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Tuesday, December 01, 2009

Why Aren't Instant Replays Reviewed De Novo?

Many thanks to the whole Prawfs crowd for having me here. Throughout the month I’ll try to blog a bit about constitutional law and being a first year law professor, but I’m going to start with a question of much broader significance: Why are instant replays in the NFL (or in any other sport) subject to a heightened standard of review that requires “conclusive” or “indisputable” evidence to overturn an incorrect call?  Why not review them de novo?

These are familiar questions for lawyers, of course. Standards of review insulate factfinders’ decisions from being overturned on appeal, even when reviewing judges disagree with them. A decision about trial management, for example, can be in some sense “wrong” without being an abuse of discretion. As long as it’s not the latter, it'll stand.

And there may be good reasons for this. If standards of review are essentially a way of allocating decisionmaking authority between trial and appellate courts based on their relative strengths, then it probably makes sense that the former get primary control over factfinding and trial management (i.e., their decisions on those matters are subject only to clear error or abuse of discretion review), while the latter get a fresh crack at purely “legal” issues (i.e., such issues are reviewed de novo). Heightened standards of review apply in areas where trial courts are in the best place to make correct decisions.

But I don’t see how those arguments apply at all to instant replay in sports, which after all are just appeals of a different kind. An umpire or referee operating in real time is not in a better place to make a correct call than another referee (or even the same one) viewing the same play, from multiple angles, in slow motion, on a monitor. Am I missing something, or aren’t the usual arguments for having a strict standard of review—primarily, the relative competence of the factfinder—absent in the context of instant replay?

While puzzling through this momentous issue during last night’s Saints-Pats blowout, I learned that illustrious (aren’t they all?) Prawfs alumnus Chad Oldfather has done some actual, longer-than-a-blog-post thinking about it. He and Marquette 3L Matthew Fernholz have co-authored an interesting new piece called Comparative Procedure on a Sunday Afternoon: Instant Replay in the NFL as a Process of Appellate Review, __ Ind. L. Rev. (forthcoming 2010), which as I read it doesn’t take a stand in favor of de novo review (see n. 97) but does use the process of instant replay in the NFL to elucidate some general principles of appellate review.

And for a multimedia version of the principle in action, check out the review of Brad Miller’s possible-buzzer-beater against the Nuggets last month.

Posted by Joseph Blocher on December 1, 2009 at 02:28 PM in Article Spotlight, Civil Procedure, Judicial Process, Sports | Permalink


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I think the reason is primarily to preserve the authority of the referee on the field. A presumption of infallibility is enforced through a great number of restrictions on the participants on their ability to question a call, especially publicly. This is merely a manifestation of a larger principle, that questioning the guy on the ground is not allowed.

Posted by: Ryan Waxx | Dec 10, 2009 7:10:41 PM

One additional consideration is , i think, tantamount to the concept that an appellate decision is considered in the light most favorable to the trier of fact: In this case, in the light most favorable to the support of the decision made by the crew on the field. Such a standard serves to place some limitation on excessive challenges. It doesn't seem to be an unreasonable presumption.

Posted by: Joe | Dec 10, 2009 3:09:38 PM

"Indisputably wrong" might be excessive language, but, in practice, the standard is probably more like "clearly" or "plainly" wrong, or "wrong beyond reasonable dispute." This makes sense to me. Unless the video review clearly shows that the call was wrong, all de novo review would do is replace one questionable call with another. Yes, there are many camera angles on review, but they may not be ideal camera angles, and a different set of angles might lead you to lean in the other direction. The original ref's angle -- and live view -- might be best. The point is, if it's not clear, it's not clear, so we go with the first questionable judgment rather than second, third, or fourth, which are no more likely, generally speaking, to be better calls.

Also, isn't it question-begging to say that standards of review in the law correspond to who is in a better position to make the call? The only reason appellate courts are not in a better position to make various calls is because they're forbidden from rehearing evidence. Like the refs, appellate courts could pretty easily review facts with the help of video records, and this could be constitutionally done in cases where there is no jury right or it's waived. And in jury cases, well, appellate courts could impanel appeallte juries, and we could routinely do retrials.

