Eliana Fleischer1Eliana Fleischer is a J.D. Candidate at the University of Chicago Law School, Class of 2024. She thanks Matthew Makowski, Cheridan Christnacht, Annie Kors, and the University of Chicago Law Review Online team. She also thanks her first readers, Julie Fleischer and Barry Fleischer.
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The 2022 FIFA World Cup is in full swing, and while no one knows what the results of the games will be, we do know one thing: no matter who wins, there will be people mad at the referees. It’s a constant in all sports that people—fans, players, and coaches alike—will take issue with referees’ decisions. Soccer has its fair share of high-profile referee mistakes, and given the ubiquity of cameras in soccer stadiums these days, everyone watching the game from home can see when the referee botches a call. As one official with the International Football Association said, “With all the 4G and Wi-Fi in stadia today, the referee is the only person who can’t see exactly what is happening and he’s actually the only one who should.”
The governing body in charge of soccer’s rules, the International Football Association Board (IFAB), has recently responded to this criticism by implementing a technological solution to increase the accuracy of the officiating: Video Assistant Referee (VAR). VAR is conducted by a team of at least three people who watch the game in real time from a video operation room with several monitors that show different camera angles of the game. Despite the potential for VAR to “help referees and to achieve fairer outcomes,” it has failed to eliminate controversial and game-changing referee decisions. I argue that this failure stems from improper standards of review. Borrowing from the standards of review used by judicial appellate courts, I argue that different categories of VAR review require distinct standards of review to match the subjectivity of the referee’s decision and the informational asymmetry between the referee and VAR. Implementing these more tailored standards of review will preserve VAR’s accuracy while reducing the controversy around it.
I. Judicial Standards of Review
Our judiciary is a hierarchical system in which the losing party in a case can appeal a court’s final decision to a higher court. In both state and federal systems, appellate courts have strict procedures under which they review decisions made by trial judges. There are three standards of review that appellate courts apply when scrutinizing lower courts’ decisions, and each one is determined by the level of deference the appellate judge must afford to the trial judge’s conclusion.2For a summary of judicial standards of review, see generally Martha S. Davis, A Basic Guide to Standards of Judicial Review, 33 S.D. L. Rev. 469 (1988).
The most exacting standard of review is called de novo review. When an appellate court reviews a question under this standard, it disregards the decision of the lower court entirely and comes to its own conclusion. De novo review is applied to pure questions of law. The rationale behind such review is that any judge is capable of making a legal determination, so there is no reason for the lower court’s decision to bind or sway appellate judges to a particular outcome.
The next level of scrutiny is the clearly erroneous standard of review. Unlike de novo review, when an appellate court reviews a decision under the clearly erroneous standard, it must give substantial deference to the conclusion of the lower court. The Supreme Court’s definition demonstrates the weight that must be placed on the lower court’s decision: “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” This standard of review applies to findings of fact determined by a trial judge. The theory underlying the clearly erroneous standard is that trial judges have a greater understanding of the facts than the reviewing appellate judges. For example, trial judges hear witness testimony, which allows them to factor witnesses’ body language and tone into their factual determinations. Appellate judges, by contrast, must review the facts of each case from transcripts. Given this informational asymmetry, it makes sense to bind appellate judges to the trial judge’s factual decision unless, based on the evidence, it is clear that the trial judge’s conclusion was incorrect.
Finally, the most deferential standard of review is the abuse of discretion standard. Throughout the process of litigation, there are many incremental decisions that must be made by the trial judge in order to keep the case moving forward. In these situations, legal rules do not definitively dictate correct decisions. Hypothetically, if two trial judges were to adjudicate the same case, they could disagree on these discretionary decisions without either one being objectively “wrong.” Because of this, an appellate court can only overturn a trial court’s decision on these matters when it finds that the trial judge abused their discretion in making the decision.
II. The Operation of VAR
Before addressing how VAR operates, it must be noted that there is one important difference between VAR review and judicial review. In the judicial system, once a case is appealed to a subsequent court, the lower court no longer controls the case. Sometimes a higher court will remand the case back to the lower court with instructions for how to apply the law, but even when that occurs, the trial judge cannot reject the appellate court’s instruction. The relationship between VAR and the center referee is different. Although it may be unwise for the center referee to ignore VAR’s advice, the referee is still the final arbiter of an officiating decision: “VAR has the same status as the other match officials and can only assist the referee.”
Despite this difference, the judicial framework of appellate review is still a useful comparison point because VAR serves a quintessentially appellate role in the referee’s decision-making process. There are two procedures through which VAR is involved in the game’s officiating. In the first instance, the referee makes a decision on the field, and then VAR reviews that decision. Alternatively, if the referee misses a serious incident, VAR can recommend to the referee that a review is needed. Although the center referee has full authority over the final decision, in both of these procedures, VAR undertakes a review of the referee’s decision—either a call or no call—similar to how an appellate court reviews the decision of the trial judge.
VAR has limited jurisdiction—to continue borrowing language from the judicial system—meaning it cannot review every decision a referee makes. VAR only has the authority to review decisions related to four specific events: (1) goals, (2) penalty kicks, (3) direct red cards, and (4) cases of mistaken identity. Any fouls that occur outside the penalty area that are not involved in the build-up to a goal or are not flagrant enough to warrant a direct red card are not reviewable decisions.
According to its protocol, VAR can only review an incident for a “clear and obvious error” or “serious missed incident.” When VAR indicates to the referee through their headset that they made an officiating mistake, the referee can change their call to VAR’s recommended decision without any further review, or—as occurs more frequently—the referee can undertake their own review with the same footage VAR used to determine that a mistake was made. There is no time limit on the referee’s review of the incident, and usually after a minute or two, the referee signals whether the original call stands or is overturned.
