Retrospective trial by video evidence in sport

Published 21 April 2015 | Authored by: Kevin Carpenter

Being a qualified match official, formerly in football and fustal and now refereeing rugby union, this author has always been a strong advocate of using technology, both during and after a sporting contest, to assist in achieving correct decision making.

This topic has always been hotly debated across sport worldwide with some sports being more comfortable embracing technology, with varying degrees of success, for instance, the use of the Television Match Official in rugby and the Decision Review System in cricket.1

However, it is the use of video evidence after the match has concluded for reviewing potentially serious breaches of the playing rules that has been under the media spotlight again recently (previous incidents are discussed here2) following the tackle by Burnley’s Ashley Barnes on Chelsea’s Nemanja Matic in the Premier League football match between the two teams at Stamford Bridge on 21 February 2015 (video of the incident3).

At the time of the incident, the referee saw the tackle but did not sanction the player with a red card for serious foul play as many including this author think he should have done because it was a tackle made with “excessive force” meaning the player has far exceeded the necessary use of force and is in danger of injuring his opponent.4

The article focuses on analysing the approach to retrospective trial by video evidence by different sports/governing bodies for breaches of the playing rules, (and in that context we will further explore the situation involving Mr Barnes).

Once a selection of sports have been analysed, the author will seek to draw out some key features of the use of video technology after the game/event has finished which the author believes all sports should consider adopting.

 

Field of play doctrine

Before analysing individual sports, it is worth exploring briefly why exactly sports don’t allow technology/video evidence to retrospectively correct any and all incorrect refereeing decisions carte blanche.

The starting premise is that there is a generally accepted view that referees, umpires and any other match officials must be allowed to officiate a sporting event freely without any legal interference. In other words, officials must have a field of autonomy within which they must be free to err as human beings, subject only to any corrective mechanisms (such as video evidence) set in place under the sport’s rules.5 This subsidiarity is consistently recognised by the Court of Arbitration for Sport (‘CAS’) through a specific sports law principle called the field of play doctrine (‘the Doctrine’).

One of the most recent and high profile cases in which this Doctrine was applied by the CAS was by its Ad Hoc Panel at the London 2012 Olympic Games following the women’s triathlon event (video6). Both the gold and silver medal placed athletes in the race had exactly the same time. The referee awarded the gold medal to the Swiss athlete, Ms Nicola Spirig, after seeing a photograph of the finish whereby Ms Spirig crossed the line first with her stomach. The Swedish athlete, Ms Lisa Norden, appealed on the basis that the referee assessed who had finished first by reference to the wrong part of the body.7 Rule 6.2 a) of the International Triathlon Rules (‘ITU’) provided that, “an athlete will be judged as ‘finished’, the moment any part of the torso, reaches the perpendicular line extending from the leading edge of the finish line.” A torso was defined in Appendix D to the ITU rules as the, “section of the body extending from the base of the neck to the base of the sternum.” The finish in the London 2012 race was unusual in that it was a case where Ms Spirig was leaning backwards, rather than leaning forwards, which, Ms Norden argued, was not contemplated in the drafting of the rules or by the referee. In its award, the CAS Ad Hoc Panel upheld the referee’s interpretations and his award of the gold medal to Ms Spirig, and in doing so accepted;

the evidence of the referee that he applied Article 6.2 a) as drawn. Because he applied the correct rule, the Referee’s Decision falls squarely within the definition of a field-of-play decision. The sole question, then, for the referee to decide was which athlete’s torso crossed the line first”.

