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Could technology resurrect the dignity of the FIFA World Cup refereeing?
c o m p u t e r l a w & s e c u r i t y r e v i e w 3 0 ( 2 0 1 4 ) 5 6 9 e5 7 3
Available online at www.sciencedirect.com
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Comment
Could technology resurrect the dignity of the FIFA World Cup refereeing?* Dan Jerker B. Svantesson* Centre for Commercial Law, Faculty of Law, Bond University, Australia
abstract Keywords:
The 2014 FIFA World Cup is over and was in most senses a success. However, the reality is
FIFA World Cup
that from the perspective of fairness, the 2014 World Cup was off to a remarkably bad start.
Refereeing
Like many major football events in the past, this World Cup was plagued by controversial
Technology in sports
refereeing.
Legal philosophy
In this article, I will speculate about the role that technology may play in enhancing the great game of football. I will also draw some comparison between the rules of this sport and the rules of law. This will be done mainly from a legal philosophical perspective. © 2014 Dan Jerker B. Svantesson. Published by Elsevier Ltd. All rights reserved.
1.
Introduction
The 2014 FIFA1 World Cup is over. It provided a month of entertainment involving 64 matches, with an average of 2.7 goals per game (up from 2.3 in 2010) and, I think most people would agree, unusually positive attacking football. New stars made their debut on the world stage and old favourites continued to impress. Against such a backdrop, it may seem overly critical to give anything but praise. However, the reality is that from the perspective of fairness, the 2014 World Cup was off to a remarkably bad start. The opening game included at least two highly questionable decisions by the referee. First, the very generous penalty
*
kick awarded in Brazil's favour, and then Croatia had a goal disallowed on equally weak grounds. The second game saw Mexico miss out on two goals due to controversial decisions by the referees, and in the game between Spain and the Netherlands, it was again the case that a penalty kick was awarded on very weak grounds. The variable quality of the refereeing continued throughout the tournament with great controversies arising, for example, when Brazil was defeated by The Netherlands in the game for third place. The first goal was a result of a penalty kick that probably should not have been awarded as the offense seemed to take place outside the penalty area, and the second goal came after what looked like an offside situation.
This Comment is an expanded version of an article e ‘Technology vs discretion: how to save World Cup refereeing dignity’ e that appeared on 19 June 2014 on The Conversation (https://theconversation.com/technology-vs-discretion-how-to-save-world-cuprefereeing-dignity-28059). I am indebted to Deputy Editor Belinda Smith for the editorial work on that article. I also wish to acknowledge the contribution made by those who have aided me with their comments on the original article and willingness to discuss the topic of football refereeing in general. You are too numerous to be mentioned by name, but you know who you are. * Centre for Commercial Law, Faculty of Law, Bond University, Gold Coast, Queensland, 4229 Australia. E-mail address: [email protected]. 1 de ration Internationale de Football Association. Fe http://dx.doi.org/10.1016/j.clsr.2014.07.004 0267-3649/© 2014 Dan Jerker B. Svantesson. Published by Elsevier Ltd. All rights reserved.
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In light of instances such as these, it is perhaps not surprising that the performance of the referees has been met with, on occasions, strong and unusually universal criticism. Commenting on the penalty situation that saw Brazil equalise € jdfeldt e a former UEFA2 referee in the opening game, Peter Fro e observed: ‘He [Nishimura, the referee] was well placed and he looked very convinced when he blew the whistle. But I do not think he is equally convinced when he gets to see the situation again.’3 In this, I think we can perceive a hint at where we will find the solution to the problem plaguing this World Cup as it has in the past as well. The solution is, of course, the adoption of technologies such as replay footage for the referees. In this paper I will speculate about the role that technology may play in enhancing the great game of football. I will also draw some comparison between the rules of this sport and the rules of law. This will be done mainly from a legal philosophical perspective.
2.
