Coby Rabushka
When the English Premier League introduced the Video Assistant Referees (VAR) system in November 2018, soccer fans across the world rejoiced. In a sport like soccer, where low-scoring matches are the norm, winning or losing the match often turns on referee decisions that are made in an instant. The error may be an incorrect offsides call, a phantom foul that was awarded a penalty kick, or a plainly obvious, but missed, handball. And for decades, suffering teams were powerless in the face of these errors. Many postured, and still argue, that over the the course of a season, the bad luck of incorrect referee decisions will ultimately “even out.” But for teams that had their season end because of a bad decision, this reasoning seemed like a deficient consolation.
So, there was no surprise that the introduction of VAR, which promised to correct referee errors through an analysis of video replays, was widely celebrated. Of course, it did not come without its skeptics. Critics opined that it would add too much technology to a game that was played before cameras were even invented. Moreover, they contended that the distinctively free-flowing game would be constantly disrupted with frequent checks to video replay. For fans who grew up watching soccer accustomed to its pure nature, adding video replay referees seemed like a radical change. VAR, for them, was merely another example of technology infiltrating their previously simpler life.
The Premier League recognized these concerns had merit. Worried that every single referee decision may require video replay to resolve, the Premier League promulgated strict rules for when VAR could overturn an on-field decision. They explained that VAR will be used only in four situations: goals, penalty decisions, direct red card incidents, and mistaken identity.[1] Yet still worried that VAR will have too much interference, the Premier League further decided that VAR will overturn the on-field call only when it is a “clear and obvious error.”[2] This was a mistake.
This “clear and obvious error” standard of review is stringent. It is akin to the “clearly erroneous” standard of review in American civil appellate proceedings to overturn facts found at trial. However, while the deference to facts found at a trial court makes sense given the intimacy the trial court has to the facts and the reliance on their determinations, this strict standard of review makes little sense in the context of the Premier League. I propose it should be replaced with a de novo review. That is, the video assistant referee should approach the decision with no deference given to the on-field call.
Any soccer fan has seen this frustrating sequence of events time and time again. A referee makes a call on the field. Because it is one of the four enumerated scenarios, perhaps an awarded penalty kick after a foul in the box, the VAR has a check to see if there was actually a foul. At home, viewers can see that it is quite likely a mistake was made. There is very little contact, and instead the attacking player has seemingly taken a “dive” in an effort to win the penalty kick. If the referee had decided in the moment there was no foul, VAR would certainly affirm the call. But the referee did call a foul, and because there is such a large deference given to the on-field decision, the VAR decides to affirm the penalty kick, which goes on to decide the game.[3]
But why was so much deference given to the on-field call? When it was made, the referee was 30 yards away and saw it from one unrevealing angle. VAR, though, had the opportunity to review it from multiple angles, in slow motion, over and over again. The argument is presumably that VAR should not interfere any more than is needed. But isn’t it best to get the decision correct once they spend the time reviewing it? It seems awfully inefficient for VAR to take five minutes to review a decision, be almost certain it was called wrong on the field, but not overturn it because it is not “clear and obvious.” The Premier League should instead acknowledge that VAR has a much better look at the play, and afford them more flexibility in changing the call. More specifically, VAR should decide the matter as if they were deciding it in the moment on the field.
The current “clear and obvious error” standard of review undermines VAR’s potential. The sole purpose of VAR should be to get the decision right in the end. Revising the standard to a de novo review would certainly do this at a better rate.
[1]VAR, https://www.premierleague.com/VAR (last visited Sep. 30, 2021).
[2]Id.
[3]See, e.g., James Goldman, Why VAR Didn’t Overturn England’s Controversial Penalty Against Denmark, METRO (July 7, 2021), https://metro.co.uk/2021/07/07/why-var-didnt-overturn-englands-controversial-penalty-against-denmark-14892112/ (“Keep in mind it has to be a clear and obvious error for an on field decision to be changed.”).