Viewing Sports as Legal Systems: A Review of “The Jurisprudence of Sport”

This is a review of the new book by Mitchell N. Berman and Richard D. Friedman, The Jurisprudence of Sport: Sports and Games as Legal Systems.[1] The explicit premise of the book is that sports and competitive games are legal systems. Therefore, inquiries into their jurisprudential aspects prove highly beneficial, just as in every other area of law.[2] The book is, in a sense, a study in comparative law.

The authors do an excellent job creating an engaging experience for the reader. Creative hypotheticals are provided that are equally illustrative and entertaining. Detailed descriptions are given so that both sports fans and non-lawyers will be able to understand and gain a better appreciation for the nuanced intricacies of sports and the law. This concise review provides a small sampling of the comparisons made between sports rules and the law.[3]

The practice of law often involves attempting to provide definitions for vague terms. The book gives an example of this when providing potential definitions for “sport.” As with areas of U.S. law, such as defining what pornography is,[4] it is difficult to come up with a perfect definition of what a sport is. The International Olympic Committee’s view that “sport is physical exertion in the conduct of competition”[5] is clearly overinclusive, as it would encompass activities such as barroom brawling.[6] The more limited definition from the National Collegiate Athletic Association (“NCAA”), which requires the activity to be institutionalized, is still overinclusive because it would include activities such as warfare.[7]

Neither similarity between sports and the law is how the law generally bans ex post facto legislation, which is legislation that punishes behavior retroactively.[8] However, problems arise when determining exactly what constitutes a retroactive punishment. For example, a new law that retroactively imposed requirements on convicted sex offenders was upheld on the ground that it was less of a punishment and more of a regulation.[9] The authors discuss this same issue of retroactivity as it applies to the rules of sport along with how much advance notice should be required.[10] For example, in the 2013 America’s Cup Regatta, a rule change regarding boat design was implemented mid-season after a crash resulted in the death of a crew member.[11] Some teams protested, and the America’s Cup Jury ultimately rejected the last-minute rule change.[12]

Related to the issue of retroactive punishments is the issue of legacy exemptions. Major League Baseball allowed seventeen pitchers a lifetime exception to the 1920 spitball ban since they were already established “spitballers.”[13] The National Hockey League excluded all existing players from the new helmet requirement in 1979.[14] This is similar to how legislation sometimes “grandfathers” certain people or businesses from compliance into newly passed legislation or administrative requirements.

Sports rules are viewed by some as merely imposing a cost for certain behavior—and more specifically, only for being caught performing certain behavior.[15] Such a person would view a basketball player intentionally fouling an opponent toward the end of a game as a perfectly acceptable strategy to increase the odds of winning. Others view the rules as imposing duties, obligations, requirements, and prohibitions.[16] The same dichotomy applies to the law. Some view criminal and civil law as more transactional. Such a person would likely maintain that saving $10,000 by cheating on their taxes is a strategically advantageous act if there is only a twenty percent chance of getting caught and having to pay a total of only $15,000 as punishment.

A law that does not effectively communicate what behavior is to be prohibited or required is unconstitutionally vague and therefore “void for vagueness.”[17] The need for rules in sports that are clearly understood is also important.[18] For example, what exactly constitutes a pitcher in baseball “unnecessarily delay[ing] the game”?[19] What exactly is meant by the NCAA’s standard regarding which reversals of a referee’s call would have a “direct, competitive impact on the game”?[20] And what exactly was meant by the National Football League (“NFL”) requiring “indisputable visual evidence” to reverse a call?[21]

There are different theories of legal interpretation that can lead to disparate results in the law. For example, a Supreme Court Justice who subscribes to an Originalist theory may reach the opposite result of one who subscribes to a Living Constitutionalist theory. This same principle applies to the interpretation of rules in sport. For example, when a Pittsburgh Steelers player suffered concussion-like symptoms in 2011, he called his wife from the sidelines to tell her he was fine.[22] This was met with a $10,000 fine from NFL commissioner Roger Goodell, who cited an NFL rule prohibiting the use of cellular phones on the sidelines.[23] Here, Goodell was interpreting the rule in a textualist manner rather than a purposivist one.[24]

The instance of a presidential candidate winning the electoral college—and therefore the presidency—while losing the popular vote has happened five times.[25] This is similar to occurrences in sports, such as the 1960 World Series, in which the Pittsburgh Pirates won despite being outscored 55 to 27.[26] The authors engage in an interesting discussion as to whether such results are fair, considering that, in both instances, the parties were aware of the rules that determined victory.[27]

Sports and the law frequently must make determinations regarding the linkage between conduct and results. In law, this comes in the form of “Did the assault result in the victim’s death?” and “Did the breach of contract result in the business losing its most valuable customer?” In sports, the quarterback of the team ahead by three points with one second left who trips and fumbles the ball, allowing the opposing team to score, can be said to have caused the loss. After all, “but-for” his actions, his team would have won the game.[28] As is often the case in law, applying principles of causation is not this simple. Perhaps that quarterback’s stellar performance up to that point is the main reason they were in the position to win with one second left. Perhaps the running back should have been able to easily tackle the player who recovered the fumble and scored, thus preventing the loss. And what about the player earlier in the game who also fumbled and allowed the other team to score?