Technology to the rescue
Before discussing options for introducing further technical ‘advances’, it is prudent to point out that this World Cup saw the successful introduction of two technical innovations. This was the first World Cup at which the referees were using temporary paint to draw lines marking the position of the ball and players at set pieces. It was also the first World Cup at which goal line technology was adopted. I suspect few observers would argue that either of these technologies interfered with the game. Indeed, I think most would agree that these technologies actually helped improve the game. For example, already in the first round match between France and Honduras we witnessed the positive effect of the goal line technology. Taking this to its logical extension e that is, the use of technology to ensure correct decisions by the referees e we may well picture a future where referees are aided by technology to a much greater extent than today. One possible addition to the referees' tool belt is the recently launched Google Glass, or a similar product from some other provider e FIFA Glass perhaps? This may not be what all those fans commonly heard chanting that the referee needs glasses may have referred to, but it may be part of a future solution to the difficult task facing the referees. Such a tool could perhaps be used to indicate offside situations in real-time, and could be used to provide the referees with instant multi-angle replays of controversial occurrences during the game. An independent video referee is another alternative that has the advantage of having been used for some time in other sports such as in the National Rugby League (NRL) in Australia. Opponents of technology in sports have presented a range of arguments. I will now seek to address some of the more potent arguments they present. 2
? Union of European Football Associations. € nget’ Aftonbladet (Stockholm, 13 June ‘Det gagnar inte domarga 2014) accessed 14 July 2014. 3
3.
‘It is only a game, it's not about money’
One of the first arguments normally raised by the antitechnology league is that football is just a game, and being just a game the imperfections in refereeing matter not. It is a truism that football is a game. But, as far as this World Cup goes, it is a game in which: US$576 million in prize money will be distributed to participating nations whenever they get eliminated; US$35 million will be given as prize money to the winning team's soccer federation; and US$9.69 billion is the estimated total value of the 786 players in the World Cup tournament.4 To be clear, I am not suggesting that any of this is good (or necessarily bad), but I am saying that where so much is at stake e.g. for the players and the football federations of individual countries, it may (unfortunately) be too late for an ‘it's not about money’ attitude. Thus, even if one accepts the imperfections in refereeing for the game as such, it may be a different question whether we can accept the implications those imperfections have for the distribution of large sums of money. To this may be added that football, like many other sports, is plagued by corruption related to criminal syndicates seeking to manipulate game results. This is a fascinating area with obvious legal aspects to it, but I will not pursue them here. It suffices to note that, where technology provides transparency and limits the discretion of the referee, it may help to stamp out referee-based result manipulation. Idealists will argue that shaping the rules and conduct of the game to cater for the conduct of the gambling-related industry is to sacrifice the game on the altar of capitalism. On the other hand, one may perhaps equally see it as means to shield the game from corrupting by outside pressures?
4.
The ‘control of the soul’
Opponents of the use of technologies such as cameras will say that such technologies take away the soul of the game: that mistakes are part and parcel of football refereeing and that the refereeing team is part of the game, not separate from it. But let us think back to the game between England and Germany in the 2010 World Cup. Frank Lampard's shot hits the cross bar and bounces downwards. The whole ball is clearly over the line, but the refereeing team rules no goal. I wonder how many Englishmen took a sigh of relief when seeing the ‘soul of the game’ being preserved on that occasion. Similarly, consider the game between Italy and Australia at the 2006 World Cup. Italy was very generously awarded a 4
See further: Sara Sjolin, ‘Who has the most expensive World Cup squad?’ (MarketWatch, 10 June 2014) accessed 14 July 2014.
c o m p u t e r l a w & s e c u r i t y r e v i e w 3 0 ( 2 0 1 4 ) 5 6 9 e5 7 3
penalty kick resulting in Australia's departure from that tournament. Few Australians crowded the streets celebrating the win of the soul on that occasion. Numerous other examples can be found. Indeed, most nations and clubs probably have had their special moment of despair. How can we feel aggrieved if we think referee mistakes e not just controversial decisions, but instances where the referee would have come to a different conclusion if provided with video replays e are such an essential and wonderful part of the game so as to indeed be viewed as the ‘soul’ of the game?
5.
‘Don't stop the flow’
Unlike the many stop-start sports, football is a flowing game. Waiting for video referee decisions may then be both annoying and destructive some say. Others think the wait for the decision gives time for special attention being directed at the most interesting situations in the game. These points of view are, of course, subjective, and there can be no expectation that there will be total agreement on the best course forward. However, there is an angle to this issue that is of a more objective nature. One potentially major problem is that in the game of football, played in many countries including in cool weather, delays and stoppages increase the risk of players injuring themselves. This must be considered. However, I think good referees would reserve the use of assisting technologies to the most important situations. The risk of overreliance would have to be dealt with, but I think it could be overcome.
