Publisher's Note: It's been a long week. Although addressing a topic off the beaten path for this blog, the following essay raises interesting and thoughtful questions about rules, standards, and, most important, soccer. We hope you enjoy it. 

Cross-posted from Balkinization

The 2018 soccer World Cup was the first to use Video Assistant Referees (VAR). VAR allows decisions by the head referee involving goals, penalties, direct red cards, and “mistaken identity” to be reviewed, immediately afterward, with the aid of video footage. Not coincidentally, the 2018 World Cup was also the first to feature upward of twenty penalty kicks. At the 2014 tournament in Brazil, a total of thirteen penalty kicks were called, not including shootouts. In Russia, the number was twenty-nine.

The criteria for awarding penalty kicks have not changed. According to the official laws of the game, if a player commits a foul punishable by a direct free kick inside her own penalty area, “[a] penalty kick is awarded.” Each and every time a player inside this zone pushes an opponent, trips an opponent, handles the ball deliberately (unless she is a goalkeeper), and so on, the opposing team gets a penalty kick.

In legal-theory parlance, the criteria for awarding penalty kicks are “rules” rather than “standards.” They are clear and precise—not completely clear or precise, as terms like “trip” and “push” go undefined, but relatively so—and they give little discretion to the referees who enforce them. Other laws of soccer were designed from the outset to be flexible and context-sensitive: for instance, the laws empowering referees to give yellow cards for “reckless challenges” and red cards for “excessive force.” The laws governing penalty kicks are not like that. If one of an enumerated list of behaviors is found to have occurred, a penalty kick follows.

This, at least, is the law on the books. The law in action has long been different. As all soccer devotees know, referees sometimes decline to award penalty kicks in situations where the formal laws suggest they are mandatory. If, say, the collision in the box looks innocuous or inadvertent, or if the fouled player was unlikely to score anyway, or if the incident takes place near the end of a close contest, many referees seem more inclined to let play continue. Informing these judgments are intuitions about soccer justice and an appreciation that in such a low-scoring game, the penalty kick is a draconian sanction—leading to a goal more than two-thirds of the time. It’s roughly comparable to a basketball referee awarding one team fifty foul shots, all in a row.

With their decisions subject to review by a phalanx of off-field “assistants,” however, the referees in Russia no longer felt free to apply their situation sense and to refrain from awarding penalties that may have been technically warranted but seemed unduly harsh, given the circumstances. France’s second goal in the final was arguably a case in point. On a few occasions, video review revealed that an apparent foul had not in fact occurred and led to the reversal of a penalty kick that had been whistled on the field, as with Neymar’s dive against Costa Rica. But overall, by subjecting referees to real-time, panoptical scrutiny, VAR made the policing of penalties more severe as well as more mechanical.

The introduction of VAR thus exposed a gap between the law on the books and the law in action. And the effect was to rulify the adjudication of penalty kicks. Under the gaze of FIFA’s all-seeing thirty-three broadcast cameras, a nuanced standard that had developed over many years without ever being written down—a standard that prioritized the punishment of blatant fouls and denials of goal-scoring opportunities—gave way to a comparatively rigid rulebook that recognizes no distinctions among more and less “penalty-worthy” trips, pushes, or the like. Transparency left less room for subtlety. Codified law swallowed custom.

Is this a good or a bad thing? I am inclined to be negative about this aspect of VAR. (The earlier introduction of goal-line technology, in contrast, did not undermine any customs of refereeing or introduce any delays in play, and strikes me as a boon for the game.) Although penalty kicks may now be called more consistently, they will also be called more frequently and mindlessly. FIFA’s president insists that “VAR is not changing football, it is cleaning football.” Yet we know from other contexts that enforcing longstanding laws more aggressively or literalistically can be a deeply disruptive, if not subversive, act. To “cleanse” soccer of enforcement discretion is to change the sport.

My own instinctual negativity likely reflects some combination of nostalgia, technoskepticism, and aesthetic taste. But the degree to which VAR has divided opinion also reflects, I suspect (loosely in line with Duncan Kennedy’s famous analysis in “Form and Substance in Private Law Adjudication”), different orientations toward rules, standards, expertise, and the rule of law. For those soccer fans who are “rules people” and take clarity, predictability, and impersonality to be the essence of a well-functioning legal system, VAR may seem obviously superior to the opacity and ad hockery of the old regime. For those who place greater trust in the professional judgment of on-field referees and greater emphasis on the avoidance of substantively unfair outcomes, on the other hand, VAR may come across as alienating, crude, even callous.

Perhaps we can bridge some of the space separating these two camps. VAR’s critics must concede that the system has real benefits, particularly in cases where the referee simply could not see what happened on the field while it was happening. To capture these benefits without straightjacketing referees, I wonder whether the laws of the game might themselves be made more standard-like through the use of a new intermediate sanction. For example, they could instruct referees to award ordinary penalty kicks for egregious fouls and fouls that deny a clear goal-scoring opportunity, but indirect kicks or unobstructed direct kicks from eighteen yards out (rather than twelve) for all other fouls in the penalty area.

Any such proposal is bound to be enormously controversial. Whatever their views on its merits, legally and philosophically inclined fans might at least agree that the way VAR has transformed the practice of penalty kicks supplies an interesting case study in the jurisprudence of sport, the instability of rules and standards, and the potential for technological change to disrupt sociolegal norms.

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