July 22, 2024

Sports and Courts: Improving Video Review

De Novo: A Better Way to Review

Sports and courts really aren’t that different. Both are adversarial, pitting one team against another. Both teams do the best they can (within the rules and ethical expectations) in order to win. You can watch both Judge Judy and Vikings-Packers on television. And both include an overseeing authority – judges, or umpires, or officials – who enforce the rules and make the calls.

With the rise in video review across many sports, the two have become even more similar. Video review is a lot like an appeal in a court case. In both, someone thinks they were slighted. They identify a particular error that they believe has occurred and notify the judge/official. Then the error is carefully reviewed and a second decision is handed down: either to stick with the first answer or to change it.

But there is one very important difference between sports and courts: the standard of review. This difference is more meaningful than you may realize, and this article will discuss how video review could be improved by borrowing a standard of review from the courts.

Sport Standards of Review

The “standard of review” is the amount of deference that a reviewing court gives to the first court that handed down the decision. In sports, the standard of review is very strict. If you’ve watched an NFL game, you probably know the phrase “indisputable video evidence.” This is the NFL’s standard of review. Without indisputable video evidence – even if there’s video evidence that shows the call was probably wrong – the reviewing official is supposed to defer to the call on the field and allow it to stand.

Standards of review can vary significantly. In the courts, they often do (and we’ll get to that). But in sports, they are strict across the board. The NBA requires “conclusive video,” for example, and MLB demands “clear and convincing evidence” to overturn a call.

The current standard of review in college football, though, is the strictest I have ever seen. Rule 12, Section 7 of the NCAA Football Rules states that “the replay official must be convinced beyond all doubt” in order to overturn a call. You should know that the standard in court to convict a person of a crime is “beyond a reasonable doubt” – not all doubt, like in the NCAA rule – meaning, theoretically, college football demands more evidence to change an incompletion to a catch than a court does to sentence a person to life in prison.

If this seems absurd to you, good – because it’s absurd to me, too. Fortunately, while sports are uniformly strict in their video review standards, courts have many more options available.

Court Standards of Review

The standard of review in a court can vary from case to case or even from issue to issue in the same case. There is a wide variety of standards that can be applied. (I’m going to skip most and save you from the boredom.) One of them, however, is on the opposite end of the deference spectrum from the sports world. This standard is called de novo review.

De novo (“anew” in Latin) review means that no deference is given to an earlier decision. The issue that is being reviewed is looked at “anew,” as if no answer had been given on it before, and a fresh decision is made. Essentially, you start over and act as though you’re the first person deciding the issue.

The de novo standard of review is applied by a court when it reviews how the law was applied to a case it’s reviewing. Appellate courts typically give more deference to existing decisions on the facts of the case, because the lower court is in a better position to make those determinations. But as to the law that should be applied, the appellate court can make those determinations just as easily, if not better, so a de novo standard is applied.

This is an important point. One the key considerations in the law is which court is in a better position to provide the right answer on the question. If one of them is, the law will generally defer to them to answer the question.

Sports and De Novo Review

The question is clear: if courts defer to whichever one is better positioned to give the right answer, why shouldn’t sports do the same? If the goal is to get the right answer as frequently as possible, then we should be giving the most decision-making power to the video replay official, not the on-field official. Video replay allows for multiple viewings from multiple angles, in slow motion, with pausing and rewinding. An on-field official gets one full-speed viewing.

There are dozens of examples of an on-field official getting the call wrong, but none more egregious than what happened in Detroit in 2010. Tigers pitcher Armando Galarraga was one out away from completing a perfect game – what would have been just the 19th perfect game in baseball’s modern era. Then an umpiring error intervened.

Jim Joyce, the first base umpire, made a bad call. With the benefit of replay, we know that the call was wrong. Ask yourself: who is in a better position to get this call right? Joyce standing on the field watching it unfold in real time, or any observer with the benefit of multiple video angles, slow motion replay, and even the ability to pause the video at the moment the ball enters the Galarraga’s glove and see that the runner had not yet touched the base?

Video replay officials are better suited to get the call right. So, why not make their reviews de novo?

This wouldn’t change sports dramatically. Video review is already ingrained in sports culture – now even in baseball, the most traditional of the major sports. All it would do is shift the ability to make the right call to the video replay official. They would no longer be handcuffed by strict “indisputable video evidence” or “beyond all doubt” standards. The only real change to sports would be to get the right call more often.

You may wonder “What if the video replay official can’t tell the right answer?” Maybe out of all the angles available, there somehow isn’t a single one that shows the crucial moment under review. In that very limited circumstance, we can allow the video replay official to give an answer of “I don’t know,” which would then result in the call on the field standing.

All sports should change the video review standard to de novo. They’d get the call right more often. Maybe one day, sports will learn this lesson from the courts.

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Spencer Hughes 28 Articles
Staff Writer

Spencer is an attorney in Washington, D.C. and a Cedar Rapids, Iowa native. He holds degrees from Iowa State University and Duke University School of Law, where he learned that you can’t choose which is better between Hilton Coliseum and Cameron Indoor Stadium; they’re just different. He will discuss with you Game 6 of the 2011 World Series or the Minneapolis Miracle whenever you want and often when you don’t.

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