6. ‘Technology could only be used on the highest level anyhow’ Some opponents of technology adoption in football point to the fact that advanced technologies can only be used in the top leagues and top tournaments. Football is, as they stress, a much broader matter than that with a huge number of players on various levels around the world. This, to me, seems like a particularly odd basis for objection. They are certainly correct in their claim that most players never will play in circumstances where advanced technologies are used. But then, most players do not play in circumstances where so much, financially and otherwise, is at stake. In fact, it can hardly be surprising that the level of technology to some extent will correspond to the level of importance of the game at hand. Most importantly, however, is it not already the case that technologies are used in many sports on the higher levels but not on the recreational levels? Consider lines technology in tennis etc. Is there any evidence that the use of lines technologies in professional tennis has caused an outcry amongst the players on the recreational levels? And is it not already the case that many football matches around the world take place under such poor circumstances that both goal posts and lines are lacking? Can that be a reason for the removal of such technologies also in e.g. the World Cup? Surely not.
571
While I have no strong views in either direction when it comes to the potential introduction of technology on the recreational levels, it is worth noting that technology moves quickly and prices often come down already after a few years. I suspect one will be able to purchase some form of Glass technology for a couple of hundred dollars at low price stores in a few years. If e.g. FIFA provides reliable software for such platforms, we may well see the referees in the lower leagues using Glass technology to assist their refereeing soon enough (or too soon if you are in the camp against the use of technology in sports) to assist with matters such as offsides.
7.
The rules of football vs the rules of law
One of the central debates in legal philosophy has been focused on so-called ‘judicial discretion’ e to what extent do, and should, judges enjoy discretion in the judgments they make? Most non-lawyers would probably be surprised at any suggestion that judges exercise discretion in deciding the cases that come before them. But even though there most likely is not a single matter legal philosophers agree upon universally, there is widespread recognition that judges do exercise such discretion. One way of explaining the sources of this discretion goes like this: the facts of a case may be impossible to ascertain with 100% certainty (for example, is a particular witness telling the truth?) and some laws are intentionally, or unintentionally, vague (advertisement is not allowed to be misleading, but what does it take for it to be classed as misleading?). Indeed, law makers often have strong incentives to introduce vagueness into the law e.g. to ensure that the laws remain useful despite technological advances. Consequently, there is not always just one way in which to interpret the facts and/or the law, and the judge must exercise a degree of discretion and chose amongst several possible ways in which to decide the case. Some will see the judges' discretion to interpret vague laws as beneficial in that it may advance the legal system, but few would argue that there are any benefits stemming from the impossibility of, for example, ascertaining whether a witness is lying or not. This distinction is of central importance for the matter under the proverbial microscope in this article. The rules of sports like football may be similar in vagueness to legal rules. Consider e.g. the following FIFA rule5: A direct free kick is awarded to the opposing team if a player commits any of the following seven offences in a manner considered by the referee to be careless, reckless or using excessive force: kicks or attempts to kick an opponent trips or attempts to trip an opponent 5
FIFA, ‘Laws of the Game’ (Fifa.com, 1 March 2014) 36, available at
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jumps at an opponent charges an opponent strikes or attempts to strike an opponent pushes an opponent tackles an opponent
There is no doubt that rules such as these provide a great degree of discretion to referees. For example, the difference between a situation where a player intentionally attempts to ‘trip an opponent’ (an offense) and a situation where the same player merely has innocent contact with that opponent (not an offense) is clearly a matter of degree e we are here in the same grey zone as we find ourselves in when applying many legal rules. Approached from the perspective of legal philosophy, we can note how this rule neatly incorporates the idea of keeping validity separate from (objective) truthfulness. The FIFA rule outlined above expressly focuses on the referee's perception e the free kick is awarded if the referee considers that the act in question was committed in a careless or reckless manner or using excessive force. The authority of a referee is then based on the fact that his decision is valid regardless of its factual grounds e truthfulness of such decision is then totally unrea k, he lated to its validity. Discussing the matter with Dr Polc mentioned a proverb in Czech that may be seen to describe the situation; it says something along the lines of that ‘precision is a prerogative of kings’; meaning that when a king says he arrives at a particular place at 1pm, it simply is 1pm when he arrives even though it, from an objective perspective, may in fact be 9am. Similarly, under the rules of football, an offense is committed when the referee says that an offense has been committed, regardless of what, in objective terms, has transpired. Those committed to the view that any decision of the referee is part of the game and must be recognised as valid under the reasoning above would do well to ask themselves whether following this line of reasoning to its logical conclusion takes them outside their comfort zone; are they, for example, prepared to recognise as valid a decision by the referee that a goal has been scored where the ball in fact has not even entered the penalty area? The better view is that, as recognised e.g. by Hart, what sets a game like football apart from a game of what he calls ‘scorer's discretion’ e a game where everything is in the discretion of the scorer (i.e. the referee) e is that the rules, although they are open to a degree of interpretation, do contain a core of settled meaning6: It is this which the scorer is not free to depart from, and which, so far as it goes, constitutes the standard of correct and incorrect scoring, both for the player, in making his unofficial statements as to the score, and for the scorer in his official rulings. It is this that makes it true to say that the scorer's rulings are, though final, not infallible. The same is true in law.7
6
H L A Hart, The Concept of Law (Oxford University Press, 3rd ed, 2012), at 144. 7 H L A Hart, The Concept of Law (Oxford University Press, 3rd ed, 2012), at 144.