The CAS will not even interfere where a referee/judging error is plainly incorrect and/or has been admitted to being so.8 The CAS has characterised its approach as one of self-restraint and not lack of jurisdiction depending on the wording of the applicable rules. This is evidenced by the circumstances in which the CAS will pierce the immunity match officials have from the reach of the law on the field of play: namely if a decision is tainted by fraud, arbitrariness or corruption.9

This topic has always been hotly debated across sport worldwide with some sports being more comfortable embracing technology, with varying degrees of success, for instance, the use of the Television Match Official in rugby and the Decision Review System in cricket.1

However, it is the use of video evidence after the match has concluded for reviewing potentially serious breaches of the playing rules that has been under the media spotlight again recently (previous incidents are discussed here2) following the tackle by Burnley’s Ashley Barnes on Chelsea’s Nemanja Matic in the Premier League football match between the two teams at Stamford Bridge on 21 February 2015 (video of the incident3).

At the time of the incident, the referee saw the tackle but did not sanction the player with a red card for serious foul play as many including this author think he should have done because it was a tackle made with “excessive force” meaning the player has far exceeded the necessary use of force and is in danger of injuring his opponent.4

The article focuses on analysing the approach to retrospective trial by video evidence by different sports/governing bodies for breaches of the playing rules, (and in that context we will further explore the situation involving Mr Barnes).

Once a selection of sports have been analysed, the author will seek to draw out some key features of the use of video technology after the game/event has finished which the author believes all sports should consider adopting.

 

Field of play doctrine

Before analysing individual sports, it is worth exploring briefly why exactly sports don’t allow technology/video evidence to retrospectively correct any and all incorrect refereeing decisions carte blanche.

The starting premise is that there is a generally accepted view that referees, umpires and any other match officials must be allowed to officiate a sporting event freely without any legal interference. In other words, officials must have a field of autonomy within which they must be free to err as human beings, subject only to any corrective mechanisms (such as video evidence) set in place under the sport’s rules.5 This subsidiarity is consistently recognised by the Court of Arbitration for Sport (‘CAS’) through a specific sports law principle called the field of play doctrine (‘the Doctrine’).

One of the most recent and high profile cases in which this Doctrine was applied by the CAS was by its Ad Hoc Panel at the London 2012 Olympic Games following the women’s triathlon event (video6). Both the gold and silver medal placed athletes in the race had exactly the same time. The referee awarded the gold medal to the Swiss athlete, Ms Nicola Spirig, after seeing a photograph of the finish whereby Ms Spirig crossed the line first with her stomach. The Swedish athlete, Ms Lisa Norden, appealed on the basis that the referee assessed who had finished first by reference to the wrong part of the body.7 Rule 6.2 a) of the International Triathlon Rules (‘ITU’) provided that, “an athlete will be judged as ‘finished’, the moment any part of the torso, reaches the perpendicular line extending from the leading edge of the finish line.” A torso was defined in Appendix D to the ITU rules as the, “section of the body extending from the base of the neck to the base of the sternum.” The finish in the London 2012 race was unusual in that it was a case where Ms Spirig was leaning backwards, rather than leaning forwards, which, Ms Norden argued, was not contemplated in the drafting of the rules or by the referee. In its award, the CAS Ad Hoc Panel upheld the referee’s interpretations and his award of the gold medal to Ms Spirig, and in doing so accepted;

the evidence of the referee that he applied Article 6.2 a) as drawn. Because he applied the correct rule, the Referee’s Decision falls squarely within the definition of a field-of-play decision. The sole question, then, for the referee to decide was which athlete’s torso crossed the line first”.

The CAS will not even interfere where a referee/judging error is plainly incorrect and/or has been admitted to being so.8 The CAS has characterised its approach as one of self-restraint and not lack of jurisdiction depending on the wording of the applicable rules. This is evidenced by the circumstances in which the CAS will pierce the immunity match officials have from the reach of the law on the field of play: namely if a decision is tainted by fraud, arbitrariness or corruption.9

Football

Football adheres strictly to the Doctrine. In Article 72 of its Disciplinary Code and Law 5 of the Laws of the Game the international governing body, the Fédération Internationale de Football Association (‘FIFA’), states, “during matches, disciplinary decisions taken by the referee…are final”.10 For instance, it was on this basis that FIFA refused to take retrospective action for this tackle11 on Brazilian Neymar during the recent 2014 FIFA World Cup Brazil.12