The issue of precedents and super-precedents frequently comes up in modern Supreme Court appointment hearings.[29] There are also analogies to this issue in sport. For example, in response to the infamous 2018 pass interference no-call between the New Orleans Saints and the Los Angeles Rams, the NFL implemented an experimental pass interference review whereby the Senior Vice President of Officiating located at the New York command center could overturn such calls or no-calls.[30] The experiment is widely regarded as a failure because the standard for reversal was set so high.[31] Only one out of thirty-three challenges was overturned.[32]

The mental state of a defendant is often important in the legal system—an exception is when strict liability applies. Nuanced examples include deciphering the difference between “purposefully” and “knowingly” and the difference between “deviations” from a standard of care and “gross deviations” from that standard of care.[33] Similar distinctions are present in sports where the adjudicator has the additional burden of making such decisions immediately, with imperfect information, and in a high-pressure environment. For example, FIFA Law 12 stipulates that if tripping an opponent is the result of being “careless,” then it is not punished, but if it is the result of being “reckless,” then it is punished.[34] A related similarity exists between laws and sports rules in that both have strict liability offenses. For example, the World Anti-Doping Agency punishes athletes for ingesting prohibited substances even if they were unaware that they did.[35]

The issue of collective versus individual sanctions comes up in many sports. A yardage markoff in football due to an offside penalty punishes the team collectively. Ejecting a basketball player for a flagrant foul punishes the individual but imposes indirect costs on the team, who loses a player. And fining a baseball player may only penalize the individual. Criminal punishments generally focus on the individual and not the collective. However, incarceration can impose tremendous indirect costs to others, such as family, employers, and taxpayers.[36]

The law applies different burdens of proof in different situations. These include “beyond a reasonable doubt,” “clear and convincing evidence,” and “preponderance of evidence.”[37] The referees of sporting events must also know the level of certainty required to penalize a player. In Cricket Law 31.6 if, after consulting with another umpire, “there is still doubt remaining, the decision shall be Not out.”[38] The NFL stipulates that “[i]f there is any question by the covering official(s) as to whether a forward pass is complete, intercepted, or incomplete . . . it always will be ruled incomplete.”[39] Elsewhere, the NFL applies the burden of proof in the opposite direction. “If in doubt . . . , the covering official(s) should always call unnecessary roughness.”[40] One could imagine sports regulators engaging in a Blackstone’s-Ratio-type discussion, considering whether it is better to let two flagrant fouls go unpunished than to unjustly punish an innocent player with a flagrant foul.[41]

The similarities between legal and sport burdens of proof continue. There is evidence to suggest that in sports and the law, adjudicators adjust the applicable burden up or down to provide the desired result. For example, studies show that baseball umpires are less accurate when there are either three balls or two strikes but not when the count is three balls and two strikes.[42] When there are two strikes and the ball is in the strike zone, umpires are significantly more likely to call a ball.[43] Conversely, when there are three balls and the pitch is outside the strike zone, umpires are significantly more likely to call a strike.[44] In other words, umpires adjust their error rates to avoid incorrectly issuing strikeouts and walks.[45] Likewise, research has discovered a similar principle in applying the beyond a reasonable doubt standard in criminal cases. Mock jurors significantly increased the threshold of what constitutes reasonable doubt when confronted with a sympathetic defendant accused of a largely victimless crime, thus allowing for an acquittal based on the beyond a reasonable doubt standard.[46]

A “makeup call” is something familiar to most sports fans. It is when an official, recognizing that he made a bad call earlier in the game, makes a later call in an effort to mitigate the harm done from the initial bad call. Some believe that a similar practice occurs in law.[47] For example, perhaps the rules of evidence seem to unfairly disadvantage the plaintiff in a civil action. The judge may, subconsciously or otherwise, sustain a future objection by the plaintiff in an effort to make up for the past hardship. Another, more long-term, example of a legal makeup call is that of O.J. Simpson. It is widely believed that the peculiarly harsh thirty-three-year sentence he received for armed robbery in 2008 was to make up for allegedly getting away with murder in 1994.[48]

