Duke Law Professor Joseph Blocher’s argument that NFL instant replay reviews should reconsider on-field calls de novo has resulted in an extensive debate. The Wall Street Journal law blog has a list of various links here. I endorsed Blocher’s argument in this post. There has also been a response by Josh Patashnik of the New Republic, which the WSJ survey didn’t include.
I still maintain, along with Blocher, that de novo review would increase the accuracy of calls at little or no cost to other important objectives. Some of the critics claim that instant replay calls aren’t likely to be any more accurate than those made on the field. This strikes me as extremely unlikely. An official in the instant replay booth can review the play from several different angles over the course of a minute. By contrast, an on-field call must often be made based on a split second glance. Even the best referees will sometimes have trouble figuring out exactly what happened. Moreover, as Blocher points out in his response to the critics, the NFL can certainly install more and better cameras in order to increase the accuracy of instant replay decisions still further. I am also unpersuaded by arguments that switching to de novo review would somehow undermine respect for NFL officials or lead to a breakdown of player discipline. Everyone already knows that NFL referees, like all sports officials, sometimes make mistakes; certainly the players and coaches know it. If anything, reducing the incidence of mistakes should increase respect for the system by both fans and players. And, as I noted in my original post, switching to de novo review won’t make games appreciably longer by increasing the number of instant replay challenges issued by coaches, since the rules give each coach only two challenges per game.
Finally, I am not persuaded by Patashnik’s interesting argument that fans who believe their team has been victimized by an incorrect call will feel greater anguish if the call is an instant replay overturning of an on-field decision, applying de novo review:
Suppose a very close call goes against your team on the field, is challenged, and is upheld because the evidence is inconclusive, even if you think you have a slightly better claim. That’s annoying, but you can chalk it up to the ordinary difficulties of making close calls–something all sports fans are used to having to deal with–and at least you don’t feel like you got totally ripped off....
But suppose instead a very close call goes for your team on the field, is challenged, and is overturned even though the video evidence is inconclusive. That outcome, I think, would cause most fans significantly more anguish than the first scenario described above. In part, this is because of settled expectations–once the call goes for you on the field, you begin to internalize the outcome, and the loss of that benefit exceeds in magnitude the gain in utility you would get by having a marginal call reversed to go in your favor. But perhaps more important, by reversing the outcome, it draws attention to the arbitrariness of the call in the first place. If, after such thorough examination, the call is reversed to go against you even though it’s not clear that’s the right outcome, you feel cheated in a new way: the exhaustive legal process has affirmatively placed its seal of approval on the arbitrariness. That’s something unique, and something most sports fans aren’t used to dealing with [it]...
In my view, concerns about the exact nature of the process are only a tiny fraction of the pain fans feel when they think a bad call has gone against them. In any event, I think any small increase in hurt feelings is likely to be outweighed by increases in the accuracy of calls — to say nothing of the joy of the fans whose team wins the instant replay challenge.
byomtov says:
Maybe I don’t understand the fine points of what is meant by “de novo” but I find the first sentence of Patashnik’s second paragraph puzzling.
But suppose instead a very close call goes for your team on the field, is challenged, and is overturned even though the video evidence is inconclusive.
Why would it be overturned if the evidence were “inconclusive?” Surely then the field official’s call should stand. That call, after all, is based on some information not available on video. If the video doesn’t have enough information to make a call the field official’s view should be decisive, no? byomtov(Quote)
Crunchy Frog says:
This is why football should be played by athletes, and not by lawyers. Crunchy Frog(Quote)
Ilya Somin says:
This is why football should be played by athletes, and not by lawyers.
Athletes play the game, but lawyers make the rules:). Ilya Somin(Quote)
B.D. says:
I think the argument for de novo review is strengthened by the fact that the officials reviewing the tape are the same ones who make the calls on the field. I mean, whose judgment are they deferring to? They know what they saw, and changing their mind on review cannot really be viewed as a rebuke or a sign of disrespect.
My suspicion: if officials upon reflection think they probably messed up the call but the video evidence is not overwhelming or conclusive (or whatever the standard is), they will usually overturn the call on the field. Realistically, there is not nearly as much deference for the call on the field as the standard suggests. But deference gives them cover for when they don’t want to make a tough call on review that might cause considerable controversy. Their credibility is at stake, so it makes sense for an official to be able to tell an aggrieved coach that his hands are tied.