When it comes to national member associations of FIFA who have to apply the Laws of the Game and disciplinary provisions to matches in their jurisdiction within the parameters set by FIFA, Article 146 of the Disciplinary Code allows them some discretion to comply with Article 72,13 but they must still be aware of possible sanctions they face if they stray too far from the wording and intention of the Disciplinary Code:14,15

Article 146 Associations’ disciplinary codes

    1. The associations are obliged to adapt their own provisions to comply with this code for the purpose of harmonising disciplinary measures.
    2. The associations shall, without exception, incorporate the following mandatory provisions of this code into their own regulations in accordance with their internal association structure […]
    3. The associations shall also incorporate the following provisions of this code to achieve the objective of harmonising disciplinary measures but, in doing so, they are at liberty to choose the means and wording of the provisions […]
    4. It is not mandatory for the associations to incorporate the articles not listed under par. 2 and par. 3 of this article but it is advisable insofar as they are necessary.
    5. Any association that infringes this article shall be fined. In the event of more serious infringements, further sanctions may be pronounced in accordance with this code […]

To analyse the discretion in applying Article 72 and Law 5 by member associations/national competition, and the use of technology/video evidence after the final whistle has blown, the author will analyse the disciplinary regulations and approach in top-tier English, American and Australian football.16 For the purposes of this article, foul play in football will encompass both “serious foul play” and “violent conduct” as defined in Law 12 of the Laws of the Game17 (and the accompanying interpretation18), both of which are sending off offences when a player uses excessive force or brutality against an opponent (with the only difference being that the former applies only when challenging for the ball when it is in play and the latter when not challenging for the ball). The discretion given to national associations becomes contentious particularly where the match officials see the incident but do not sanction it correctly for foul play, as with the Ashley Barnes tackle.

The FA Premier League

The English Football Association’s (‘The FA’) are responsible for disciplinary matters for all levels of football in England including the Premier League. Of the three national associations, it is The FA that adheres most strictly to FIFA’s largely ‘hands-off’ interpretation of the Doctrine set out at Article 72.

Foul play is prohibited under Rule E3(1) of the FA’s Rules of the Association.19 Regulation 4.14 of the FA’s Disciplinary Procedures makes it clear that where the match officials (which includes referees, assistant referees, reserve officials and fourth officials) did not see an incident of foul play, but it was caught on video, then this is covered by Rule E1 and the Standard Directions in Schedule A20 (covering players of clubs of the Premier League). Schedule A applies to Rule E1 incidents, on or around the Field of Play, excluding the tunnel area, that are caught on camera but not seen and dealt with by the Match Officials at the time.” Schedule A(a)(i) and (ii) was introduced by the FA in November 201321 to cover:

  • acts of foul play that occur secondarily to a challenge for the ball; and
  • off-the-ball incidents where one or more match official saw the players coming together, but their view was such that none of them had the opportunity to make a decision on an act of misconduct (for our purposes foul play) that took place in that coming together.

A further disciplinary tool in the FA’s arsenal, but rarely used, is that they can increase the standard punishment for an offence under Rule E1 pursuant to Schedule A(d)(ii) where it considers the standard punishment to be “clearly insufficient”.

However, nothing in The FA’s Rules covers the Mr Barnes scenario above, as the tackle was seen by the referee, yet was not sanctioned, (even with a caution - yellow card - which could then have been increased), meaning that no retrospective action could be taken despite the video evidence. Whether right or wrong, this is good example of the Doctrine in action as captured through FIFA’s and The FA’s respective rules.

Major League Soccer

Major League Soccer (‘MLS’) is the top-tier of football in the United States. All disciplinary matters for that competition are administered by the MLS Disciplinary Committee pursuant to their Principles and Parameters.22 Parameters 2 and 3 are relevant to retrospective action by video for foul play.

