When it comes to what’s fair in sports, there are the rules, and then there are the Rules.
The best officials are ones shrouded in mystery. An official should be just as much an observer as an actor, allowing the players’ athletic prowess to dominate the action. However, once an infraction occurs, officials are agents, not spectators. If the game enters a critical juncture, some believe referees ought to be predominantly spectators, allowing the athletes to determine the outcome.
It is this attitude—that referees should “swallow their whistles” at the end of games—that’s the subject of law professor Mitchell Berman’s latest paper, “Let ‘em Play: A Study in the Jurisprudence of Sport”. There are two positions fans often take, one being that athletes—not the referees—ought to determine the outcomes of games, even if it means allowing penalties to go unpunished. Others believe the timing of the penalty isn’t important. Why should it matter whether a violation occurs at the beginning or the end, if it’s the same violation?
Berman makes a convincing case for referees to swallow their whistles. Rules are instituted so that the athletic traits we desire are showcased as much as possible. We don’t allow defenders in basketball to push a ball-handler driving to the basket because we covet quickness, coordination, and deception as opposed to brute force. I use the term “we” because rules evolve as we discover what is fair and desirable and what is not; rules have changed over time, often informally, to make games as fair as possible.
But, there is a difference between what is written in the rulebook and what is fair. As Berman aptly explained via email, “You know the expression ‘the map is not the territory?’ Well, the same is true of rules. The written text that sets forth or announces a rule is not itself the rule. A rule is an abstract entity.”
He goes on to detail the difference between a rule (lowercased) and a Rule (capitalized). A rule is what is written down—a holding penalty will result in a 10-yard loss and replay of the down—whereas a Rule is the recognition that anyone could bear-hug a pass rusher to prevent him from sacking the quarterback, which would put the rusher at an extreme disadvantage. When we debate whether referees should swallow their whistles, we are debating the Rule, not the rule. Obviously, the rulebook doesn’t allow for referees to ignore holding penalties in the last minute of the game. But, our conceptions of fairness and our desire for athletic excellence both demand that we appeal to the idea of the Rule, which evolves over time.
Rulebooks try to reflect our notions of fairness. Penalties are punishments that try to rectify the unfair advantage one side gains. The popular phrase “the punishment must fit the crime” is a bit misleading; in order for a punishment to be effective, it must exceed the crime so it acts as a deterrent. If someone steals $100, and the punishment is a $100 fine, then the punishment has not deterred the offender from trying again tomorrow. Generally, the punishment must make the offending party slightly worse off than before the infraction.
But in sports, the degree of punishment is largely a factor of the time remaining in the game. At the beginning of a match, the outcome is essentially uncertain. In theory, both sides have a 50-percent chance of winning. As the game progresses, we get a better idea of who will win through obvious cues like the score, the time remaining, the execution of each side, and so on. Because of these developments, the same punishment can have drastically different effects at the beginning and the end of contests.
Consider the Week One game between the Cowboys and Redskins last year: the Cowboys scored a game-winning touchdown with four seconds left, except Alex Barron was called for holding, forcing a 10-second runoff and costing the Cowboys the game. Essentially, the official changed the outcome of the game from a Cowboys victory to a Redskins victory with that one call. But, surely an identical holding penalty occurred earlier that had a much weaker impact on the game.
Remember, a punishment should exceed the crime enough to deter future infractions. But, there is a certain injustice if the same holding penalty in the first quarter results in a 10-yard penalty and replay of the down, versus completely switching the outcome if it occurs late in the game. After all, the goal of sports, on its most fundamental level, is to win the game, so penalties should make the offending party slightly less likely to win. When considering penalties as a function of win-probabilities, why should literally the same act elicit two different penalties?
That is why referees often swallow their whistles. In the Redskins-Cowboys game cited above, the holding penalty was clear, egregious, and directly affected the play (since Brian Orakpo likely would have disrupted the play before the ball was thrown). In fact, the penalty was a fair one, since if it hadn’t been committed the Cowboys would almost certainly have lost the game. In this case, the punishment (certain loss) slightly exceeded the crime (holding to prevent a highly probable loss).
But consider a foggier case. We all remember the Helmet Catch from Super Bowl 42, in which Eli Manning evaded the pass rush, heaved a ball into the middle of the field, and David Tyree pinned the ball against his helmet. (Note to editor: please don’t post the video for my own sanity. (Ed.’s note: I would never. Check out these fun Patriots highlights instead!)) There is a rich debate as to whether the Giants’ offensive linemen committed holding on the play. The point here is not whether they did or didn’t, but whether such an infraction should have been enforced.
It seems inherently wrong for a penalty—designed to merely set the offense back 10 yards—to drastically affect their chances of winning the Super Bowl. The penalty is clearly not meant to cripple an offense, since they get a chance to replay the down. So isn’t it against the spirit of the law to do exactly that?
A rulebook is not a holy text handed down from the Commissioner on High. The rulebook is the written form of the Rules, and it is those ideas of fairness and athletic achievement to which we ought to constantly appeal. A cornerstone of the Rule of Law is that punishments for similar actions remain constant. Conversely, unpredictable punishments are commonly associated with tyranny.
Sports aren’t tyrannical; in fact, they’re the complete opposite. They exhibit our most basic notions of fairness, specifically tailoring games to isolate the variables of athleticism and determination. Perhaps too idealistically, sports are meant to be the result of perfect fairness. Despite popular conception, fairness doesn’t come from the rules, they come from the Rules. That is to say, fairness comes from us, which is precisely what makes it fair.