Before proceeding further with the comparison between the role of judges in courts on the one hand and referees on the football pitch on the other hand, we must pause to note one important difference between the two e judges decide a case in its entirety while a referee decides only on more or less marginal issues (was it a foul? was it an offside?). In other words, unless we view referees as sovereigns entitled to rule as they wish without restrictions and with the power to simply decide which team wins the game e a notion most would object to e judges hold a greater discretion to influence the overall outcome than do referees. At the same time, in some circumstances referees can, and do, decide games at least from a practical perspective. Imagine, for example, a World Cup final with one minute left to play and the referee awards a completely baseless penalty kick. Of course, the ball still needs to pass the goal keeper e an act necessarily carried out by a player e but still on a practical level the actual influence of the referee is tremendous. Somewhat similarly, the judge's discretion is of course limited by the facts of the matter brought before him, and indeed, by the potential for appeals. And with the parties to a legal dispute having the ability to hide assets and undertake other measures to prevent enforcement, maybe we cannot see judges' decisions as the end of the matter in legal disputes either; and maybe such decisions are also somewhat marginal in some cases in relation to the overall aim of enforcement of what the winning party seeks. Perhaps the difference between judges' discretion to influence the overall outcome and the discretion held by referees to do so is merely a difference in degree rather than a difference in kind? At any rate, sports such as football enjoy one crucially important advantage over the legal system; that is, football games take place in predetermined locations at which it is reasonable to install advanced surveillance equipment monitoring the game. In sports, we can use technology to find the correct facts to a greater extent than we can in society in general. Although the use of monitoring technologies such as CCTV exists, we are fortunately some way from constant multi-angle monitoring and goal line technology applied to detect e.g. jaywalking. As noted above, few would argue that there are any benefits stemming from the impossibility of ascertaining the facts of a legal matter, for example, ascertaining whether a witness is lying or not. So why would that eagerness to find facts not translate onto the football pitch? Why are we so concerned about decisions being based on facts in a lowvalue dispute between two neighbours, when we are not even attempting to base the decisions in multi-million football games on facts?
8.
Concluding remarks
Maybe it is the case that both our judges and our referees are enjoying too much discretion? Perhaps paradoxically, it may be the case that we have to accept that judges exercise discretion, but maybe we can do more to limit the discretion enjoyed by the World Cup referees. And it is here the cameras and other technologies come into the picture.
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Some will say that cameras do not change the level of discretion; they only leave the referees with a more informed discretion. I think that is wrong. The level of discretion is to a great extent depending on our expectations of the referees, and if they have the benefit of helpful technologies our expectations can be raised and the referees will hopefully rise to the challenge. At any rate, we may here again recall what Hart tells us: Up to a certain point, the fact that some rulings given by a scorer are plainly wrong is not inconsistent with the game continuing:
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they count as much as rulings which are obviously correct; but there is a limit to the extent to which tolerance of incorrect decisions is compatible with the continued existence of the same game, and this has an important legal analogue.8 A lot, including national pride and huge amounts of money, is at stake at an event such as the World Cup. It then seems rather odd that we are not more careful to make sure that the decisions by the referees e decisions that are determinative e are based on facts to the greatest degree possible.
