“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 exception.” On this view, which probably resonates with a common understanding of “the rule of law,” sports rules should be enforced with resolute temporal invariance.

Perhaps McEnroe was wrong about Williams’s foot fault. But the premise of the Times letter – that participants and fans of any other sport would reject temporal variance decisively – is demonstrably false. One letter appearing in Sports Illustrated objected to the disparity of attention focused on Williams as compared to U.S. Open officials, precisely on the grounds that “[r]eferees for the NFL, NHL and NBA have generally agreed that in the final moments, games should be won or lost by the players and not the officials.”

Regardless of just how general this supposed agreement is, many NBA fans would affirm both that contact that would ordinarily constitute a foul is frequently not called during the critical last few possessions of a close contest and that that is how it should be. So insistence on rigid temporal invariance requires argument not just assertion.

However, advocates of temporal variance shouldn’t be smug either. For while the negative import of temporal variance is clear – the denial of categorical temporal invariance – its positive import is not. Surely those who believe that Williams should not have been called for a fault implicitly invoke a principle broader than “don’t call foot faults in the twelfth game of the second set of semifinal matches in grand slam tournaments.”

But how much broader? Is the governing principle that all rules of all sports should be enforced less rigorously toward the end of contests? Presumably not. Few proponents of temporal variance would contend that pitchers should be awarded extra inches around the plate in the ninth inning, or that a last-second touchdown pass should be called good if the receiver was only a little out of bounds. So even if categorical temporal invariance is too rigid, the contours and bases of optimal temporal variance remain to be argued for.

“Let ‘em Play” is an attempt to think through this problem. My goal is not to establish whether and in what respects temporal variance is optimal, all things considered, for any given sport. That’s too darn hard.

My goal at this early stage is merely to figure out whether “sense can be made” of such a practice. Instead of trying to determine conclusively just what optimal practices should be, I aim only to explain why temporally variant rule enforcement might be sensible – what can plausibly be said for it.

Furthermore, investigating temporal variance in sport is only the paper’s surface agenda.

While econometricians are busily tackling sport, and while philosophers of sport occasionally draw on legal philosophy (in addition to, e.g., aesthetics, ethics, and metaphysics), legal theorists have paid sports only passing attention. Most jurisprudential appeals to sports and games have been ad hoc, and most legal writing on sports that does not pertain to sports law is intended more to entertain than to edify.

The lack of sustained jurisprudential attention to games, and sports in particular, should surprise, for sports leagues constitute distinct legal systems. This is superficially apparent to non-Americans. While baseball, football, and basketball are governed by official “rule books,” the most popular global team sports like soccer, cricket, and rugby are all formally governed by “laws,” not “rules.” More substantively, sports systems exhibit such essential institutional features as legislatures, adjudicators, and the union of primary and secondary rules.

Accordingly, my grander ambition is to help spur the growth of the jurisprudence of sport as a field worthy of more systematic attention by legal theorists and comparativists. In a sense, “Let ‘em Play” does double duty as a manifesto for an enlarged program of jurisprudential inquiry.

Importantly, it’s not just that (municipal) legal systems and sports systems confront similar challenges. For several reasons, jurisprudential attention to sports is particularly likely to contribute to our understanding of phenomena and dynamics shared in common.

First, because sports’ rules and practices have long been thought unworthy of serious philosophical investigation, even low-hanging fruit has yet to be harvested. Second, sports supply vastly many examples for the generation and testing of hypotheses. And third, our judgments and intuitions about certain practices – such as, to take the present topic, the propriety of context-variant enforcement of rules – are less likely in the sports courts than in the courts of law to be colored or tainted by possibly distracting substantive value commitments and preferences.

For all these reasons, sporting systems, though rarely explored with seriousness by legal theorists and comparative lawyers, comprise a worthy object of legal-theoretical study.

Here’s my plan for the remainder of the week. Tomorrow, I will summarize my prima facie case for temporally variant enforcement of non-shooting fouls in basketball and, by extension, of similar violations in other sports. In a nutshell, that argument depends upon a growing gap between the competitive cost of the infraction and the cost of the sanction imposed for the infraction.

On Wednesday, I will explain why the argument that might explain and justify temporally variant enforcement of fouls in sports like basketball, hockey, and football most likely does not cover the rules governing faults in tennis. On Thursday I will propose a different account that might fill that need – one that draws on what I think are novel observations about the hoary rules/standards distinction.

On Friday, I will advance a modest proposal for improving the world’s most popular sport.

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