Posted by: JakeH | Dec 9, 2009 4:47:27 PM

They ARE reviewed de novo. The refs absolutely do not in practice give any deference to the initial call. Often their explanations all but admit this.

Posted by: Joe | Dec 9, 2009 4:16:37 PM

I think its all the result of a bargain between historical classicists and progressive techies. While that might not sound very clear - it is. Younger people in the NFL wanted replay, and older traditionalists wanted to keep the autonomy, risk and reward of the referee. Remember, using a heightened standard of review would in effect, require that the call made on the field - as play develops - was grossly incorrect. Thus, if you have an indeterminable issue of fact, the fact is resolved by the initial fact finder - the referee (the jury). I like the current system and I do believe that it helps to facilitate a reasonable amount of challenges. Providing a de novo review would undermine the system of referee as jury and prolong the game excessively.

Posted by: Doug Reiser | Dec 7, 2009 6:52:24 PM

To me the current system makes sense. Deferential review because there are instances where the officials see things the cameras can't. Replays overrule the officials where the cameras see the same things, and the result is different.

Unlike Chevron deference, for example, where the appellate court may affirm the lower court's ruling even if it unequivocally disagrees with it, if the replay unequivocally disagrees with the official's call, the official watching the replay will overrule the play.

Posted by: Allen | Dec 7, 2009 2:35:03 PM

If the call of the field referee was not presumptively valid, how would we feel comfortable about overturning the ruling on ambiguous (or less than a high standard) video evidence? Often the result of the replays I am shown or DVR for myself are very much a big question mark. Right now the rules only alter the decision in cases where a high bar is met, essentially a fan of the either team would probably have to agree (even if begrudgingly). I think, if after watching several minutes of uncertain video the ref just up and made a call, there would be more frustration rather than less in a de novo style of review. Right now I just feel upset at a ref over a bad call and that is substantially mitigated by my understanding that calling a game is probably hard. The ref is, after all, human. I think if the call that frustrated my desire came from an observably arbitrary system instead of from the fate of human error I would be less pleased rather than more.

Posted by: Rudy FInk | Dec 2, 2009 4:33:55 PM

Great post Joe, and I totally see Aaron's point. This is an AEDPA-like rule, designed to only allow appellate review only in the most egregious cases. Consider the analogies to procedural default (60 second time limit on challenging a call), the ban on second and successive petitions (coaches have only two challenges per game and it costs them a timeout), and the requirement of a federal constitutional violation not just a violation of state law (the wide variety of totally nonreviewable referee calls).

I can't wait to read the paper!

Posted by: Chris Lund | Dec 1, 2009 10:43:41 PM

Thank you for pointing us to Chad Oldfather's forthcoming article; I need to check that out.
In addition to (or instead of) institutional competence reasons for deferential review, here maybe part of the explanation is that the NFL just doesn't want very many calls reversed, period. That isn't a recognized procedural value in the judicial appellate system. (Or is it? One sometimes hears, especially in habeas cases, that we don't want to undermine the trial as the "main event," which kinda sounds like such a view, but then habeas is in addition to the regular appellate process).

Posted by: Aaron Bruhl | Dec 1, 2009 5:17:45 PM

There are a few problems with a de novo review, at least in the NFL. Most importantly, not all games have the same number of cameras. Besides prime time games having many more network cameras, the lowest-priority games sometimes have far fewer than the higher profile match-ups. In a Browns vs. Bills game, for example, a sideline pass where a receiver catches the ball on or near the sideline might be very hard to review based on limited camera angles. That doesn't mean that the head ref couldn't decide that it looks like he is, according to his shot, in-bounds.

The side-judge's perspective, however, is the same from game to game. And, presumably, his view is best, and cannot always be replicated by a camera. The fact that it's a split-decision review, versus a 90-second review, doesn't necessarily help the head official make a better call. And given the disparities between the games in terms of the booth reviews available, it might be preferable to at least defer to the constant.

Posted by: Human | Dec 1, 2009 5:06:15 PM

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