Before getting to those two Parameters though, it is worth looking first at the MLS Disciplinary Committee Mission Statement and the preamble. Their Mission Statement is:

To preserve the integrity and reputation of the game and Major League Soccer, and to assist in ensuring player safety”.

This is extremely important when incidents of foul play are being considered and, in the author’s opinion, should for all sports underpin their attitude and approach to retrospective sanctioning using video and all other evidence.

The preamble also makes it clear that the “Disciplinary Committee reviews all games and all incidents”, not just those that are to be found in a referee’s report or referred by another part of the governing body/competition organiser.

Under Parameter 2 the MLS Disciplinary Committee has clear jurisdiction to act where there is an off-the-ball using “all evidence”, which includes video evidence. However, Parameter 3 has most significance and is set out in full below:

Where the referee sees an incident and either does not act, or rules only a foul or only a yellow card (i.e., anything other than a red card), the Committee will not in general issue a suspension, unless:

    • The play in question is, in the unanimous opinion of the Committee from all available video evidence, a clear and unequivocal red card; AND
    • The play in question is of an egregious or reckless nature, such that the Committee must act to protect player safety or the integrity of the game.

This provides the MLS Disciplinary Committee with broader powers than the FA by allowing them to apply sanctions for clear acts of foul play regardless of whether or not the match officials saw and/or dealt with the incident at the time on the field of play, and is drafting that clearly reflects their Mission Statement.

The A-League

The top football competition in Australia is the A-League. The A-League’s disciplinary function is run by the national association, Football Federation Australia (‘FFA’), with the FFA’s authorities and jurisdiction to be found in section 3 of the FFA A-League Disciplinary Regulations.23

Part C of those Regulations covers, amongst other disciplinary issues, retrospective trial by video evidence in Australian top-flight football. Like MLS, the FFA operate a match review system where pursuant to clause 9.1 a “Match Review Panel” (‘the MRP’) reviews all available video footage of incidents from all A-League matches for that particular round. In addition, the MRP reviews any match official reports of direct red cards given for red card offences in Law 1224 (serious foul play and violent conduct are treated as Category 1 offences in Annexure A of the Regulations) and any “Citation Incidents” which for the purpose of this article are those under 9.1(c)(i), “incidents involving a…player which in the [MRP’s] opinion based upon Law 12…should have been sanctioned with a direct Red Card, that escaped the Referee’s attention (as defined by clause 9.2)”.25 Clause 9.2 is about off-the-ball incidents:

For the purposes of these Regulations, an incident has escaped the attention of the Referee if the Match Review Panel, after a review of the Broadcast Footage and any Referee’s and Match Official Reports, in its sole opinion, determines that either the Referee did not see the incident, his or her view of the incident was not sufficiently clear for him or her to rule on the incident or the incident was not drawn to his or her attention by an assistant referee. The Match Review Panel, in making its determination, will if necessary seek confirmation from the Referee that the incident escaped his or her attention. Any decision of the Match Review Panel that the incident escaped the attention of the Referee is final and may not be challenged before a Judicial Body.

This approach is similar to the discretion the FA gives itself. As is the ability of the MRP to propose an additional sanction for Citation Incidents (pursuant to clauses 9.24 and 9.27) to the standard set down under Annexure A to the FFA Disciplinary Committee.

However, there is an additional safeguard in place in the Regulations that only the FFA itself can exercise at clause 9.40:

Where FFA in its sole and absolute discretion believes:

(a) that a Referee has made an Obvious Error; and
(b) a failure to remedy the Obvious Error would be prejudicial to the interests or good image of football in Australia,

FFA may issue to the Participant a Disciplinary Notice that:

(c) includes reasonable details of the alleged Offence; and
(d) refers the matter to the Disciplinary Committee for hearing to determine whether an Offence has been committed and if so, what sanction should be imposed in accordance with these Regulations.

