Retrospective trial by video evidence in sport

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