I think it’s a workable system. Formally switching to de novo review could unrealistically raise expectations on the part of teams and, most importantly, the fans. B.D.(Quote)
SuperSkeptic says:
Well, even if one is persuaded by all of your arguments before this final point, one wonders why only give them two challenges per game (and a third, of course, if both are correct)? Why not Four, Five, Six, or Unlimited? At that point, why not keep all reviews to the booth, like college? This would considerably slow the game, of course, is the answer. But the system you’ve just created practically begs for this, it seems to me. SuperSkeptic(Quote)
Dave Hardy says:
What good is this without a right to appeal? “Officials call a time out, as interlocutory relief is sought.” Dave Hardy(Quote)
Alan Jeffries says:
What’s even more absurd about the limitation of instant replay in the NFL is how it made it on this high minded blog. Alan Jeffries(Quote)
Gov98 says:
What I really want to know if how many Angels can dance on the head of a pin. Gov98(Quote)
Suzy says:
Why is de novo review a good idea in the first place, though? The review exists only to prevent obviously bad calls from being made. Otherwise, we assume that the refs on the field are capable of judging the match. When they aren’t certain, then they can consult another source of evidence. If the video evidence is inconclusive, then the ref who was actually standing on the field making an observation should have the final say in the matter. Only when there is some reason to doubt his call do we need review, so it makes sense to have a higher standard of evidence to overturn the initial ruling. Why pretend that we do not already possess the judgment of an expert, when conducting a review? Suzy(Quote)
Ilya Somin says:
Well, even if one is persuaded by all of your arguments before this final point, one wonders why only give them two challenges per game (and a third, of course, if both are correct)? Why not Four, Five, Six, or Unlimited?
The answer is simple. Two reviews per game is enough to address mistakes on the most important calls, while avoiding any major increase in the length of games. Ilya Somin(Quote)
Ilya Somin says:
If the video evidence is inconclusive, then the ref who was actually standing on the field making an observation should have the final say in the matter. Only when there is some reason to doubt his call do we need review, so it makes sense to have a higher standard of evidence to overturn the initial ruling. Why pretend that we do not already possess the judgment of an expert, when conducting a review?
It’s true that the ref on the field is an expert. But the ref who looks over the instant replay is an expert with a better view of the play and more time to consider his call. Therefore, he is more likely to get it right. Ilya Somin(Quote)
Suzy says:
Why must we assume that the replay provides a better view, though? If the ref on the field could have a better view, then we need to account for that by initially favoring his judgment until evidence counters it. If the ref viewing the replay really does have a better view, and the call was wrong, then by definition there will be evidence to overturn the initial call.
In either case, what does de novo review actually accomplish for us, or change, that is not going to be accomplished with the present method? It seems that the only thing it does is discount the initial judgment of the ref on the field, without any good reason to discount the weight of that judgment. Suzy(Quote)
Dan M. says:
I’d rather get screwed by an inconclusive initial call than to have an inconclusive call overturned against me.
Take the WVU/Cincinnati game of a few weeks ago if anybody watched. Cincinnati’s running back dove for the end zone and lost the ball. The refs on the field called it a fumbled with WVU recovering. Upon review, it was changed to a touchdown. The video seems inconclusive to me. The player was reaching out the ball, losing control of it, it came close to the goal line, maybe touched it, and he lost it. The refs claimed it was conclusive.
Maybe I’m just pissed not because an inconclusive call was overturned, but because it was essentially claimed that the touchdown was clear based on video review, which was untrue. If preponderance of the evidence were the standard, I might have accepted it more readily, because I certainly hate it when refs pretend something is conclusive when it clearly is not. Dan M.(Quote)
Apperception says:
Anyone who’s seen an actual game knows that de novo review already occurs. Apperception(Quote)
Strict says:
Byomotov and Suzy make good points.
What if the video doesn’t show what happened (inconclusive)?
How would de novo review work?
“The play is being challenged, the original call gets no deference, and since the video doesn’t show what happened, the play results in...????”
The refs are FORCED to make a new decision, based EXCLUSIVELY on what the video shows, and if the video doesn’t show it, then ?? Strict(Quote)
Dominick says:
This all assumes that, in reality, instant replay isn’t being done de novo. I know what the official rules say, but I watch a lot of football games, many that do not involve my favorite hometown team. I have seem any number of replay challenges where the video evidence is the very definition of “inconclusive” and yet the ref will come out and reverse the call on the field. I have, by contrast, only seen a couple of calls where the ref upholds the call for the express reason that the video was inconclusive. I agree that the standard should be de novo — but I think the “change” is that the league should simply admit that de novo review is what is actually occurring and stop trying to pretend that the ref is reviewing the replay video with any amount of deference to the call on the field. Dominick(Quote)
Dominick says:
I don’t see why that is some sort of bar to the use of de novo review. In any case, both in court or in the context of instant replay, you have de novo review of certain judgments. While de novo review means that the original decision does not get any official deference, it does not mean it is completely ignored as if it doesn’t exist — appellate judges know what was in the lower court opinion and what the lower court judge(s) believed was the correct outcome and that opinion goes into the mix along with the arguments made by the parties, amici, etc. in the course of the appellate level case. If an appellate court reviews a legal question de novo, and the arguments are particularly close and the court is not sure, they are free to say that they are persuaded by the opinion of the lower court and they may choose to adopt parts (or all) of that opinion and its reasoning.