The definition of “Obvious Error” as it applies to offences of foul play is a decision of the referee to: (a) issue a yellow card when a red card should have been issued or (b) not issue any card when it should have been a red card or (c) issue a red card when no card should have been shown. This clause 9.40 brings the FFA Regulation more closely in line with MLS than the FA.

 

Rugby Union

Foul play in rugby union is governed by Law 10 of the World Rugby Laws of the Game (World Rugby being the global governing body).26Foul Play” in Law 10 is far wider than the conduct analysed above in football but the closest analogy in terms of the conduct is Law 10.4 ‘Dangerous play and misconduct’.27 There is more potential for incidents of foul play in rugby union due to its inherently physical nature, as indicated in the Foreword to the Laws.

When examining the potential for retrospective action being taken by World Rugby for foul play, the starting point is the duties of the referee in Law 6.A.4, in particular sub-law (a), “The referee is the sole judge of fact and of Law during a match.” This is repeated in Regulation 17.17.2 of the World Rugby Handbook.28Regulation 1729 contains the discipline provisions for acts of foul play both for matches under its jurisdiction (i.e. international fixtures) and those under the jurisdiction of its national/regional member Unions and Associations (i.e. domestic league fixtures).30 The Preamble to Regulation 17 provides context for a discussion of World Rugby’s approach to retrospective trial by video evidence as sets out the following underlying rationale in Preamble A:

  • Maintain and promote fair play;
  • Protect the health and welfare of Players;
  • Ensure that acts of Foul Play are dealt with expeditiously and appropriately by independent means within the Game; and
  • That the image and reputation of the Game is not adversely affected.

It is then understandable why World Rugby seeks a “harmonised approach” and “consistency” in disciplining for foul play at all levels of the sport. This in turn means that Regulation 17 is far more prescriptive to its member Unions and Associations than FIFA is to its members under Articles 72 and 146 of its Disciplinary Code.31 As a result Regulation 17.1 sets out so-called “Core Principles” which must be applied at all levels of the game, and there are few areas left for the members Unions to have any discretion over under Regulation 17.2. The Core Principles include the threshold test for “citing”.

Citing is where a player is referred for an act of foul play by a duly appointed Citing Commissioner (‘CC’), after the match has ended which in the CC’s opinion warranted that player being sent from the field of play [Regulations 17.6.1, 17.8.1 and 17.9.1]. This covers incidents not seen by the match officials. However, the World Rugby Regulations go further in Regulation 17.9.2, “Citing Commissioners may cite Players for an act(s) of Foul Play where such act(s) may have been detected by the referee or assistant referee and which may have been the subject of referee action.

This is important as it means that even where one or more of the match officials has seen an incident and taken action during the game, such as giving a penalty against the offending player as well as potentially a yellow card (sin bin), action can still be taken. The World Rugby Regulations are silent as to whether said CC has to attend the match in person or can review the whole match/alleged incidents of foul play from recording of a match. However one of World Rugby’s member Unions, the Rugby Football Union (the governing body for rugby union in England), does make provision for this in relation to the top 2 divisions of English rugby in RFU Regulation 19, Appendix 4 (Discipline – Citing Procedures)32 paragraph 7, “A Citing Commissioner alone shall have the power and responsibility to cite a Player whom the independent video and/or other evidence shows to have committed an act of Foul Play whether or not it has been detected by the Match Officials.

Importantly for the integrity of the disciplinary process in rugby union, Regulation 17.17.4(a)33 of the World Rugby Handbook makes a clear delineation between the CC, in essence the investigator, and the Disciplinary Committee or Judicial Officer, the prosecuting body, “In the case where there has been a citing complaint, the function of the Disciplinary Committee or Judicial Officer is to determine whether an act of Foul Play was committed by the Player. The citing complaint shall not be upheld unless the Disciplinary Committee or Judicial Officer is satisfied on the balance of probabilities that the Player concerned committed the act(s) of Foul Play that are subject to the citing complaint. If the citing is upheld, the Disciplinary Committee or Judicial Officer shall determine the sanction, if any, to be imposed on the Player in accordance with Regulation 17.19 [and Appendix 1]. In determining the appropriate sanction, the Disciplinary Committee or Judicial Officer may take account of any action taken during the Match in respect of the Foul Play by the referee.