8
H L A Hart, The Concept of Law (Oxford University Press, 3rd ed, 2012), at 144.
Available online at www.sciencedirect.com
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Comment
Could technology resurrect the dignity of the FIFA World Cup refereeing?* Dan Jerker B. Svantesson* Centre for Commercial Law, Faculty of Law, Bond University, Australia
abstract Keywords:
The 2014 FIFA World Cup is over and was in most senses a success. However, the reality is
FIFA World Cup
that from the perspective of fairness, the 2014 World Cup was off to a remarkably bad start.
Refereeing
Like many major football events in the past, this World Cup was plagued by controversial
Technology in sports
refereeing.
Legal philosophy
In this article, I will speculate about the role that technology may play in enhancing the great game of football. I will also draw some comparison between the rules of this sport and the rules of law. This will be done mainly from a legal philosophical perspective. © 2014 Dan Jerker B. Svantesson. Published by Elsevier Ltd. All rights reserved.
1.
Introduction
The 2014 FIFA1 World Cup is over. It provided a month of entertainment involving 64 matches, with an average of 2.7 goals per game (up from 2.3 in 2010) and, I think most people would agree, unusually positive attacking football. New stars made their debut on the world stage and old favourites continued to impress. Against such a backdrop, it may seem overly critical to give anything but praise. However, the reality is that from the perspective of fairness, the 2014 World Cup was off to a remarkably bad start. The opening game included at least two highly questionable decisions by the referee. First, the very generous penalty
*
kick awarded in Brazil's favour, and then Croatia had a goal disallowed on equally weak grounds. The second game saw Mexico miss out on two goals due to controversial decisions by the referees, and in the game between Spain and the Netherlands, it was again the case that a penalty kick was awarded on very weak grounds. The variable quality of the refereeing continued throughout the tournament with great controversies arising, for example, when Brazil was defeated by The Netherlands in the game for third place. The first goal was a result of a penalty kick that probably should not have been awarded as the offense seemed to take place outside the penalty area, and the second goal came after what looked like an offside situation.
This Comment is an expanded version of an article e ‘Technology vs discretion: how to save World Cup refereeing dignity’ e that appeared on 19 June 2014 on The Conversation (https://theconversation.com/technology-vs-discretion-how-to-save-world-cuprefereeing-dignity-28059). I am indebted to Deputy Editor Belinda Smith for the editorial work on that article. I also wish to acknowledge the contribution made by those who have aided me with their comments on the original article and willingness to discuss the topic of football refereeing in general. You are too numerous to be mentioned by name, but you know who you are. * Centre for Commercial Law, Faculty of Law, Bond University, Gold Coast, Queensland, 4229 Australia. E-mail address: [email protected]. 1 de ration Internationale de Football Association. Fe http://dx.doi.org/10.1016/j.clsr.2014.07.004 0267-3649/© 2014 Dan Jerker B. Svantesson. Published by Elsevier Ltd. All rights reserved.
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In light of instances such as these, it is perhaps not surprising that the performance of the referees has been met with, on occasions, strong and unusually universal criticism. Commenting on the penalty situation that saw Brazil equalise € jdfeldt e a former UEFA2 referee in the opening game, Peter Fro e observed: ‘He [Nishimura, the referee] was well placed and he looked very convinced when he blew the whistle. But I do not think he is equally convinced when he gets to see the situation again.’3 In this, I think we can perceive a hint at where we will find the solution to the problem plaguing this World Cup as it has in the past as well. The solution is, of course, the adoption of technologies such as replay footage for the referees. In this paper I will speculate about the role that technology may play in enhancing the great game of football. I will also draw some comparison between the rules of this sport and the rules of law. This will be done mainly from a legal philosophical perspective.
2.