III. Recommendations for VAR’s Standard of Review
To the IFAB’s credit, there is a stated standard of review which VAR must apply to its review of the referee’s decisions. However, the “clear and obvious error” standard is not accurately calibrated to each of the incidents that VAR has jurisdiction to review. Just as the judicial system has different standards of review based on informational asymmetry, soccer should implement discrete standards of review based on the subjectivity of the decision and the information that VAR has for each incident under review.
VAR’s first area of jurisdiction concerns goals. There are many different aspects of goals that can be reviewed by VAR. For example, sometimes it is hard to tell in the moment whether the ball fully crossed the goal line. Still, the center referee must make a decision on the field—either to call a goal or to let the play continue. Because there are exact goal-defining rules, and VAR has access to more information than the referee—it can slow down the footage and see the possible goal from multiple angles—the referee’s decision should be awarded no deference. In other words, when VAR reviews whether a goal was scored, it should perform the analysis de novo, rather requiring clear evidence that the referee’s decision was mistaken. VAR can make a more accurate decision than the referee, and determining whether a goal occurred has an objective right answer. For these reasons, a referee’s decision of whether a goal was scored should be reviewed by VAR de novo.
VAR might also review a foul in the lead up to a goal. Foul calls are more subjective in nature; they are not as bright-line as goal line decisions. For example, if a field player deliberately manipulates the ball with their hand, it is a foul, but if the ball hits a field player’s hand while it is in a position that “has not made their body unnaturally bigger,” it is not a foul. VAR can review such an incident, but slow motion often cannot definitively show whether a player’s hand is in a position that makes their body unnaturally bigger—that determination will be shaped by the decision-maker’s opinion. Because the referee must decide subjectively whether a foul was committed, the on-field decision should be afforded deference and should be reviewed by VAR for clear and obvious error.
B. Penalty Kicks
Similarly, VAR’s second area of jurisdiction, penalty kick calls, should be scrutinized using a different standard of review based on the circumstances of the incident. If the question on review is whether the foul occurred inside the penalty area or just outside the lines, then an objectively correct answer exists. Because VAR has more information than the center referee, the call should be reviewed de novo. In contrast, if the question is whether the action committed was really a foul, the answer will be subjective and the clearly erroneous standard should be used. VAR should be required to find enough evidence to be “left with the definite and firm conviction that a mistake has been committed” in order to recommend overturning the referee’s foul decision.
C. Direct Red Cards
VAR’s third area of jurisdiction is over direct red cards. If a player is shown a direct red card, then they are sent out of the game, and their team must play the remainder of the game with one fewer player. The center referee can choose whether to award a direct red card or a yellow card, which only cautions a player. The referee’s decision to award a red card rather than a yellow card is entirely subjective. The rulebook provides some guidelines but is not exhaustive. Even in a case in which the rulebook is explicit, it can still be difficult to determine what conduct falls under a yellow card versus a red card. For example, the rulebook requires the referee to take disciplinary action when an object is thrown. If the object was thrown recklessly, the player should be cautioned with a yellow card. If it was thrown using excessive force, the player should be awarded a direct red card and sent out of the game. VAR can repeatedly watch the footage of a player throwing an object, but repetitive viewing often does not provide an objectively correct answer for whether the object was thrown recklessly or with excessive force. Therefore, because the rules are vague and the decision is fundamentally subjective, these decisions should be reviewed with the utmost deference to the center referee’s call: under the abuse of discretion standard.
D. Cases of Mistaken Identity
VAR’s fourth area of jurisdiction is over any decision in which the center referee makes a mistake of identity. This is most commonly a situation in which the referee awards a yellow or red card to the wrong player. Similar to goal line decisions, these scenarios have an objectively right and wrong answer that is discernable from video footage. It would be nonsensical to afford any deference to a referee’s mistaken identity decision. In cases of mistaken identity, VAR should simply correct the center referee’s mistake by reviewing the decision de novo.
Scrutinizing the standards of review for video-based sports officiating using principles borrowed from the legal system is not new, nor confined to soccer. Professor Mitchell Berman has published scholarship about what he terms the “jurisprudence of sport,” and has argued elsewhere for football to abandon its “indisputable visual evidence” standard for overturning referee decisions. His proposals for change involve adjusting the standard of review across all referee decisions, in contrast to my tailored approach.
Soccer is unique among other sports in that it only has two natural stoppages—at halftime and at the end of the game. Unlike baseball or football, which had implemented technology to assist in officiating decisions far earlier, soccer is a continuous game where frequent or prolonged pauses are discouraged. Adopting VAR represents a tradeoff that soccer players and fans are willing to make: the stoppages take a little longer, but the officiating decisions are a little more accurate. Because it only checks decisions that will substantially affect the outcome of the game, VAR does not significantly slow down soccer games. However, the import of the moments that VAR reviews means any wrong or unclear decision it makes will result in angry fans. In order to fulfill its role of “avoid[ing] scandals” without “creat[ing] something in [soccer] that’s constantly interruptive and destroying the game,” VAR should be more discerning in the standards of review it applies to each of the incidents it has jurisdiction to review. Factoring in differing levels of deference to the center referee’s decisions based on the subjectivity and informational asymmetry involved in each decision will result in fewer controversial reversed decisions while preserving the accurate review of decisions with objectively correct answers. By explicitly implementing these standards of review, VAR can continue to improve the game of soccer with minimal backlash.
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Eliana Fleischer is a J.D. Candidate at the University of Chicago Law School, Class of 2024. She thanks Matthew Makowski, Cheridan Christnacht, Annie Kors, and the University of Chicago Law Review Online team. She also thanks her first readers, Julie Fleischer and Barry Fleischer.