When it comes to the use of video evidence once a citing complaint has been made, Regulation 18, Appendix 1 (Disciplinary and Judicial Matters)34 section 3.3 provides the Disciplinary Committee/Judicial Officer with the usual evidential flexibility provided to sport tribunals “to receive such evidence and in such form as it thinks fit”. Interestingly Regulation 17.8.5 is a provision which one can reasonably assume has been sensibly included to make the disciplinary process as fair as possible for the player cited, by expressing a preference that any video of the cited incident to be used by/presented to the Disciplinary Committee/Judicial Officer is done so without the sound or commentary being allowed (save or any comments through the referees microphone). The sound of an incident (including background noises such as the crowd reaction) and the commentary can have a significant impact on the objectivity of the viewer to an incident, as could be said with the tackle by England’s Courtney Lawes on France's Jules Plisson (video of the incident35) in the game between the two nations in the final round of this years’ Six Nations Championship.

Referring to the Six Nations, the match between Scotland and Wales on Sunday 15 February 2015 provides a recent example of the use of the citing procedure. During the game, Scotland player Finn Russell tackled an opponent whilst he was in the air catching a ball (video of the incident36) which is foul play under Law 10.4(i).37 The referee correctly awarded a penalty and decided, after referring the incident to the Television Match Official for assistance, that the appropriate sanction was a yellow card and therefore 10 minutes off the field in the sin bin. However 3 days later it was announced by the Six Nations Disciplinary Committee that having, “viewed various TV angles of the incident, determined that Finn Russell had committed an act of foul play which merited a red card rather than the on-field yellow card given by the Match Officials”, and handed him a 2-week suspension.38 The Scottish Rugby Union appealed but this was rejected.39

 

Golf

A legend of golf Greg Norman (also known as ‘The Great White Shark’) once said this about the Rules of Golf,40We've got to abide by the rules. We have to protect it. The game of golf at a professional level is so clean. We are our own judge, jury and executioner. If we don't do what we think is right, the game might get away from us.41 The Rules themselves are broken down into the following areas:

  • The Game (Rules 1-3)
  • Clubs and the Ball (Rules 4 and 5)
  • Player’s Responsibilities (Rules 6-9)
  • Order of Play (Rule 10)
  • Teeing Ground (Rule 11)
  • Playing the Ball (Rules 12-15)
  • The Putting Green (Rules 16 and 17)
  • Ball Moved, Deflected or Stopped (Rules 18 and 19)
  • Relief Situations and Procedures (Rules 20-28)
  • Other Forms of Play (Rules 29-32)
  • Administration (Rules 33 and 34)

The strict adherence to the many nuanced and complex Rules, along with the honesty and integrity in monitoring your own adherence to them at all levels from amateur to professional, is largely unique in the world of sport (with some of the more unusual examples described in this article42) and is set down in Section 1 (Etiquette; Behaviour on the Course) of the Rules, “Golf is played, for the most part, without the supervision of a referee or umpire. The game relies on the integrity of the individual to show consideration for other players and to abide by the Rules.43

Indeed, one can say the enforcement of those Rules is a moral maze, with Irish journalist Patrick Campbell saying, “Golf is the only game in which a precise knowledge of the rules can earn one a reputation for bad sportsmanship.44 It is little wonder then that the retrospective use by the game’s governing bodies (the R&A and USGA along with the committees for individual tournaments/events) of video evidence for Rules violations in professional golf has courted much controversy, in particular those fans watching on television who contact the ruling bodies and point out unnoticed transgressions.45