Technology to the rescue
Before discussing options for introducing further technical ‘advances’, it is prudent to point out that this World Cup saw the successful introduction of two technical innovations. This was the first World Cup at which the referees were using temporary paint to draw lines marking the position of the ball and players at set pieces. It was also the first World Cup at which goal line technology was adopted. I suspect few observers would argue that either of these technologies interfered with the game. Indeed, I think most would agree that these technologies actually helped improve the game. For example, already in the first round match between France and Honduras we witnessed the positive effect of the goal line technology. Taking this to its logical extension e that is, the use of technology to ensure correct decisions by the referees e we may well picture a future where referees are aided by technology to a much greater extent than today. One possible addition to the referees' tool belt is the recently launched Google Glass, or a similar product from some other provider e FIFA Glass perhaps? This may not be what all those fans commonly heard chanting that the referee needs glasses may have referred to, but it may be part of a future solution to the difficult task facing the referees. Such a tool could perhaps be used to indicate offside situations in real-time, and could be used to provide the referees with instant multi-angle replays of controversial occurrences during the game. An independent video referee is another alternative that has the advantage of having been used for some time in other sports such as in the National Rugby League (NRL) in Australia. Opponents of technology in sports have presented a range of arguments. I will now seek to address some of the more potent arguments they present. 2
? Union of European Football Associations. € nget’ Aftonbladet (Stockholm, 13 June ‘Det gagnar inte domarga 2014)
3.
‘It is only a game, it's not about money’
One of the first arguments normally raised by the antitechnology league is that football is just a game, and being just a game the imperfections in refereeing matter not. It is a truism that football is a game. But, as far as this World Cup goes, it is a game in which: US$576 million in prize money will be distributed to participating nations whenever they get eliminated; US$35 million will be given as prize money to the winning team's soccer federation; and US$9.69 billion is the estimated total value of the 786 players in the World Cup tournament.4 To be clear, I am not suggesting that any of this is good (or necessarily bad), but I am saying that where so much is at stake e.g. for the players and the football federations of individual countries, it may (unfortunately) be too late for an ‘it's not about money’ attitude. Thus, even if one accepts the imperfections in refereeing for the game as such, it may be a different question whether we can accept the implications those imperfections have for the distribution of large sums of money. To this may be added that football, like many other sports, is plagued by corruption related to criminal syndicates seeking to manipulate game results. This is a fascinating area with obvious legal aspects to it, but I will not pursue them here. It suffices to note that, where technology provides transparency and limits the discretion of the referee, it may help to stamp out referee-based result manipulation. Idealists will argue that shaping the rules and conduct of the game to cater for the conduct of the gambling-related industry is to sacrifice the game on the altar of capitalism. On the other hand, one may perhaps equally see it as means to shield the game from corrupting by outside pressures?
4.
The ‘control of the soul’
Opponents of the use of technologies such as cameras will say that such technologies take away the soul of the game: that mistakes are part and parcel of football refereeing and that the refereeing team is part of the game, not separate from it. But let us think back to the game between England and Germany in the 2010 World Cup. Frank Lampard's shot hits the cross bar and bounces downwards. The whole ball is clearly over the line, but the refereeing team rules no goal. I wonder how many Englishmen took a sigh of relief when seeing the ‘soul of the game’ being preserved on that occasion. Similarly, consider the game between Italy and Australia at the 2006 World Cup. Italy was very generously awarded a 4
See further: Sara Sjolin, ‘Who has the most expensive World Cup squad?’ (MarketWatch, 10 June 2014)
c o m p u t e r l a w & s e c u r i t y r e v i e w 3 0 ( 2 0 1 4 ) 5 6 9 e5 7 3
penalty kick resulting in Australia's departure from that tournament. Few Australians crowded the streets celebrating the win of the soul on that occasion. Numerous other examples can be found. Indeed, most nations and clubs probably have had their special moment of despair. How can we feel aggrieved if we think referee mistakes e not just controversial decisions, but instances where the referee would have come to a different conclusion if provided with video replays e are such an essential and wonderful part of the game so as to indeed be viewed as the ‘soul’ of the game?
5.
‘Don't stop the flow’
Unlike the many stop-start sports, football is a flowing game. Waiting for video referee decisions may then be both annoying and destructive some say. Others think the wait for the decision gives time for special attention being directed at the most interesting situations in the game. These points of view are, of course, subjective, and there can be no expectation that there will be total agreement on the best course forward. However, there is an angle to this issue that is of a more objective nature. One potentially major problem is that in the game of football, played in many countries including in cool weather, delays and stoppages increase the risk of players injuring themselves. This must be considered. However, I think good referees would reserve the use of assisting technologies to the most important situations. The risk of overreliance would have to be dealt with, but I think it could be overcome.
