I’ll let my legal expert, Adrian the Canadian take it away (and believe it or not, this has little to do with the incompetence of the replacement referees and everything to do with the NFL’s replay review procedures):
Every football fan, even the replacement refs, was relieved when the NFL and the real officials resolved their labor dispute. The fast resolution was driven, in large part, by the result of the Monday Night game between the Seahawks and the Packers. By now, even non-fans know what happened. If you’ve been living in a shoe box, here’s the video of the call that encompasses the replacements’ legacy. But simply blaming the replacement refs doesn’t quite get us to the clearly incorrect result. Yes, the refs blew it on the field, but they also had a chance to review the play using instant replay and still allowed the call on the field to stand. How could instant replay fail to correct such an obvious mistake?
Down by five, the Seahawks had one chance to beat the Packers: a Russell Wilson Hail Mary pass. While the pass was in the air, Seahawks receiver Golden Tate first pushed off and over a Green Bay defender (easy offensive pass interference call, but one that often isn’t called on Hail Mary’s) then, seemingly, got his hands on the ball only after Packers corner M.D. Jennings got his arms around the ball. With the two players on the ground clutching the ball, one referee signaled “touchback,” the other signaled “touchdown.” After a brief conference, the referees ruled “touchdown” and upheld the play via replay.
Presumably, the officials on the field came to the conclusion that Jennings and Tate had simultaneous possession of the ball. The rule (Rule 8-1-3, Item 5 of the NFL’s arcane rulebook) is a version of the baseball credo “tie goes to the runner.” Here is rule 8-1-3, Item 5:
If a pass is caught simultaneously by two eligible opponents, and both players retain it, the ball belongs to the passers. It is not a simultaneous catch if a player gains control first and an opponent subsequently gains joint control. If the ball is muffed after simultaneous touching by two such players, all the players of the passing team become eligible to catch the loose ball.
Replay and common sense suggests that Jennings caught the ball and Tate only gained possession afterwards. So, the call went up to the booth for review where a non-replacement official helped the replacement ref make the on-field ruling. After review, the replacement ref took to the field and said “the call on the field stands.” This wording is important. He did not confirm the call on the field, he simply found insufficient evidence to overturn the call.
Is Simultaneous Possession Reviewable?
Before I tackle the difference between “confirming” versus “not overturning,” what exactly is reviewable about the play? Various sources have come up with various theories. Based on a similar play last year, it seems that Mike Pereira, writing about a similar situation last year, suggests that possession is not reviewable (only whether a pass was complete or incomplete is reviewable). However, Pereira was not dealing with a play in the end zone and the referee’s “unconfirming” statement that the “call on the field stands” suggests that he wasn’t reviewing merely whether the ball was caught – that would have been “confirmed.” The ball was caught by someone, it’s possession that was ambiguous. Mike Florio at PFT thinks that the play was reviewable, finding that there’s nothing in the NFL Rule Book that excludes review of simultaneous possession. Peter King states that simultaneous possession is reviewable in the end zone but not on the field of play. The NFL agrees.
Under Section 9 of the NFL rule book, simultaneous possession is not under either the enumerated list of reviewable plays (though complete/incomplete/interception is listed as reviewable) or under the enumerated list of non-reviewable plays. However, the enumerated list of non-reviewable plays is not fully inclusive: the Rule Book states that “non-reviewable plays include but are not-limited to” the enumerated list. Thus, there are some plays that are non-reviewable but not listed among the non-reviewable plays. So how can we figure out whether or not the play was reviewable?
When interpreting a statute like the NFL Rule Book, judges and lawyers use a variety of techniques to figure out what a statute means. In this case, our most basic tool – the plain meaning of the words – offers little guidance. Nothing in the Rule Book, on its face, deals with replay review of simultaneous possession. The passage about complete/incomplete/interception is ambiguous. We are not reviewing whether the ball was validly caught in this case; it’s clear that someone caught the ball, but which player had valid possession of the ball? Possession is the issue, not complete-incomplete. In other words, it seems as though that rule is designed to capture the distinction between a pass that wasn’t caught and one that was, not one that was caught by two players at the same time (I’m open to the interpretation that says that this rule does cover simultaneous possession, but, regardless, the provision is ambiguous).
So we’ve got to use different interpretative techniques in order to determine whether the play is reviewable. One technique is to read a provision in the context of the rest of the statute. Similarly, statutes should probably be interpreted to avoid absurdity. Finally, analogy is an important tool – things of the same kind as things in the statute should be interpreted as being included in the statute.
All three of those principles give us some guidance as to whether simultaneous possession in the end zone is reviewable. In terms of context, non-reviewable plays tend to be judgment calls by the officials or things that are very difficult to determine even with replay. Thus, possession of a loose ball is not reviewable. However, possession of a loose ball (read: fumble) is reviewable in the end zone or along a boundary line. By analogy, an interception is “of the same kind” as a fumble – it’s a potential turnover – and therefore reviewable in the end zone. It would be somewhat absurd if simultaneous possession of a fumble is reviewable in the end zone but not simultaneous possession of an interception. In other words, the NFL’s interpretation of its own Rule Book is probably a good one: simultaneous possession of an interception is reviewable in the end zone.
Wait, simultaneous possession is reviewable? How could the play stand?
We’re back to the dastardly confirming/not overturning issue. The “standard of review” in the NFL is “incontrovertible video evidence.” In English, referees will not overturn a play unless the video makes it 100% clear that the call on the field was incorrect. In law, the “standard of review” refers to the level of scrutiny an appeals court will apply to a lower court’s or a jury’s judgment. Real world court judgments are reviewed by higher courts in two parts: (1) the application of the laws themselves are reviewed “de novo” (in English, appellate courts look at the legal issue with fresh eyes), and (2) the factual findings of the jury must be “clearly erroneous” to be overturned on appeal. The general rule is that the law tries to place the burden of making the correct decision on the party best situated to make that decision. The higher courts specialize in interpretation of the “law,” so those aspects must be “confirmed” (in NFL-speak), while the jury can more fairly assess the facts of the case, meaning that factual conclusions need only be “not overturned.” Believe it or not, the standard of review for instant replay is a live issue in legal circles with some arguing for “de novo” review, or close to it, on instant replay, and others advocating for the current standard.
In the case of the Seahawks-Packers game, the referee’s language “the call on the field stands” lets us know that he didn’t find incontrovertible evidence to overturn the call, not that the call was correct (the only time you use that language, according to the rule book, is when there’s not enough evidence to reach a conclusion). If they had called the play an interception, replay wouldn’t have overturned that either. If it wasn’t for the replacement refs, the review procedure would be the live issue. It’s actually hard to see how video “incontrovertibly” shows that Tate didn’t gain simultaneous possession. I mean, I’m 95% sure it wasn’t simultaneous possession, but not 100%!
Solving this problem is not easy. One proposal would be allowing a single referee’s challenge during the game where, the referees can choose to have the replay booth review the call on the field “de novo.” In other words, in exceptional circumstances, the referees could defer to replay review in order to come to the best decision possible. Likely, this would have solved the Seahawks-Packers problem, though it could create a host of others. Unfortunately, the temporary issue of incompetent replacement refs has probably distracted everyone from the more important issue of “standard of review.” I’ll come back to this problem in the future – it’s an interesting and surprisingly rich issue – but for now, what do you think? Incontrovertible video evidence, de novo review, or something else?