Some people think that the constitutionality of the individual health care mandate is the most important legal issue of the day. But others clearly believe that it is the question of whether instant replay review of NFL referee calls should be conducted under a de novo standard. For those interested in this crucial issue, Texas lawprof Mitchell Berman has written a particularly thorough statement of the case for a de novo standard in this article on Slate.
I defended the same position in much lesser depth here and here. The second of my previous two posts on this subject has lots of links to arguments on both sides by other legal scholars. No one can say that we legal academics ignore the truly vital questions of the day.
Dave N. says:
Of course it should be de novo review. The replay official is clearly looking at a mixed question of law (what is the applicable rule?) and fact (did a player perform a certain act?). Appellate panels typically review such mixed questions de novo.
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December 24, 2009, 2:13 amRoger says:
Of all the instant replay arguments I’ve heard, this is surely the silliest, the most lawyerly, and the most contrary to what fans would want. Are you sure this article is not a joke?
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December 24, 2009, 2:52 amTRE says:
Clearly Congress can mandate that instant replays use de novo review.
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December 24, 2009, 3:26 amMitchell Berman on the Instant Replay Debate | Liberal Whoppers says:
[...] the original: Mitchell Berman on the Instant Replay Debate Share this [...]
Shag from Brookline says:
If this comes to pass, perhaps the stock prices of beer makers may rise. In addition, gamblers will get involved betting on the outcomes of instant replay. And CBS’s “60 Minutes” may start much later than 7:00 PM EST. And De Novena prayer groups may activate around the TV. By the way, should the decisions on instant replay be made by one person or should there be a committee that might vote 5–4, with dissents aired?
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December 24, 2009, 7:59 amPersonFromPorlock says:
Well, I’m not a lawyer but on the other hand I’m not a football fan either, so I suppose the two balance out and leave me qualified to comment: since the replay shows the play and not the refereeing (other than incidentally), how can it be used except de novo?
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December 24, 2009, 8:04 amShelbyC says:
A couple points:
1. The percentage of successful challenges is likely to reflect the expected payoff of a challenge, not the accuracy of the standard of review.
2. I’m not sure it’s worthwhile to try to determine whether or not the official in real time or the official looking at the camera has a greater or lesser level of uncertainty. So it may boil down to this: If the call of the guy looking at the instant replay is a guess, and the call of the guy on the field may be certain or may be a guess, we go with the guess of the guy on the field. Not terribly unreasonable.
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December 24, 2009, 8:05 amApperception says:
Is, uh, anyone going to point out that the standard already is de novo? The rule may not be written that way, but it’s how the officials decide the calls. Perhaps what we want is just a clarification that, yes, we WANT you to keep ruling the way you’ve been?
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December 24, 2009, 8:05 amShelbyC says:
Maybe somebody already pointed this out, but the above analyses are premised on the assumption that the goal is to produce correct calls. It is not. The NFL is in the entertainment business, and the goal is to produce customer satisfaction with the product. Customers likely to be unhappy with both indisputable video evidence of bad calls, and seemingly arbitrary overturning of uncertain calls based on a de novo standard.
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December 24, 2009, 8:17 amSome dude says:
As a casual NFL fan, I did not know there was anything wrong with the system. Overturning a call on the field is a fairly drastic measure so they better be sure.
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December 24, 2009, 9:20 amMike Keenan says:
The major problem with the current system is that it takes too long. This would make that worse. I thought the goal was to correct obviously wrong calls. It seems to do that well.
“Getting the call right” is taking it a little too seriously.
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December 24, 2009, 10:03 amDaniel Chapman says:
There are more eyes on the field than there are (official) camera angles. Without “conclusive” video evidence, the assumption is that the ref must have seen something that the video didn’t.
It’s similar to an appellate court’s assumption that the trial judge was there to observe things like the demeanor of the defendant. It doesn’t make much sense to overrule a decision based on less information than the original decision-maker had.
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December 24, 2009, 10:28 amRedman says:
The ruling on the field should stand unless a super majority of the officials in the booth vote to overturn it.
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December 24, 2009, 10:44 ambasher20 says:
One problem not addressed: In many cases, the referee is reviewing calls that e himself made, most often QB fumble/incompletion on the tuck rule or grounding/incompletion on QB in the tackle box. What I would like to see, since under NFL policy all officials are in theory equally qualified, that the umpire be called into the review booth when challenges are made to calls made by the referee.
The other issue I have with a strict de novo standard is that there is no limit on the referee to the challenged issue; that is, if the question is reciever inbounds at the time of the catch, could the referee decide there was pass interference?
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December 24, 2009, 10:45 ammikeyes says:
I suspect that no one other than we geeks are all that interested in either issue. But if you had to quantify it, the NFL issue would predominate at a 1,000,000:1 ratio. Or more.
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December 24, 2009, 10:49 amDaniel Chapman says:
Pass interference is not a reviewable issue, Basher. So the answer to your question is “no.”
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December 24, 2009, 10:52 amShelbyC says:
Not under the current system. But why not, under a de novo standard?
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December 24, 2009, 11:29 amDaniel Chapman says:
Would a touchdown be worth 8 points under a de novo standard?
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December 24, 2009, 11:36 amShelbyC says:
Well, if they used it to determine a successful two-point conversion. :-).