6. ‘Technology could only be used on the highest level anyhow’ Some opponents of technology adoption in football point to the fact that advanced technologies can only be used in the top leagues and top tournaments. Football is, as they stress, a much broader matter than that with a huge number of players on various levels around the world. This, to me, seems like a particularly odd basis for objection. They are certainly correct in their claim that most players never will play in circumstances where advanced technologies are used. But then, most players do not play in circumstances where so much, financially and otherwise, is at stake. In fact, it can hardly be surprising that the level of technology to some extent will correspond to the level of importance of the game at hand. Most importantly, however, is it not already the case that technologies are used in many sports on the higher levels but not on the recreational levels? Consider lines technology in tennis etc. Is there any evidence that the use of lines technologies in professional tennis has caused an outcry amongst the players on the recreational levels? And is it not already the case that many football matches around the world take place under such poor circumstances that both goal posts and lines are lacking? Can that be a reason for the removal of such technologies also in e.g. the World Cup? Surely not.
571
While I have no strong views in either direction when it comes to the potential introduction of technology on the recreational levels, it is worth noting that technology moves quickly and prices often come down already after a few years. I suspect one will be able to purchase some form of Glass technology for a couple of hundred dollars at low price stores in a few years. If e.g. FIFA provides reliable software for such platforms, we may well see the referees in the lower leagues using Glass technology to assist their refereeing soon enough (or too soon if you are in the camp against the use of technology in sports) to assist with matters such as offsides.
7.
The rules of football vs the rules of law
One of the central debates in legal philosophy has been focused on so-called ‘judicial discretion’ e to what extent do, and should, judges enjoy discretion in the judgments they make? Most non-lawyers would probably be surprised at any suggestion that judges exercise discretion in deciding the cases that come before them. But even though there most likely is not a single matter legal philosophers agree upon universally, there is widespread recognition that judges do exercise such discretion. One way of explaining the sources of this discretion goes like this: the facts of a case may be impossible to ascertain with 100% certainty (for example, is a particular witness telling the truth?) and some laws are intentionally, or unintentionally, vague (advertisement is not allowed to be misleading, but what does it take for it to be classed as misleading?). Indeed, law makers often have strong incentives to introduce vagueness into the law e.g. to ensure that the laws remain useful despite technological advances. Consequently, there is not always just one way in which to interpret the facts and/or the law, and the judge must exercise a degree of discretion and chose amongst several possible ways in which to decide the case. Some will see the judges' discretion to interpret vague laws as beneficial in that it may advance the legal system, but few would argue that there are any benefits stemming from the impossibility of, for example, ascertaining whether a witness is lying or not. This distinction is of central importance for the matter under the proverbial microscope in this article. The rules of sports like football may be similar in vagueness to legal rules. Consider e.g. the following FIFA rule5: A direct free kick is awarded to the opposing team if a player commits any of the following seven offences in a manner considered by the referee to be careless, reckless or using excessive force: kicks or attempts to kick an opponent trips or attempts to trip an opponent 5
FIFA, ‘Laws of the Game’ (Fifa.com, 1 March 2014)
572
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jumps at an opponent charges an opponent strikes or attempts to strike an opponent pushes an opponent tackles an opponent
There is no doubt that rules such as these provide a great degree of discretion to referees. For example, the difference between a situation where a player intentionally attempts to ‘trip an opponent’ (an offense) and a situation where the same player merely has innocent contact with that opponent (not an offense) is clearly a matter of degree e we are here in the same grey zone as we find ourselves in when applying many legal rules. Approached from the perspective of legal philosophy, we can note how this rule neatly incorporates the idea of keeping validity separate from (objective) truthfulness. The FIFA rule outlined above expressly focuses on the referee's perception e the free kick is awarded if the referee considers that the act in question was committed in a careless or reckless manner or using excessive force. The authority of a referee is then based on the fact that his decision is valid regardless of its factual grounds e truthfulness of such decision is then totally unrea k, he lated to its validity. Discussing the matter with Dr Polc mentioned a proverb in Czech that may be seen to describe the situation; it says something along the lines of that ‘precision is a prerogative of kings’; meaning that when a king says he arrives at a particular place at 1pm, it simply is 1pm when he arrives even though it, from an objective perspective, may in fact be 9am. Similarly, under the rules of football, an offense is committed when the referee says that an offense has been committed, regardless of what, in objective terms, has transpired. Those committed to the view that any decision of the referee is part of the game and must be recognised as valid under the reasoning above would do well to ask themselves whether following this line of reasoning to its logical conclusion takes them outside their comfort zone; are they, for example, prepared to recognise as valid a decision by the referee that a goal has been scored where the ball in fact has not even entered the penalty area? The better view is that, as recognised e.g. by Hart, what sets a game like football apart from a game of what he calls ‘scorer's discretion’ e a game where everything is in the discretion of the scorer (i.e. the referee) e is that the rules, although they are open to a degree of interpretation, do contain a core of settled meaning6: It is this which the scorer is not free to depart from, and which, so far as it goes, constitutes the standard of correct and incorrect scoring, both for the player, in making his unofficial statements as to the score, and for the scorer in his official rulings. It is this that makes it true to say that the scorer's rulings are, though final, not infallible. The same is true in law.7
6
H L A Hart, The Concept of Law (Oxford University Press, 3rd ed, 2012), at 144. 7 H L A Hart, The Concept of Law (Oxford University Press, 3rd ed, 2012), at 144.