The controversy is driven by the fact that if a player is found to have breached a Rule after signing his card for a particular round, and thereby officially declaring his/her score, then that player is disqualified from the tournament pursuant to Rule 6-6b.46 The use of video evidence when adjudicating breaches of the Rules of Golf is not expressly mentioned in the Rules themselves. However, the usual approach to the admissibility of evidence as to sports rules breaches and disciplinary procedures is apparent in golf with video evidence, with it being relied upon as far back as 1987 when Craig Stadler was disqualified from the San Diego Open. During the Saturday third round he had knelt on a towel when playing a shot from under a tree to keep his trousers clean. After finishing his final round on the Sunday he was informed that numerous TV viewers has called the tournament press room to say he had breached Rule 13-3 on ‘building a stance’. He was subsequently disqualified from his third place position.47

Perhaps the most famous instance of this was during the 2013 US Masters major championship involving arguably the most famous golfer of all time Tiger Woods. During the third round, Mr Woods hit his third shot on the 15th hole into the water before the green. To continue playing the hole, with one penalty stroke, he chose to drop his ball pursuant to a combination of Rules 20-5, 26-1 and 27-1.48 However he instead dropped it from two steps back from where he had taken his original shot and continued to play. A Masters Rules official received a text from a friend that this had happened and the Masters Committee reviewed the video evidence whilst Mr Woods was playing the 18th and final hole of his round and determined that he had complied with the Rules, much to the dismay of the golfing community.

However, somewhat unfortunately for the Committee the author imagines, Mr Woods then admitted to the infraction in a media interview after he finished his round. The following morning the Committee talked with Mr Woods, reviewed the video with him and reversed its decision, ruling that he had incurred a two-stroke penalty for dropping in and playing from a wrong place under Rule 20-7c.49 This was then also a breach of Rule 6-6b which should have led to Mr Woods’ disqualification, however, the Committee relied on the discretion in Rule 33 allowing them to waive the penalty of disqualification in “exceptional circumstances”, “as the Committee had previously reviewed the information and made its initial determination prior to the finish of the player's round"50 (video of the Masters Committee's press conference51).

This exercise of their discretion was not communicated properly and many stakeholders in the game were in uproar believing they had incorrectly52 relied upon Decision 33-7/4.553 adopted by the R&A and USGA back in April 2011 (such Decisions aid interpretation of the Rules of Golf) which, “[waived] the disqualification penalty for a breach of Rule 6-6d in narrow circumstances in which the player could not reasonably have been aware of a breach of the Rules that later was identified only through video evidence”.54 This led the two governing bodies to publish a lengthy joint statement a couple of weeks later explaining the whole incident and the Rules involved.55 Despite this there are still people (including the author) who believe that commercial considerations ran roughshod over the proper application of the Rules of Golf and had it been any other player than Mr Woods they would have been disqualified (video of the analysis and discussion at the time of the incident on the Golf Channel56).

The R&A and USGA made another amendment to its approach to the retrospective use of video evidence from 1 January 2014 with Decision 18/457 to address its use in determining whether a ball at “rest” has moved within the meaning of Rule 18-2.58 The desire for an amendment to the application of Rule 18-2 had arisen due to a number of high profile incidents of sanctions pursuant to this Rule, including major champions Tiger Woods (again) who received a 2 stroke penalty in September 201359 and Padraig Harrington who was disqualified from the 2011 Abu Dhabi Championship,60 which the majority of people in the game believed went too far and had become unfair. Unusually, for the former incident involving Mr Woods a television viewer did not call in the possible infraction, rather a freelance camera man captured it on video and an editor at headquarters going over the footage thought there was movement of the ball and notified the PGA Tour. New Decision 18/4 provides that:

where enhanced technological evidence shows that a ball has left its position and come to rest in another location, the ball will not be deemed to have moved if that movement was not reasonably discernible to the naked eye at the time. The Decision ensures that a player is not penalised under Rule 18-2 in circumstances where the fact that the ball had changed location could not reasonably have been seen without the use of enhanced technology.61

In the author’s opinion this is a sensible amendment to prevent the unnecessary sanction of players whilst maintain the integrity of the sport.

