delegating the actual process to the parties. These managerial rules are a lot like the sort of administrative rules discussed above. Crucially, because the judge possesses an express permission to make the these types of managerial rules, these judicial versions of "let 'em play" are lawful. Without the grant of rule-making discretion discretion, they would be acting unlawfully.

Basketball referees might be acting lawfully if "just let 'em play" is the basketball analog of the police discretion not to enforce some applicable legal norm. The permission not to enforce is, for the most part, a distinctive feature of the police and prosecutorial roles, rather than the judicial one. In part, that's because cops don't have to give reasons not to enforce, but the courts do. But for the most part, the license not to enforce is an express license, recognized by the courts, based upon the need to choose where to place their energies.

Let 'em play could derive from an express license to choose non-enforcement. FIFA may have issued refereeing to this effect edicts at the current World Cup. That means that in soccer, non-enforcement derives from an express license not to enforce (in fact, from an order not to). To the extent that the referees simply apply the rules, they act in ways indistinguishable from judges (but also the police).

"Let em play" could be appropriate when enforcement practice is within the boundaries of set by vague official rules. Here, the officials have the delegated discretion to specify or concretize norms of official conduct where rules are squishy. Again, this would be acting like a judge. But it's not OK when enforcement practice is outside, and in opposition to, rules. Such enforcement practice is not "discretion" but something else. In that case, the background rules of the officials do not fill an interpretive or normative gap. Rather, the background norms of officiating operate to supplant and replace the official rules.

There is no express license to "let 'em play" in basketball. Instead, "let 'em play" derives from unofficial background rules that supplant the official rules. The referees who engage in this practice are lawless. Rather than enforcing rules, they are enforcing a different standard of conduct generated behind closed doors in a manner unavailable to public scrutiny.

The fact that their enforcement practice fits within (one portion of the) public(s) perception of justice does not make it more defensible: on the contrary, it raises problem of "our" rules versus "their" rules, or selective enforcement worries. What's more, in setting up private, institutional rules of enforcement in opposition to the rules of the game, or the law, the officials fail in one of their major role-based duties: to uphold the rules of the game, or the law. There may be good reasons for acting in opposition to the law. But because the failure of an is so significant—acting directly against the duty is the worst sort of failure of duty there can be—the justification for this type of conduct would have to be pretty weighty.

Like basketball referees, cops could decide that the certain legal requirements are pretty dumb, and develop some internal policy to and replace it. But, again like basketball referees, cops lack the right (really a "permission," that is, an Hohfeldian license-right) to change the law. So their internal policy would not fill out the law, it would act in opposition to it, and so be unlawful. Evidence obtained under such policies would be illegitimately obtained.

There is plenty of evidence in, for example, the giving of Miranda warnings that the police do have practices designed to work around and in opposition to the law, and that these practices are generated by lawyers who train the police in the law. The phenomenon is not, however, limited to the Fifth Amendment, but applies under the Fourth Amendment as well.

Finally, my point does not depend upon two related canards. This is not a rules/standards issue, nor is it a British (or European) formalism versus American realism issue.

The issue is: who gets to change the rules and by what procedure. Judges have a limited legal license to change the rules in applying them; the police have no such license. Yet the police, like basketball umpires, sometimes generate an alternative set of norms that they use not only to interpret the official rules of the game, but to supplant (and so ignore) the rules of the game. This body of norms may obtain some public support, and so arouse little controversy. But populism is not legitimacy, and supplanting the law with some other system of norms is lawlessness, even if it is popular or populist lawlessness. Lawlessness from those charged with upholding the law is an egregious moral failing. And to the extent it is encouraged from the bench and bar, the legal profession participates in that egregious moral failing.

Posted by Eric Miller on July 10, 2014 at 01:40 PM | Permalink


Eric: Interesting stuff and near to my heart.

But a question: How is this different than garden-variety executive discretion? Is not calling fouls late in the game analogous to not enforcing federal marijuana laws in Colorado? And would it make a difference if the rules themselves delegated or channeled this discretion to the officials--for example, a rule defining what is a foul, but also ordering officials to "maintain the flow of the game"?

Posted by: Howard Wasserman | Jul 10, 2014 5:04:45 PM

Howard: good question. The idea is this: if the rules license the official to generate a code of conduct (i.e., the official is filling in the gap) then the official has discretion and is acting within her role. If the rules do not license the official to do so then she does not have the discretion to use her code of conduct to supplant the law (or the rules of basketball). That's as true for non-enforcement as it is for enforcement. The basketball official is required to enforce the rules at the beginning of the game (she would do wrong under the rules to not-enforce); so she's required, by the rules, to enforce at the end of the game.

Now, in the marijuana example, the official is torn between two rules. Here, the situation is a less fraught version of Sophocles' Antigone: does Antigone obey the laws of the state or of the church? In Colorado (and now Washington?) does the official obey the laws of the state or of the federal government. A short answer is that a state official presumably owes slightly more deference to her own jurisdiction's rules, but that if she has sworn an oath to uphold federal statutes in addition to state rules, then she does wrong whichever she chooses. John Gardner has an interesting discussion of this sort of issue in his article, Criminals in Uniform, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2081697, drawing, I suspect, on Derek Parfit's discussion of "blameless wrongdoing" in Reasons and Persons. In any event, there may be cases in which an official cannot but do wrong; the official should hope that she can at least explain (Gardner says justify) some of that wrongdoing so as to avoid blame for her actions. This is really cryptic: I strongly recommend Gardner's article.