Sports and the law are not only related through similarities in regulating behavior. The authors draw attention to illuminating examples of direct interaction between sports and the law. For example, in 1996, Senator John McCain referred to mixed martial arts as “human cockfighting” and was nearly successful in his efforts to have the sport banned.[49] Ironically, this led to the Ultimate Fighting Championship embracing regulation that led to a sharp rise in popularity.[50] Another example is an Associated Press reporter who accused an NBA referee of a makeup call being sued for defamation.[51] The case settled for $20,000.[52] In rare occasions, law and sports rules are not just similar but apply to the same act. For example, National Hockey League player Todd Bertuzzi pled guilty to criminal assault after punching Steve Moore from the opposing team.[53]

The authors also discuss other, miscellaneous connections between sports rules and the law. For example, there is an interesting discussion regarding Chief Justice John Roberts’s sports analogy of the proper role of a judge: “Umpires don’t make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ball game to see the umpire.”[54]

The authors include modern topics, such as the moral implications of how the NCAA considered estimates of deaths due to COVID-19 if the 2020–2021 college football season was not cancelled.[55] Colorful hypotheticals are used, such as that of a law professor who moonlights as a Ultimate Fighting Championship judge.[56] The book is an entertaining, thought-provoking read that will help the reader gain a better appreciation for both sports and the law.

[1] Mitchell N. Berman & Richard D. Friedman, The Jurisprudence of Sport: Sports and Games as Legal Systems (West Academic 2021).

[2] Id. at v.

[3] Note that, while the authors occasionally reference a non-U.S. legal system, all references in this book review are to U.S. law.

[4] Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring). “I shall not today attempt further to define the kinds of material I understand to be [pornography]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.” Id.

[5] Berman & Friedman, supra note 1, at 10.

[6] Id.

[7] Id.

[8] U.S. Const. art. I, § 9, cl. 3.

[9] Smith v. Doe, 538 U.S. 84, 102 (2003).

[10] Berman & Friedman, supra note 1, at 78–80.

[11] Id. at 78–79.

[12] Id.

[13] Id. at 79.

[14] Id.

[15] Id. at 466–68.

[16] Id.

[17] Johnson v. U.S., 576 U.S. 591, 595 (2015).

[18] Berman & Friedman, supra note 1, at 93.

[19] Id. at 93–94.

[20] Id. at 436.

[21] Id. at 438.

[22] Id. at 95.

[23] Id.

[24] Id. at 98.

[25] Id. at 133.

[26] Id. at 125.

[27] Id.

[28] Id. at 208.

[29] See, e.g., Marcia Coyle, Hunting for ‘Super Precedents’ in U.S. Supreme Court Confirmations, Constitution Daily (Oct. 20, 2020), https://constitutioncenter.org/blog/hunting-for-super-precedents-in-u.s-supreme-court-confirmations#:~:text=One%20constitutional%20scholar%2C%20Michael%20J,a%20significant%20period%20of%20time..

[30] Berman & Friedman, supra note 1, at 430.

[31] Id.

[32] Id. at 430–31.

[33] Id. at 211.

[34] Id. at 211–12.

[35] Id. at 317.

[36] Id. at 220.

[37] Id. at 369.

[38] Id. at 370.

[39] Id.

[40] Id.

[41] Blackstone’s Ratio, Cato Inst., www.cato.org/policing-in-america/chapter-4/blackstones-ratio (last visited Sept. 21, 2021). Blackstone’s ratio states that it is better to let ten guilty people to go free than to imprison one innocent person. Id.

[42] Berman & Friedman, supra note 1, at 375.

[43] Id.

[44] Id.

[45] This effect is so significant that it results in an effective strike zone 188 square inches larger on 3-0 pitches than on 0-2 counts. Id. at 375–76.

[46] Michael Conklin, Reasonable Doubt Ratcheting: How Jurors Adjust the Standard of Proof to Reach a Desired Result, 95 N.D. L. Rev. 281, 285 (2021).

[47] Berman & Friedman, supra note 1, at 393–96.

[48] David K. Li, ‘This Was Payback’, N.Y. Post (Oct. 4, 2008), https://nypost.com/2008/10/04/this-was-payback/ .

[49] Berman & Friedman, supra note 1, at 86.

[50] Id. at 87.

[51] Id. at 397.

[52] Id.

[53] Id. at 224.

[54] Id. at 360–61.

[55] Id. at 90.

[56] Id. at 397.