Before proceeding further with the comparison between the role of judges in courts on the one hand and referees on the football pitch on the other hand, we must pause to note one important difference between the two e judges decide a case in its entirety while a referee decides only on more or less marginal issues (was it a foul? was it an offside?). In other words, unless we view referees as sovereigns entitled to rule as they wish without restrictions and with the power to simply decide which team wins the game e a notion most would object to e judges hold a greater discretion to influence the overall outcome than do referees. At the same time, in some circumstances referees can, and do, decide games at least from a practical perspective. Imagine, for example, a World Cup final with one minute left to play and the referee awards a completely baseless penalty kick. Of course, the ball still needs to pass the goal keeper e an act necessarily carried out by a player e but still on a practical level the actual influence of the referee is tremendous. Somewhat similarly, the judge's discretion is of course limited by the facts of the matter brought before him, and indeed, by the potential for appeals. And with the parties to a legal dispute having the ability to hide assets and undertake other measures to prevent enforcement, maybe we cannot see judges' decisions as the end of the matter in legal disputes either; and maybe such decisions are also somewhat marginal in some cases in relation to the overall aim of enforcement of what the winning party seeks. Perhaps the difference between judges' discretion to influence the overall outcome and the discretion held by referees to do so is merely a difference in degree rather than a difference in kind? At any rate, sports such as football enjoy one crucially important advantage over the legal system; that is, football games take place in predetermined locations at which it is reasonable to install advanced surveillance equipment monitoring the game. In sports, we can use technology to find the correct facts to a greater extent than we can in society in general. Although the use of monitoring technologies such as CCTV exists, we are fortunately some way from constant multi-angle monitoring and goal line technology applied to detect e.g. jaywalking. As noted above, few would argue that there are any benefits stemming from the impossibility of ascertaining the facts of a legal matter, for example, ascertaining whether a witness is lying or not. So why would that eagerness to find facts not translate onto the football pitch? Why are we so concerned about decisions being based on facts in a lowvalue dispute between two neighbours, when we are not even attempting to base the decisions in multi-million football games on facts?
8.
Concluding remarks
Maybe it is the case that both our judges and our referees are enjoying too much discretion? Perhaps paradoxically, it may be the case that we have to accept that judges exercise discretion, but maybe we can do more to limit the discretion enjoyed by the World Cup referees. And it is here the cameras and other technologies come into the picture.
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Some will say that cameras do not change the level of discretion; they only leave the referees with a more informed discretion. I think that is wrong. The level of discretion is to a great extent depending on our expectations of the referees, and if they have the benefit of helpful technologies our expectations can be raised and the referees will hopefully rise to the challenge. At any rate, we may here again recall what Hart tells us: Up to a certain point, the fact that some rulings given by a scorer are plainly wrong is not inconsistent with the game continuing:
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they count as much as rulings which are obviously correct; but there is a limit to the extent to which tolerance of incorrect decisions is compatible with the continued existence of the same game, and this has an important legal analogue.8 A lot, including national pride and huge amounts of money, is at stake at an event such as the World Cup. It then seems rather odd that we are not more careful to make sure that the decisions by the referees e decisions that are determinative e are based on facts to the greatest degree possible.
8
H L A Hart, The Concept of Law (Oxford University Press, 3rd ed, 2012), at 144.