However, the new Decision 18/4 only redresses the balance as regards one of the multitude of Rules of Golf, and in its joint statement on Decision 18/462 the R&A and USGA made the following illuminating and valuable statements of the use of video evidence to identify breaches of all the other Rules, particularly in the professional game, both now and in their future bi-annual reviews of the Rules:

  • The R&A and the USGA will be guided by their longstanding position that a [Rules/Tournament] Committee should consider all evidence, regardless of the source, that may be relevant in determining the facts to which the Rules must be applied.”;
  • “To reach a correct ruling, all evidence from witnesses concerning a possible breach of the Rules should be considered, whether those witnesses are participants in the competition, non-participants such as spectators, or persons who have reviewed television footage and the like.”;
  • “In golf…even at the elite level, players often apply the Rules to themselves without the assistance of a referee and, in stroke play, are responsible for the correctness of the score recorded for each hole. Moreover, competitions are often played over more than one day and…the outcome typically is based on total score, making it possible to correct errors significantly after the fact and, indeed, at any time before the competition is closed by virtue of the result being officially announced.”;
  • “For these reasons, disregarding relevant evidence of a breach of the Rules, obtained before the competition has ended, could lead to uncertainty and to unhealthy debate and disagreement about the fairness of a result that was influenced by an incorrect set of facts and failure to apply the Rules properly.”; and
  • “If a player has breached a Rule, but this is not discovered until a later time, whether through video evidence or otherwise, such evidence must be considered so that the correct ruling can be applied and the player’s score can be recorded accurately.

 

How should sport use retrospective video evidence going forward?

Although the decision making of on-field officials has to remain largely sacrosanct to preserve their integrity and confidence, and indeed the confidence in them by all stakeholders in the sport, they are after all human beings who naturally make mistakes on occasion and it is clear that there is some added value in correcting certain of those decisions retrospectively using whatever evidence is available, particularly television/video evidence, to sport’s investigatory and/or disciplinary/judicial functions.

When contact sports, such a football and rugby union, are considered the principle which should underpin the entire decision review process, in the author’s opinion, is ensuring player safety. The Laws of those sports make it very clear that red card offences and sanctions for foul play are there to punish offenders and protect offended players so the evidential rules must also reflect that. The FA’s approach is seriously deficient in this regard and they cannot hide behind the FIFA regulations. The FA must more closely align itself to both MLS and the A-League in its sanctioning of serious foul play and can learn from the approaches of both rugby union and golf.

Golf has gone beyond the review panel or citing commissioner approach and anybody with an interest in the sport can flag up potential rule breaches which could significantly impact the final outcome of a tournament, the video of which will then be reviewed by the tournament organiser. Could this approach be applied to football? Given the difference in cultures, i.e. there seems to be higher moral standards and greater objectivity when applying the rules in golf, football would most likely need entire new departments and budgets just to deal with disgruntled calls and emails from partisan supporters.

Whether it is a matter of player safety, standards of player behaviour, the integrity of the competition or its image and reputation, sport must in the author’s opinion use retrospective video evidence for potential on-field rules’ breaches to uphold and enhance those objectives to make it an attractive and successful pursuit both from a sporting and commercial perspective.

 

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About the Author

Kevin Carpenter

Kevin Carpenter

Kevin is a advisor and member of the editorial board for LawInSport, having previously acted as editor. In his day-to-day work he has two roles: as the Principal for his own consultancy business Captivate Legal & Sports Solutions, and Special Counsel for Sports Integrity at leading global sports technology and data company Genius Sports.

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