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.

A Step Too VAR? How Video Technology Can Perpetuate Further Injustice

It was an historic moment. Leicester’s Kelechi Iheanacho had the ball in the back of the net, and wheeled away in celebration only to find the flag raised. On any other day, this would have dashed his hopes of doubling The Foxes’ lead and putting the FA Cup third-round replay against Fleetwood to bed. Not on this occasion: this was a fixture in which the ‘video assistant referee’ was being trialled, and Mike Jones duly informed on-field official Jon Moss that the goal should stand. Cue celebrations from Iheanacho, but also from most of the wider footballing community.

Were these celebrations premature? Certainly Iheanacho’s were not – he and his teammates were left standing around while Mike Jones pondered the tight call, and it was not until after the referee gave the signal that muted hugs and high-fives ensued. What of the jubilation further afield, where this intervention of VAR was lauded as the ushering-in of a shining new era for football? Unfortunately, those piling on the superlatives do not appear to have fully considered the consequences of the system. Some standard criticisms are well-rehearsed: amongst these is scepticism as to how well games will flow when they are prone to be interrupted by referrals, and it has to be said that the working of the technology in this instance did nothing to alleviate those concerns. However, it is a less talked-about consequence of the technology that provides the real sticking point.

Here is the issue. Imagine, for a moment, that Kelechi Iheanacho did not take on the early shot after running off the back of his marker, but instead opted to control the ball and work an even better shooting position by looking to go around the goalkeeper. By this time, the referee would have responded to his assistant’s flag and brought back proceedings – at this point, VAR is of no assistance. Unless the ball has actually been put in the back of the net only to be (initially) ruled out for offside, an assessment of the linesman’s call is out of the question: to take the scenario where Iheanacho looks to round the keeper, the referee can hardly order all of the players to return to the exact positions they were in at the point play was stopped in order to see how the passage would pan out. Not knowing for sure that a goal would have been scored, even though the finish would surely have been a formality, the officials cannot award the goal even once the incorrectness of the offside call has been established. Taking the keeper out of the equation is just as valid as the deft chip the Nigerian actually opted for, and would almost certainly have resulted in the same outcome, but this is disregarded under VAR – one gets the benefit of the technology, and the other does not.

There are two potential responses to this problem: one looks to dismiss it, the other to solve it. The solution that might be proposed is a modification of the situations in which the referee blows his whistle. Indeed, Graham Poll alluded to this as a consideration when giving his opinions in the immediate aftermath of the goal being awarded – the suggestion was that in his position as a referee in a match including VAR, John Moss should have made sure he delayed his blowing of the whistle until after it had become clear whether or not Iheanacho would score. In this way, the game would never be stopped prematurely on the basis of an incorrect decision from an assistant referee, and where the decision did turn out to be correct the ‘goal’ could be chalked off without much difficulty. However, neat as this sounds, it does not solve the problem. Bearing in mind that the vast majority of offside decisions are correct, how long does the referee let an attack run for before he acknowledges the flag? What even constitutes an ‘attack’ which he should let run in the first place? In 2013/14, Liverpool travelled to The Etihad to take on Manchester City. They took an early lead, and looked to have carved out a great opportunity to double it when Raheem Sterling was put clean through on the counter. Such was the high line of the hosts, this occurred on the halfway line: the offside flag was erroneously raised. There is no obvious answer as to what a referee assisted by VAR should have done in this scenario; on one hand Sterling was clean through and the play should have been allowed to unfold, with the offside call left for assessment afterwards, but on the other hand receipt of the ball on the halfway line could hardly be said to constitute an attack. Had Sterling been offside, as the linesman believed, allowing the move to continue would have meant allowing an entirely pointless break half the length of the pitch. There are no workable criteria on which to judge when and for how long the referee delays acknowledgment of an assistant’s flag, and this solution duly fails.

With no solution, proponents of the technology have to look to simply dismiss the issue that is posed by the possible variation in circumstances surrounding offside calls. The principal line of argument is that, while some would-be goals will inevitably still be disallowed, VAR nonetheless reduces injustice by correcting the situations where a goal immediately follows a stray offside flag and consequently lowering the total number of wrongly disallowed goals. It would be churlish to suggest that this argument is completely without merit. Certainly, it is at least arguable that a scenario where some wrong offside calls are corrected is preferable to one where none of them can be changed. However, this is not as inevitable a conclusion as it sounds. The current situation, though it produces immense frustration on a fairly regular basis, can at least say that it makes all teams and all match events equally susceptible to suffering unfairness by way of refereeing error. This equality is, perversely, a form of fairness: it acknowledges human error as an inescapable part of the game, and ensures that these errors are not channelled into a few specific areas. Video technology, meanwhile, produces a further category of unfairness by only functioning to correct errors of a particular type. It has been shown that this flaw is inherent – were there an effective way for VAR to eradicate all refereeing mistakes, there would of course be no controversy. Given this, it has to be asked whether it is a welcome addition to the game. A match where one valid goal is mistakenly flagged for offside and another stands is a cause of great consternation to fans; a situation whereby one mistaken call was corrected and another was left to stand would surely provoke even more outrage.

This is not a fatal blow to the case for video technology. There are undoubted benefits of VAR, and if it was to be brought in on a more permanent basis then fans and players alike would no doubt adapt to it before long. However, the problem of offside goals at least gives cause for consideration: there is a danger of getting swept away on the wave of hype generated by Iheanacho’s goal, when really it showcased the flaws with video assistants as much as the advantages.