Likewise, while the ref under the hood would have to make a new decision without deferring to the on-field call, he is not precluded from taking into account that the field official believed that he saw the play come out a certain way. You could look at the call on the field as a kind of 6th (or 7th or 8th) replay angle — part of the series of data points that the ref considers in making the final call. My guess is that in those situations where the replays available leave the ref saying “I have no clue what happened here” his natural inclination will be to reason that “the guy on the field has as good a case as any, I will just go with that.”
However, how many cases will there be where the replays really leave a ref unable to make a call — either he can see, for example, the ball hit the ground before it was secured, or he can’t. If he can’t see the ball hit the ground, I don’t see how he could decide that it did. The chance that there will be chaos because the replays will leave refs completely unable to make any call seems slim, and no more likely than under the current regime when there are really close calls. Dominick(Quote)
Strict says:
Dominick,
Isn’t the record in a court case different from the “record” (video) in the game?
The record in a court case includes an opinion and explanation, but in a purely de novo review in football, it’s strictly the video. If you are giving deference to (or are being “persuaded by,” as you say), the original decision, that’s not really de novo in the football context, even though it would be in the court context where the judge could say “the original opinion persuades me and I agree.”
My assumption here is that the “record” in football is exclusively the video. If it includes descriptions and opinions of the other refs, then I’m wrong and you’re right. Strict(Quote)
Duffy Pratt says:
They should get rid of interlocutory video reviews except in very, very rare cases. Instead, teams should be allowed to certify plays for review after the game. That review would occur in a Sunday night show. With enough popularity, the show could move to several days during the week. During those shows, the appellate judges would decide whether error had occurred on the field, and if so, whether the error was harmless or not. These judges would have the power to either affirm or reverse the outcome of the game. (I like the idea of remands as well, but that may not be practical.) Duffy Pratt(Quote)
AK says:
Agree with Strict & byomtov, generally. Ball carrier is running down the field. He’s tackled as he nears the goal line. The call is a touchdown. Play is reviewed. No camera angle provides evidence sufficient to make a conclusive decision. If the call on the field doesn’t enjoy a presumption of correctness, what’s the call, down by contact, or touchdown?
Two more points:
–Limiting the number of challenges at two (or three) is silly. What should be limited are the number of unsuccessful challenges. If the officials keep screwing up, the wronged team should not be limited in its relief.
–Review should be conducted by a panel of three officials, none of whom made the original call. Much is gained, I think, from discussing the play. Unanimity is required to overturn the call on the field. AK(Quote)
Soronel Haetir says:
Ilya,
I think you make a major mistake believing that a good camera angle will be present for every disputed call. Even goal line where I believe a camera is positioned already there may well be bodies in the way. The official on the field on the other hand is supposed to move to keep the best possible coverage of the developing play. Soronel Haetir(Quote)
TomB says:
What we really need is for Congress to pass some legislation on this matter. They’re already provided much needed guidance in the NCAA. This is a problem that is up there with health care and CO2. Serious business. TomB(Quote)
byomtov says:
It’s true that the ref on the field is an expert. But the ref who looks over the instant replay is an expert with a better view of the play and more time to consider his call. Therefore, he is more likely to get it right.
He doesn’t have a better view if the video is inconclusive. More viewing angles are not necessarily better than one when you are looking for a single thing. byomtov(Quote)
Suzy says:
While we’re on this subject, could someone please take care of abolishing the BCS in favor of an 8-team sudden death playoff system? Suzy(Quote)
Crunchy Frog says:
I’d go a 12-team tourney with 4 first round byes, with 2 week regionals at the Rose, Fiesta, Sugar, and Orange sites. Final Four (football style) to take place at shiny new Texas Stadium.
How could this fail to make money? Crunchy Frog(Quote)
Suzy says:
That works for me too. It would be awesome. Suzy(Quote)