VAR: 'Clear and Obvious' in Law?
In the latest article for The Legal Pitch, 2nd year LLB Law student Harry Dudley discusses the ongoing issues with VAR, using a perspective grounded in key legal concepts, with specific focus on the rule of law and statutory interpretation. Co-Founder, Fin Piper, provides an additional legal opinion on the lack of remedies available to those ill-affected by VAR’s mistakes. The pair conclude that the technological system is flawed, whilst suggesting some improvements that could be made.
In 2018 a “Historic step for greater fairness in football” was taken. The 132nd Annual General Meeting of The International Football Association Board saw the unanimous approval of the video assistant referee (VAR). Under the philosophy of ‘minimum interference – maximum benefit’, it aimed to ensure consistency and quality in refereeing, with an official outside of the game or the in-game referee scrutinising decisions. VAR was implemented in the 2019/20 Premier League season, and the rest is history… however, it has not been a history without issues.
A survey carried out in January 2020 found that 67% of people believed VAR made the game less enjoyable, whilst the same percentage thought it worked badly. These statistics may not come as a surprise to many football fans as it seems that a poor VAR decision currently stains each match-week.
So, what has gone wrong with VAR? Analysing VAR with some core legal concepts in mind may give a better understanding of why the system is failing. These concepts are:
i) The rule of law - specifically transparency and consistency;
ii) The interpretation of laws - in relation to the phrase ‘clear and obvious’ which has plagued football of late;
iii) The lack of remedies available to clubs who have fallen victim to VAR mistakes - in relation to the scope of the civil law.
This article aims to highlight some of the fundamental faults of VAR and its operation, using the above concepts to do so. This may swing any negative fan reaction to VAR towards the understandable.
The Rule of Law
The rule of law is a legal fundamental. In short, it is the belief that the law is supreme and reigns above all. For this to be so, two key elements are required: consistency and transparency. Adherence to these features when applying the law enables it to be supreme. Thus, for there to be a rule of law within football, application of the game’s rules must be consistent and transparent to ensure its supremacy. Supremacy allows it to reign over the game without question of its authority.
Therefore, we must consider if VAR consistently and transparently applies to footballing laws.
Legal scholar Joseph Raz stated that consistency when applying the law is crucial to the rule of law; stable decision making prevents inequality. A lack of inequality helps prevent dissent, as all parties are treated similarly. Consequently, the statistics outlined above, which criticise the system, suggest that there has been a lack of consistency when it comes to VAR’s application of the game’s laws.
A potent example of VAR’s inconsistency is its application of the handball rule. Tottenham’s Eric Dier was penalised, at the start of the 2020/21 Premier League season, against Newcastle for a handball, despite the fact that he was in the air, looking away from the ball and as such, could not move his arm knowingly in its direction. Decisions like this have been met with fierce opposition by those in the league - with Crystal Palace manager Roy Hogdson labelling VAR ‘a nonsense’ which is ruining the game. Rewind to the 2019/20 season; VAR ruled that Trent Alexander-Arnold’s action against Manchester City, where his hand moved towards the ball so blatantly that it seemed deliberate, was not a penalty. The disparity between decisions has been echoed on multiple occasions by VAR, with the resulting inequality leading to discontent amongst fans towards the system and thus, football’s laws. There can be no rule of law in football when there is no consistency in the application of its laws, and VAR contributes towards this issue.
Likewise, VAR fails in terms of transparency. The system seems wrapped in a veil of secrecy, where players and fans are kept from knowing or understanding decisions. As such it is no wonder that there is discontent amongst viewers. The process of using VAR in itself is opaque. Play is stopped, the referee holds his earpiece, ushering players away, while communicating with his peer in Stockley Park (the VAR hub) and then a decision is made. There is no communication with players or fans who are left perplexed whilst the course of the game is dramatically changed. In failing to communicate why an incident is being reviewed or why a decision has been made, discontent grows. A team can have its fortunes changed significantly and not know why this is the case. Applying this approach to the world generally, creates a daunting picture. Individuals would be penalised by the law, all the while not knowing what they had done or why such a decision had been made. This approach is like that from a dystopian fiction, where faceless authorities make destructive choices spontaneously and without repercussion. Its application would be deemed radical and illiberal if applied to the actual law and as such, it is no wonder why fans are opposed to the system.
There was hope that the introduction of the referee review area in the 2020/21 season would improve this flaw; this is the mini-screen at the side of the pitch. It allows the in-game referee to re-evaluate their prior decision, rather than the official in Stockley Park being the only reviewer. This move is one in the right direction, allowing the standard of refereeing to improve, with officials recognising their mistakes and resolving them. This re-evaluation aids transparency as it shows that those applying the law, the referees, are willing to admit to faults and learn from them, allowing their standard of performance to improve. Yet, further improvements could be made; there remains discrepancies between a VAR decision and the actual refereeing choice.
Hopefully, this feature can evolve, developing VAR into a system more like rugby’s television match official (TMO). Here, replays of incidents are put on the stadium’s screen, enabling the public to view them, whilst spectators are able to hear the discussions taking place between match officials. Both the visual and aural aspects here make TMO a totally transparent system. It enables fans to understand what is in focus and why a decision has been made. If these features were applied to VAR, the response towards the system would improve dramatically. However, in its current form, VAR is opaque. Unfortunately, it fails in respect to the two featured principles of the rule of law, making the negative feelings towards it seem justified.