My understanding is that the purpose of moving to a de novo standard would be to make the calls more correct. Allowing a call of pass interference while reviewing a catch would furthur that goal, no? But I’m not sure how making a touchdown worth 8 points would.
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December 24, 2009, 11:51 amDaniel Chapman says:
Whatever... I’m going to go back to writing my Christmas wish-list for Favre to break his hip and ignore this discussion...
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December 24, 2009, 12:11 pmDuffy Pratt says:
The quest for accuracy in football never ceases to amaze me. Think about the lengths they go to with the chains to determine whether a team has made a first down or not. Then think about the margin of error when the chains are first put down (probably plus/minus six inches), and the margin of error every single time the officials spot the ball (more like plus/minus two feet). But when it comes to whether there’s a first down or not, the measurement is done to with a thousandth of an inch.
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December 24, 2009, 12:30 pmSome dude says:
Yes there is an element of error and chance in spotting the ball and placing the chains. But, in the end, there has to be a decision made which benefits one team or the other. What are they going to do, eyeball it and declare if it looks close enough for a first down? Who gets the benefit of the doubt? There needs to be more closure than that, so the spot and chains are used imperfect as they are.
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December 24, 2009, 2:15 pmRailroad Gin says:
The purpose of the replay isn’t really to ensure that every call is made correctly. Rather its more to safeguard against completely boneheaded calls that simply don’t make any sense whatsoever. So the idea is that a patently bad call can be overturned while not wasting undue time on calls that can go either way. Its the basically the same reason why appellate courts still use the abuse of discretion standard even though with modern technology, they could theoretically review every decision of a trial court de novo. There is also a harmless error factor in the replay system —the game-winning touchdown gets more heavily scrutinized than some midfield play three minutes into the game.
The previous system used in the late 80s gave more discretion to the reviewing official. The result was constant breaks in the game so the ref could spend 10 minutes examining a play only to announce “after further review the play stands.” It was a huge waste of time and became a running joke. The current system is designed so that the game gets underway in a couple of minutes. If the call was truly that bad, they should be able to figure it out in a minute. If not, play ball.
There are arguably some flaws in the current system as far as when challenges can be made and the penalties for losing a challenge. But IMHO, the standard of review is one thing the NFL got right with the new system.
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December 24, 2009, 3:41 pmFedya says:
Except of course, when a referee overturns an obvious fumble that he called a fumble on the field, and then says it was an incomplete pass, as the referee in the Steeler/Packer game did.
(The officials didn’t call a bunch of blatant holding by the Steeler OL, either, but that’s not subject to review.)
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December 24, 2009, 6:02 pmRyan Waxx says:
I do not know weather de novo review is appropriate, but am totally certain this is Obama’s fault, somehow.
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December 24, 2009, 7:36 pmDaniel Chapman says:
Fedya: Yeah I loved the holding that was going on, especially on the last play of that game. There was a guy literally hanging off of Cullen Jenkins’ neck and no one else between him and Roethlesberger.
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December 24, 2009, 8:55 pmChad says:
Ilya, I’m an avid football fan who has no objection whatsoever with a policy of de novo review, and I would further support said review of the play in its entirety rather than just the specific aspect requested by the coach in his challenge.
However, are you certain the present system hasn’t steadily eroded toward a de novo standard in practice? I remember when referees would either reverse the call or they would say “there is insufficient video evidence to reverse the call on the field.” Now they either reverse the call or they say “the call on the field is confirmed,” usually adding specific reasoning for their call. Although I’d prefer that this be codified in the rulebook, it seems though the way the referees are actually behaving now is pretty close to your stated preference.
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December 24, 2009, 8:58 pmShag from Brookline says:
Maybe SCOTUS Justices can serve “on circuit” at Sunday NFL games to put CJ Roberts’ approach on judging on display — no clerks, just make the decisions based on instant replays. (Might their robes have horizontal stripes to differentiate them from officials on the fields?)
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December 25, 2009, 7:15 amFedya says:
I think the change in policy comes from the Steeler-Charger regular-season game last year, when Pittsburgh, leading 11–10, returned a fumble for a touchdown on the final (desperation on the part of the Chargers with multiple laterals) play, only for the referee to go into review and call one of the laterals an illegal forward pass.
It didn’t change the outcome of the game (the Steelers would have won in either case), but a lot of people were irritated because the reversal changed whether or not the Steelers covered the point spread.
I remember getting an earful on one football board because I said how happy I was that people stupid enough to wager on football were jobbed out of their money. :-)
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December 25, 2009, 9:05 amGary Rosen says:
They *had* “de novo” review at one point and it was such a nightmare that they dropped it altogether, bringing replay back only when a game with playoff consequeces was decided by an obviously wrong call. Actually, as Apperception notes, the standard is already “de novo”. If the evidence is not “incontrovertible”, then how does it improve accuracy?
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December 26, 2009, 1:10 amSteve2 says:
The solution for that isn’t in fiddling with replay, it’s with fixing the incomplete pass rule. If the quarterback loses the ball while a defender’s in contact with him, it should be a fumble unless it crosses the line of scrimmage, period. The whole idea of “his arm was moving forward, so the ball that went out of his hand sideways while the linebacker’s hand was on his throwing elbow is an incomplete pass” is ludicrous — but it’s in the rules right now.
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December 27, 2009, 12:43 am