Posted by: Eric J. Miller | Jul 10, 2014 9:54:16 PM

But don't all rules, in essence, license some executive discretion? Or, put differently, isn't discretion inherent in executive function? Prosecutors cannot bring every case, so they usually develop enforcement priorities (recall, for example, how the Bush DOJ made religious freedom and obscenity a priority or made antitrust less of a priority). Aren't game officials doing some version of that and don't they necessarily have to do that?

Posted by: Howard Wasserman | Jul 10, 2014 11:12:50 PM

I don't think game officials *have* to under-enforce the rules, nor do I think that, for the most part, game officials have any license to under-enforce the rules. Most games are sufficiently simple that officials can enforce all the rules. And most games provide no license for not enforcing the rules.

If there are multiple concurrent infractions and no rule specifying the priority in which to deal with them, then the official might (have to and have a license to) choose among which infractions to punish (assuming she could punish only one). But there is a big difference between saying that a soccer referee missed an "offsides" call or a penalty, and that they are legitimately able to decide not to enforce the offsides or the penalty.

In soccer, at least (and rugby, and cricket, and tennis) the referee or umpire is duty-bound to call all infractions. As I mentioned at the beginning of the post, this may be a cultural difference between expectations in the US and the UK (as Berman's tennis example in his "let 'em play" law review article suggests). But I think that officials in games are duty-bound to apply all the rules uniformly.

In that respect, game officials *may* be different from executive officials. But in American criminal procedure, at least, executive officials are given an express discretion to under-enforce the law. United States v. Armstrong quite clearly licenses under-enforcement. So there is an *express* license to choose which laws to enforce.

There may also be a moral reason to under-enforce the law: considerations of mercy, or fairness, or the like may outweigh the legal reasons. But having decisive moral reasons does not make the legal ones go away, nor make the breach of the legal duty (if there is no license to depart from the law) any less of a breach of a duty. And where the breach of the legal duty serves the interests of the official, rather than justice (or mercy, or whatever moral justification there might be), then so much the worse. Part of my point is that we too often condone the breach of the legal duty to uphold or apply the law for the wrong reasons, which include thinking that the legal duty has disappeared rather than being supplanted (whether legitimately or not) by non-legal considerations. How much that should worry us depends upon the nature of the legal duty and of the extra-legal justification for supplanting it.

Posted by: Eric J. Miller | Jul 11, 2014 1:01:16 AM

One thing to consider is how discretion and judgment are built into the rule that defines the infraction. So even if, as you say, officials are duty-bound to call infractions, they still have to figure out when an infraction has occurred. And that may involve a host of considerations beyond the rule.

Take foot faults in tennis (the example with which Berman starts his article): The is judgment-free: Did the feet touch on or inside the baseline or center line before the ball was struck? So whether a foot fault occurred is fairly straight-forward and observable (not always accurately, of course,). Thus, applying temporal variance to faults would mean ignoring a violation of the rule as written.

By contrast, the NBA defines a foul as "illegal physical contact which occurs with an opponent." So *all* physical contact is not prohibited, only the "illegal" kind. "Illegal physical contact" is not defined anywhere. So a body of gap-filling has come up--from the officials themselves and from the League--to help define when physical contact is illegal. Officials have incorporated concepts into that question: Did the defender gain an advantage through the contact? Did the contact continue for too long (a quick bump v. riding the player's body)? Did it affect the flow of the game? So is also considering the timing of the play so far beyond what basketball refs already must do to define when a foul has occurred as the rule is written?

Posted by: Howard Wasserman | Jul 11, 2014 8:33:26 AM

It's tempting for lawyers to treat the rules of sports as analogues of legal regimes. The analogy is not entirely wrong, of course, but it is limiting. In organized sports, game rules are designed to turn competitive play into a narrative. And the kinds of games under discussion -- professional soccer and basketball -- aren't just narratives consumed by the participants, they're entertainments for vast audiences. Given that, I don't think "let 'em play," like tolerance for flopping (or like the vagaries of the strike zone in baseball), can be understood in strictly juridical terms -- there's an irreducible aesthetic element that has to be considered and that makes the comparison to law untenable. Drawing on soccer or basketball may be helpful in thinking about courts and policing (and perhaps someone should tally the number of times in Supreme Court oral arguments sports analogies are invoked), but I don't believe that legal theory tells us much about when NBA refs should call charges. Getting exercised over the "lawlessness" of NBA refs demonstrates, I'd suggest, that this really is a cultural issue: "let 'em play" doesn't make sense to some spectators, but for reasons of taste, not morality. De gustibus . . . .

Posted by: Comment2 | Jul 11, 2014 10:28:21 AM

For what it's worth, the NBA has general guidelines for applying its rules:

"Each official should have a definite and clear conception of his overall responsibility to include the intent and purpose of each rule. If all officials possess the same conception there will be a guaranteed uniformity in the administration of all contests.

"The restrictions placed upon the player by the rules are intended to create a balance of play, equal opportunity for the defense and the offense, provide reason-able safety and protection for all players and emphasize cleverness and skill without unduly limiting freedom of action of player or team.

"The primary purpose of penalties is to compensate a player who has been placed at a disadvantage through an illegal act of an opponent. A secondary purpose is to restrain players from committing acts which, if ignored, might lead to roughness even though they do not affect the immediate play. To implement this philosophy, many of the rules are written in general terms while the need for the rule may have been created by specific play situations. This practice eliminates the necessity for many additional rules and provides the officials the latitude and authority to adapt application of the rules to fit conditions of play in any particular game."

Towards the end of the game there may be less to "restrain players from committing acts which, if ignored, might lead to roughness." The end of the game is sometimes more rough, but there's less opportunity for escalation, which I think this guidance is getting at. This would provide some officially-sanctioned reasoning for slacking off on enforcement towards the end of the game.

Posted by: Derek Tokaz | Jul 12, 2014 6:06:14 PM

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