The Interpretation of Laws
A further issue with VAR is found when measured against the concept of judicial interpretation. Otherwise known as statutory interpretation, this idea focuses on the way in which judges, legal practitioners, interpret the law. These interpretations dictate how judges apply the law. Generally, three rules of interpretation are used by judges when interpreting statutes: the literal rule, where words are given their ordinary/natural meaning; the golden rule, used to iron-out absurdity caused by a literal approach; the mischief rule, interpreting a law by taking into account the ‘mischief’ legislators aimed to get rid of, even if the legislation was ambiguous.
This concept and its rules reveal a further flaw with VAR. The FA’s sixth law states: “A video assistant referee (VAR) is a match official who may assist the referee to make a decision using replay footage only for a 'clear and obvious error' or 'serious missed incident'”. It is the interpretation of ‘clear and obvious error’ by match officials, who take the place of judges in this scenario, which is at fault. A literal approach dictates that VAR will ‘only’ be used when there has been a ‘clear and obvious’ error. There seems to be little ambiguity in this statement. VAR is only to be used when a mistake is obvious; not marginal.
However, it is clear that VAR has not been used as such. Instead, match officials have used VAR for the most trivial incidents, completely disregarding a natural interpretation of the law. VAR’s relationship with the offside rule highlights this point, with it disallowing goals despite incidents being far from obviously erroneous. They are so marginal in fact that, now infamous, lines are applied to still shots of play to decide whether a player is offside by mere millimetres. In November, Leeds player Patrick Bamford saw his goal ruled out as VAR deemed a hair’s width of his armpit to be offside despite the ‘lines’ suggesting he was level. These super-marginal incidents, which are scrutinised by VAR, completely disregard a literal interpretation of an unambiguous law of the game. The law’s lack of ambiguity leaves no room for the golden rule approach. Likewise, arguing that officials have used the mischief rule to interpret ‘clear and obvious’ is equally damning. Use of this rule is limited to when a law is ambiguous. So, to use it would suggest that the law surrounding VAR is in itself one of confusion.
Using VAR in this fashion inevitably causes dissatisfaction in fans. Either the law surrounding the system is being interpreted incorrectly by officials, or the law is naturally confusing. Regardless, the current state of the system is poor - creating a game which is scrutinised to a near unplayable degree.
The lack of remedies available to those impacted by VAR errors
When an individual or a legal person has suffered harm or a loss at the hands of another, the civil law system is established to hear their case and provide a remedy if that case is successful. The concept is basic, and seems inherent in our fundamental understanding of a stable, democratic society founded upon the rule of law.
And yet, in the microcosm of the use of VAR in football, the concept is practically non-existent, and on the rare occasion a remedy is provided for a misuse of the technology, which has potentially caused a game-changing error, it is often insufficient.
This issue has become increasingly relevant during the 2020/21 Premier League season. In two recent matches, Jan Bednerek and Thomas Soucek both received controversial red cards after lengthy VAR reviews. After appeals by Southampton and West Ham respectively, the red cards were overturned, and the standard remedy was applied; the ban the players would have received was removed. Although this may seem like a fair and equitable remedy, it does not capture the effect the mistaken red cards had on the game itself. Particularly in the case of Bednarek, the dismissal caused Southampton to be reduced to 9 men contributing to 9-0 defeat at the hands of Manchester United; a joint premier league record.
Such an inadequate remedy would rightfully be deemed unacceptable in the civil system. In tort law specifically, the principle of full compensation means that, theoretically, the victim should be indifferent between (i) not suffering the tort, and (ii) suffering the tort and being compensated in full. This indifference was clearly not felt by Southampton. Acknowledging the inadequacy of the remedies available, the club incredibly requested an alternative one - namely asking the referees responsible (Mike Dean and Lee Mason) no longer officiated the club’s games in the future.
With this request still pending, but looking unlikely to succeed, there is room to discuss alternative remedies that could be used, most obviously compensation. For example, when an individual suffers personal injury in tort law, a compensatory payment can be calculated on the basis of loss of future earnings due to inability to work. Some clubs may argue that the misuse of VAR has a similar effect on their income streams, most notably in the lucrative latter stages of the Champions League. Marcus Rashford’s 94th penalty to send Manchester United into the quarter finals of the 2018/19 edition of the competition was born out of a controversial handball decision, influenced by VAR. Reaching the quarter finals of the Champions League is worth an estimated £10 million, meaning clubs such as PSG may have a case to claim for compensation for lost revenue when VAR makes an obvious error.
However, due to the unpredictable nature of football, it is likely there will be too many complications and variables for such a system to be implemented. The most obvious solution is simple; the use of VAR must improve so that the need to devise a more effective remedy system fades away. A run of bad luck in VAR decisions can leave a manager out of a job or see a club lose out on millions of pounds. With the stakes set so high, and until the use of the technology improves, there needs to be a method which sufficiently compensates clubs negatively affected by VAR. Until that point, VAR will be deemed as flawed.
To many, the conclusion that VAR is faulty would have been obvious; however, the key legal concepts explored in this article give a greater illustration of some of the fundamental problems with the system and why it does not have the favour of many fans. It is a system which contradicts the rule of law, with its lack of consistency inevitably leading to discontent amongst spectators, whilst its lack of transparency and opaque operation create further opposition. The interpretation of the phrase ‘clear and obvious’ which plagues VAR has added to the problems. A seemingly absurd approach to the rule has been taken, leading to officials applying the game’s laws with a level of scrutiny which contradicts any sensible interpretation of the phrase. Finally, in the midst of all its flaws, there are no remedies which sufficiently compensate the impact that a VAR mistake can have on a game, club manager or player. It is a faulty system with no way or compensating for its mistakes and so fan dissatisfaction is justified. VAR has the potential to conjure the positive revolution it intended to, but change will be needed - with some potential improvements being suggested throughout the article. Only time will tell what will come of the system but for now, the fact that VAR is flawed is clear and obvious.