In the aftermath of VAR’s shambolic outing in Tottenham’s FA
Cup meeting with Rochdale in February, Mark Thompson (@EveryTeam_Mark) penned a
thought-provoking
piece on the need to look at the laws of the game in the same way as
the laws of the land. It argued that the rules laid down by the FA are
open-textured, and that different valid interpretations are possible within the
broad ‘statutory’ limits. This is perfectly true – as the famous professor of
jurisprudence H.L.A Hart observed, it is an inevitability of the nature of
language that rules will admit of more than one meaning. Further, even when the
‘plain meaning’ reading of a rule is clear, the context may change its
application. However, this comparison suffered as a result of the absence of
anything in football akin to precedent: once a rule is interpreted by a referee
in one way, it is not applied consistently thereafter.
As such, within the context of a critique of VAR, the
parallels between law and the rules of football were imperfect. Nonetheless,
there is undoubtedly merit in drawing the comparison. The Video Assistant
Referee technology most resembles a legal mechanism known as judicial review –
this allows courts to check the decisions of officials and strike them down
where appropriate. In this scenario, the official is the matchday referee: much
can be learned about the legitimate scope of VAR by looking at the grounds upon
which courts will interfere with administrative decisions.
The three broad grounds for judicial review, as spelled out
by Lord Diplock in the case of GCHQ, are illegality, irrationality and
procedural unfairness. The latter two are of only limited use in a footballing
context. Procedural unfairness could certainly never function as a basis for
overturning an on-pitch official’s decision – the referee is under no
obligation to explain the process by which he arrives at a call, and provided
it is correct there can be no prospect of a video referee overturning the
decision. In other words, any review conducted by VAR is bound to be
substantive. This still leaves open the prospect of irrationality; the standard
of reasonableness review has changed over time, but it now broadly resembles
the doctrine known as ‘proportionality’. This dictates that any decision must
be a justifiable way of furthering a legitimate aim in order to be upheld.
Perhaps this could be used to assess the validity of refereeing decisions taken
in order to ‘let the game flow’, or to pursue other such abstract goals, but
once the call of a referee is legal on its face it is generally unlikely to be
sufficiently irrational to warrant being overturned.
Illegality is thus by far the most useful concept to
consider in relation to VAR, and it moves closer to the points touched upon in
Mark Thompson’s initial piece. However, the video referee is not best thought
of as an appeal judge looking afresh at the meaning of the relevant law; he is
conducting judicial review, examining whether the referee’s decision was one
that was appropriate for him to make. When will a referee’s decision be ‘illegal’?
Are all decisions that are adjudged to be incorrect inherently beyond the
authority of the referee, or do the laws of the game act as empowering statutes
that give each referee a degree of discretion? These questions have been
considered in the context of judicial review, and the answers that have been
given shed some light on the extent to which VAR should interfere.
Judges are always wary of conducting what is known as ‘de
novo’ review. Their role is not to ‘substitute judgment’, replacing their own
opinion for that of the initial decision maker – rather they must decide on the
validity of the first-instance decision-maker’s actions. Prior to a case called
Anisminic, only decisions that were outside the jurisdiction of the
official in question would be overturned; this is patently too deferential to
function in a footballing context, where all of the decisions made by a referee
are his to make even if he gets them wrong. Ultimately, it was adjudged to be
too deferential for judicial review as well – error of law is now a valid
ground for interference. However, this leaves the question of how to define an
error of law. The reviewing court cannot simply look at the decision afresh,
apply the law as they see it to the facts and foist this verdict upon the
initial decision-maker; this would amount in practice to de novo review.
Rather, they must take as their starting point the initial decision, and ask
whether that falls within the scope of the relevant statute.
This is a tightrope. The court (VAR) are not asking whether
the original decision is plausible – if an interpretation is understandable but
nonetheless wrong it must still be struck down as illegal. Rather they are
asking whether, given the open-textured nature of the law touched upon earlier,
the decision can be called wrong at all. Thus, a video referee may disagree
with an on-field referee’s call, but nonetheless reach the conclusion that the
relevant law admits of both conclusions. Wherever this is the case, VAR should
leave the original decision intact. This is not the crude ‘clear and obvious
mistake’ standard often bandied about by pundits; it is a standard that
advocates correction of all mistakes, but a narrow conception of what is meant
by ‘mistake’. Just as in a legal context
the case-load concerns and the desire to uphold the legitimacy of
administrative bodies warrants giving the original decision-maker some space
within which to operate, the need to keep games flowing and respect the
position of the referee necessitates a degree of deference from VAR.
Particularly where a decision hinges on standards of ‘recklessness’ or
‘dangerousness’, it is unlikely that a decision could genuinely be called
wrong: indeed, Jones v First Tier Tribunal involved the issue of
recklessness and returned the verdict that reviewing bodies should be slow to
find an error of law.
It is often said that VAR comes into its own when there is
an objectively verifiable mistake of fact that needs to be corrected. As luck
would have it, this is the precise standard required by judicial review in
order to intervene based on an error of fact (E v Home Secretary).
Provided a factual error that played a material part in the original decision
can be shown, the law says that it is justifiable to overturn that decision.
This is where VAR can thrive; in the world of judicial review objectively
verifiable errors of fact are a relative rarity, but video technology is
excellent at providing such verification in a sporting context. Thus, from a
purely legal perspective, there can be few complaints with VAR’s correction of
factual mistakes.
In summary, the debate as to the proper extent of VAR bears
a striking resemblance to that relating to the appropriate extent of judicial
review. This comparison paints the referees as decision-makers empowered by the
laws to make decisions; these should only be offset where it can genuinely be
said that a decision goes against those laws, or where it has been taken on the
basis of a mistake of fact. Whether the footballing context calls for more or
less deference, or even for no review at all, is a question that cannot be
answered purely by drawing parallels to law - nonetheless, the legal framework
provides a good starting point for discussion as to what exactly VAR is trying
to achieve.
