Author Archive | Prof. Mitch Berman (University of Texas), guest-blogging

“Let ’em Play”: Concluding Thoughts

I started on Monday with a puzzle – what might be said in favor of enforcing at least some rules of sports less strictly at crunch time? – and tried to develop a solution. That solution turned out to be two solutions, or two variants of a single solution.

All competitive sports, I have claimed, share a core interest that the outcomes of contests reward competitors’ relative excellence in the performance of the sport’s fundamental athletic tests. To further this interest, each sport has reasons – weighty but not decisive – (1) not to enforce penalties on infractions when, for contextual reasons, the penalty would be unusually over-compensatory, and (2) to sometimes disregard the rule-like form or surface of some norms in favor of the standard that underlies it.

These arguments are tentative and partial, only first steps toward a solution to the puzzle. But whether they ultimately justify the temporally variant enforcement of particular rules of particular sports, all things considered, is not greatly important to me. Think of this study as a search for what Robert Nozick called a philosophical explanation: not a defense of the thesis that temporal variance in sports is optimal, but an account of how that could be.

Philosophical explanations are not always the right goal. Often we want to know what some agent should do. In this case, however, I’m satisfied to identify factors and analytical devices that might prove useful for theoretical projects across reaches of law and sports.

For example, the analyses here might helpfully illuminate the lost chance doctrine in torts; the granting of equitable relief, near contest’s end, from rules governing municipal and corporate elections, or appellate litigation; the difference between genuine “jurisdictional rules” and mere claim-processing rules; and possibly much else.

Those are just promissory notes at this […]

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“Let ’em Play” — Day 4: Of Rules and Standards

Recall Tuesday’s contention: Competitive sports go better, all else equal, insofar as contest outcomes reflect the competitors’ relative excellence in executing the particular athletic virtues that the sport is centrally designed to showcase, develop and reward. Call this “the competitive desideratum.” If something like this is so, then we should identify the athletic challenges that the rules governing tennis serves are designed to hone and test.

To a first approximation, the challenge is to strike the ball with power and accuracy into a specified space. Yet serving while standing at the net would not conform to the athletic challenge that tennis service is meant to present. So a refinement is necessary. Perhaps this: the challenge is to strike the ball into a precisely defined space from a precisely defined distance.

Notice that if this is the best understanding of the athletic challenge presented by serving in tennis, then temporally variant enforcement of foot faults would not serve the competitive desideratum. If it’s constitutive of a core athletic challenge in tennis to hit the serve without touching the line, then to forgive a server’s having stepped on the line would frustrate that athletic ideal and would contravene the competitive desideratum.

But perhaps that is not quite the athletic challenge that the service rules embody. Perhaps the challenge is better formulated as the ability to serve the ball into a precisely defined space from a generally defined distance. That is, notwithstanding that the formal rules specify both the starting point and the landing space with precision, the underlying athletic challenge that the rules codify involves a precise target but a general launching site. […]

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“Let ’em Play” — Some Responses to Comments

First, let me thank the many readers who have commented these past few days. I did not know what to expect when I accepted Eugene’s invitation to blog about my article, and have been impressed by, and grateful for, the number and incisiveness of the comments. Unfortunately, there have been too many to permit me to respond in a systematic manner, let alone in a comprehensive one. So here are a mess of somewhat random reactions. […]

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“Let ’em Play” — Day 3: Of Constitutive and Regulative Rules

At first blush, we might suppose that the analysis I provided yesterday applies, mutatis mutandis, to foot faults in tennis and therefore that tennis officials should call foot faults less strictly at crunch time. But this conclusion would be premature. It could be that foot faults in tennis differ from fouls and similar infractions in basketball, football and comparable sports in ways that make a difference.

I’ll explain today why I believe that foot faults do differ in a way that matters. Tomorrow I’ll argue that temporal variance in their enforcement might nonetheless be defensible on alternate grounds.  This afternoon I will respond to some of the many excellent comments already posted by VC readers.

The analysis I presented yesterday for temporal variance in the enforcement of penalties for fouls like those committed in basketball depended upon the claim that there are times when it might better serve the objectives of competitive sports to refrain from enforcing a penalty despite the occurrence of an infraction. That’s because the competitive costs of an infraction and of the sanction or penalty that it begets are both temporally variant and the latter can become, at game’s end, very much greater than the former.

Yet assessing the competitive costs of these two things – the infraction and the sanction – seems impossible in some cases. Take balls and strikes in baseball. The denomination of a pitch as a “ball” is not properly conceptualized as the penalty for an infraction; the concepts of infraction and penalty just don’t apply here.

That not all undesired consequences that attach to nonconformity with the dictates of a rule are sanctions imposed for infractions was a central claim upon which Hart relied when critiquing the Austinian command theory of law. […]

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“Let ’em Play”: A First Solution

Although the Serena Williams episode provoked my interest in the puzzle of temporal variance, I’ll start not with tennis, but with other sports in which a practice of temporal variance might seem more secure – sports like football, hockey, and basketball. In each, whistles for minor physical contact toward the end of tight contests predictably elicit a cry from the stands: “Let ‘em play!” or “Swallow the whistle!”

Though the plea is familiar, its rationale is obscure. To be sure, the tighter the rules are enforced, the less physical contact there will be. And observers may reasonably disagree about the level of physicality that makes a sport the best it can be.

But however a league might answer that question, it is not self-evident why the optimal degree of laxity should differ in crunch time during an NBA game relative to ordinary time, or throughout the NHL playoffs relative to the regular season. It is not obvious what can be said for “letting them play” at this particular time different in character or force from what can be said generally for “letting them play.”

Still, basketball remains a good place to start. I doubt that many tennis fans are justifiably confident that tennis officials do (or don’t) allow players a little more foot faulting toward the end of close matches than earlier. Maybe they do (or don’t), but foot faults just aren’t called enough to permit those without intimate knowledge of the sport to be sure what the enforcement patterns are.

Basketball is different. That basketball referees respect some measure of temporal variance seems clear to many hoops fans. Maybe that’s because the case for temporal variance in basketball is unusually clear. (Or maybe not.) If we can explain and justify slack in the calling of basketball fouls, we might […]

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“Let ’em Play”: Overview

Many thanks to Eugene for inviting me to discuss my just-published paper “Let ‘em Play”: A Study in the Jurisprudence of Sport, 99 Geo. L.J. 1325, in this forum. I’m grateful for the opportunity and look forward to your comments.

Recall the women’s semifinal of the 2009 U.S. Open, pitting Serena Williams against Kim Clijsters. Having lost the first set, Williams was serving to Clijsters at 5-6 in the second. Down 15-30, Williams’s first serve was wide. On Williams’s second service, the line judge called a foot fault, putting her down double-match point.

Williams exploded at the call, shouting at and threatening the lineswoman. Because Williams had earlier committed a code violation for racket abuse, this second code violation called forth a mandatory one-point penalty. That gave the match to Clijsters.

Williams’s outburst was indefensible. But put that aside and focus on the fault. CBS color commentator John McEnroe remarked at the time: “you don’t call that there.” His point was not that the call was factually mistaken, but that it was inappropriate at that point in the match even if factually correct: the lineswoman should have cut Williams a little slack. Many observers agreed. As another former tour professional put it, a foot fault “is something you just don’t call – not at that juncture of the match.”

The McEnrovian position – that at least some rules of some sports should be enforced less strictly toward the end of close matches – is an endorsement of what might be termed “temporal variance.” It is highly controversial. As one letter writer to the New York Times objected: “To suggest that an official not call a penalty just because it happens during a critical point in a contest would be considered absurd in any sport. Tennis should be no […]

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