Thursday, 18 October 2018

VAR and the Law

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.

Friday, 5 October 2018

Salah: Stick or Twist?

Mohamed Salah’s mercurial form last season saw him finish not only as the Golden Boot winner and record goal-scorer in a 38-game season, but as the highest scoring player ever in a Fantasy Premier League season. In response, the powers that be slapped a 13-million-pound price tag on his head for the 2018/19 campaign. Many managers – over 2.4 million of them, in fact – did not think twice about splashing 13% of their budget on the Egyptian. After all, if he even came close to replicating last season’s numbers he would repay the investment in kind. So far, however, he does not look like the Salah of 2017/18. A number of squandered chances has left many people’s patience running thin, but the big question is this: stick or twist?

Let’s start by looking at the raw numbers. After seven games last season, Salah had netted four times in the league and assisted two further goals. Arsenal and Manchester City were the stand-out games in a relatively kind run; this allows for a near-direct comparison to this campaign, where Liverpool’s fixture list has thrown up tough clashes against Chelsea and Spurs in amongst some more routine matches. In these seven games, Salah has notched three goals and two assists: the numbers are nearly identical to last year. Of course, the missed chances last season could be explained away as a period of adaptation for Salah at his new club – with this excuse no longer available, it is natural to ask whether this relatively pedestrian start by Salah’s high standards is set to continue beyond the opening few games. However, it is at the very least reassuring for Salah owners that he is pretty much on par with the start he made to his record-breaking campaign.

It is also true that Salah’s squandering of big chances is nothing new. It was well-publicised, mostly by jealous opposition fans, that Mohamed Salah missed the most clear-cut chances out of anybody in the league last season – he was scoring for fun, but was missing his fair share too. This started from the very first game at Watford, where he probably should have had a debut hattrick; it is a product of Liverpool’s high-octane attacking play. There were fantasy managers at the time who were scared away by this wastefulness, but they were quickly made to rue it. A huge part of Salah’s appeal lies in his movement and unerring ability to get on the end of chances. The most important question is whether he has continued to do so this season. He undoubtedly has: the wastefulness that has so frustrated his owners in FPL is equally a sign that he is still doing everything right bar the finishing. This is little consolation to those who have seen a damning ‘4’ by the name of their captain for three of the last four weeks, but it should discourage these owners from selling. Every indication is that the goals will soon come.

This theory is backed up by the upturn in Liverpool’s fixtures in the near future. While it has not been the most taxing start ever faced, Klopp’s side have had the toughest fixtures of any of the top four so far. A difficulty calculation based on league positions puts Liverpool on seventy-five points, while Chelsea are on 60 and City sit on a mere 45.  After they face their biggest test yet at the weekend against Guardiola’s men, things start to look a lot more promising for Liverpool in terms of points potential. A run of Huddersfield, Cardiff, Arsenal, Fulham and Watford is about as good as it gets for Klopp’s side – each are set up with vulnerabilities just waiting to be exploited by Liverpool, and any one of those matches could plausibly end up with the Reds netting four or five. Even after this, a sequence of Watford, Everton, Burnley and Bournemouth awaits: the points potential here is perhaps slightly less huge, but the difference is marginal. If there was a time to sell Salah, it was surely three weeks ago rather than on the cusp of one of the kindest runs any top side will ever face.

However, there are of course valid concerns about hanging on to Salah. Most of them are the same ones that existed before a ball was even kicked – £13 million is a huge proportion of the budget, and there might well be better ways to spend it. The goalscoring form of Sadio Mane makes him a viable alternative for a saving of around 3 million, while Eden Hazard is scoring excellently for Chelsea. Kevin de Bruyne’s return will provide another premium option, and Raheem Sterling appears to be a regular in City’s setup once more after a relatively gradual reintroduction to the team following World Cup duty. Equally, sacrificing Salah for a more budget midfielder is one obvious way of accommodating both Kane and Aguero up front: experience teaches us that this is a pretty reliable front two. There is no easy answer, just as there was no one correct way of doing things right from the start: what is clear is that if Salah is to be rejected on the basis of his relative lack of value, it should not be a decision informed too heavily by his relatively steady start.

There is one fresh concern that has only arisen since the start of the new season, and which may be enough to tip the balance for some people in favour of getting rid of Salah. Rotation of Liverpool’s front three was already likely around European matches, particularly since they acquired more depth in the squad over the course of a positive summer. Specifically, Xherdan Shaqiri’s arrival from Stoke posed a minor risk to the reliability of Salah’s league minutes – this was only a slight concern, however, given that the man dubbed the Egyptian King seemed nigh-on undroppable based on his form from the end of the last campaign. This is no longer the case, as seen by Klopp’s withdrawal of Salah after 65 minutes against Chelsea. Perhaps even more significant is the remarkable renaissance of Daniel Sturridge. His recent form demands game time, and over the course of the kind run of league games he is bound to be handed some starts; this could be at the expense of any one of the front three, or else in a 4-2-3-1 that accommodates all of them, but there is no denying that his resurgence places more question marks than ever before over the safety of Salah’s consistent place in the side. On its own this concern is not great enough to prompt owners to sell, as Salah will surely continue to feature in the vast majority of games, but it is another thing to think about when weighing up the various pros and cons.

On the whole, it would be wise for Salah owners to give him at least a few more weeks. His underlying performances promise a glut of goals before too long, and a very kind run of fixtures might be precisely what is needed to get him back on the sort of form that saw him priced at £13 million in the first place. The fact that others are panic-selling only increases his appeal – Salah as a differential is an exciting prospect. There are many tempting ways of spending the savings from leaving him out, and some of these alternatives may end up being the better way forward, but even with all of his misses it is a fairly safe bet that Salah will ultimately deliver for those that keep him.

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