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Tuesday, February 25, 2014

Sport, non-sport, and judging

I have wanted to use Jordy's posts about judging and reputation to jump into other things, especially as the posts pertain to activities such as figure skating. And I want to tie this to my ongoing interest in defining what constitutes sport, for which I believe I have landed on a workable definition that focuses on whether a contest is decided by evaluating the intrinsic quality of an athletic skill (not sport) or the instrumental result of the performance of that skill (sport). The attempt to understandin judging may introduce some consequences into the distinction.

Sport is governed by what Mitchell Berman called the “competitive desideratum,” the desire that the “outcome of athletic contests . . . depend (insofar as possible) upon competitors’ relative excellence in executing the particular athletic virtues that the sport is centrally designed to showcase, develop, and reward.” The outcome of a sporting event should not be decided by anyone other than the players themselves. And it particularly should not be decided by an umpire or referee making pronouncements about the game's rules.. Of course, that is not entirely possible, since sports are governed by rules that must be applied and enforced by someone, with enforcement certainly influencing the outcome.

The answer, I began arguing here, is that sports rules are analogous to rules of procedure, the framework rules in which a contest (athletic or judicial) is decided and resolved. These framework rules are not the focus of the contest and should not dictate the outcome. Instead, they regulate the competition, while the players control the outcome through their relative skills and the results of those skills. True, decisions about these framework rules--whether a pitch is a ball or strike or whether something is a foul-- affect how the competitors act and the contest must be resolved in light of those decisions. So we might say these rules "influence" the result. But the players still control the outcome of the game through their skills--whether the pitcher gets the batter out, whether the ball goes in the basket, etc.--without real input from the umpire/judge/referee.

And this is where the sport/non-sport distinction matters. For non-sports such as figure skating, we never get away from the judge and her ultimate opinion as to the intrinsic quality of the skater's performance of those skills. That opinion of the skaters' skills decides the outcome of the contest, not anything that follows from those skills. In other words, the rules of a non-sport are analogous to substantive law that courts (whether through jury or judge) use to decide a legal dispute. Non-sport possesses some of Berman's "competitive desideratum," but the skills cannot alone decide the outcome without a judicial ruling. Just as legal arguments and proof cannot alone decide the outcome of litigation without a judicial ruling.

Returning to Jordy's point about attorney reputation in the eyes of judges, the difference between sport and non-sport lies in how directly reputation affects the outcome. In a sport, to the extent reputation affects what gets called a strike for certain hitters or what gets called a foul for certain players, the influence is indirect, the outcome still controlled by whether the pitcher can get the batter out or whether the ball goes in the basket. In non-sport, to the extent reputation affects how the judges perceive the quality of a jump, spin, or skate, the influence directly dictates the end result of the competition. (In the litigation realm, this might parallel differences in how attorney reputation affects a judge's view of a particular attorney's discovery motion and how it affects the judge's ultimate findings of fact on the merits of the claim).

These are necessarily preliminary thoughts that I hope to perhaps flesh out in the future.

Posted by Howard Wasserman on February 25, 2014 at 09:31 AM in Civil Procedure, Howard Wasserman, Sports | Permalink


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I have often thought about this in the context of the Olympics, which includes events in dressage, curling, and archery, and is often prompted to consider ballroom dancing. I use the definition that "sport" is a scored competition that is sufficiently athletic that while it is not prohibitive of winning, it is a distinct disadvantage to be over the age of 35.

Posted by: Ken Klein | Mar 6, 2014 1:05:04 PM

I stated my preferred definition in an earlier post linked above. I was convinced by a number of people (including commenters on this blog) that objectivity does not work, because too much in unquestioned sports, such as wrestling, remains subjective (e.g., was that a takedown?). Which is how I settled on the instrinsic/instrumental line--was the skill being evaluated for how well it was performed or its result. It gets to the same result without relying on a tenuous objective/subjective distinction.

What I'm trying to do here is bring decisionmaking into the analysis.

Posted by: Howard Wasserman | Feb 26, 2014 8:09:16 AM

Sigh for typo. Left shoulderblade.

This comment was mangled by an iPad

Posted by: Joe | Feb 26, 2014 7:58:00 AM

My preferred test: there is Objective Scoring. (Ball went in hoop, left shoulder place was pinned, racer passed the finish line first). There is Competition. And you can Hinder (make it harder for the opponent to win).

Figure skating might even meet the first one, but not the third.

Posted by: Joe | Feb 26, 2014 7:57:24 AM

This is an elegant and articulately formulated meditation on a poor distinction.

A score in football is not an event that exists by itself. It must be signaled as such by a person with authority, indicating their opinion that the ball was controlled in the zone, feet inbounds properly, etc etc. Sports are mediated by the rules. See John Roberts' response about his role, vs the story of the three umpires. Balls and strikes ain't nothin until I call them.

There have been good distinctions about what's a sport and what is something else. I don't think you hit on it.

Posted by: Joe | Feb 26, 2014 7:52:28 AM

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