Lawsuits don't win football games

 Stephen Carter

By Stephen Carter Bloomberg View

Published Jan. 29, 2019

Lawsuits don't win football games
Oh, but we live in sour times. Next month's Super Bowl will feature the Most Hated Team in Football against an opponent who got there because of the Worst Call in Playoff History. Of the hatred I have nothing at present to say. Let's talk about that bad call instead.

Everybody agrees, and the video is clear, that the officials missed an obvious instance of pass interference in the waning moments of the game between the New Orleans Saints and the Los Angeles Rams. If the call had been made, the Saints would have made a first down and been able to run out clock to victory. Instead, the Rams got the ball back, tied the game and won in overtime.

Fans are angry, and angry people say silly things. So it was that one Saints season ticket holder called into a New Orleans talk radio show and suggested a lawsuit against the NFL. Online, pro-Saints websites came alive after the game with the idea of a class-action lawsuit claiming that the games are rigged.

That's right: a lawsuit. Threatening to sue is a very American response to a perceived injustice, but it's not obviously the right one. It's also been tried before - without notable success.

The most instructive case involved a high school football playoff game in Oklahoma in November 2014 between Frederick A. Douglass High School and Locust Grove High School. With the score 20-19 in Locust Grove's favor with 1:04 left, Douglass scored what appeared to be the go-ahead touchdown. But there was a problem. An excited Douglass coach, running down the sideline during the play, bumped into an official. A penalty flag was thrown, and the touchdown was disallowed. Locust Grove won.

The trouble was, the rules did not permit disallowing the touchdown for interference with an official. The touchdown should have stood, with the penalty assessed on the ensuing kickoff. No question: The call was wrong. Had it been made correctly, Douglass almost certainly would have won. The team's coaches argued, but game officials stood their ground. Later, the Oklahoma Secondary School Activities Association, which had jurisdiction, admitted the goof and apologized. The school district that encompassed Douglass High asked that either the entire game or the last minute and four seconds be replayed. The association replied that no grounds for such a replay existed.

The school district sued in state court, insisting that the rules did indeed allow a replay. But the district lost.

Judge Bernard Jones was sympathetic, agreeing with the plaintiffs that the way the game ended was a tragedy. "More tragic, however," he wrote, "would be for this Court to assert itself in this matter." To order a replay would be in its own way unfair to the participants in the game.

There is simply no way to fully and completely replicate the events and conditions of the disputed quarterfinal in such a way that would alleviate any and all anxiety or question of fairness. Unfortunately, whether in terms of the weather or field conditions, player fatigue, the actions of the coaches or referees, etc., on the day of the quarterfinal, there is no best way to right this wrong without creating even greater uncertainty or inviting further error.

This response surely frustrated Douglass fans and would provide little solace to furious Saints fans. But Judge Jones seems to me to have the reasoning right, not merely as a matter of law, but as a matter of how we experience sports . . . and, perhaps, life.

When I teach evidence classes, I explain to my students that the reason it's so hard to reverse a trial judge's decision on admissibility of evidence is that there are so many decisions in every case that even the best judge is bound to get a few wrong. If a trial involves 50 close rulings, the judge who gets one of them wrong still scores 98 percent. Were we to reverse every time there was an error, no trial would ever end, because the next trial would introduce another error, and so on ad infinitum.

One might object that it's one thing to talk about the possibility of bad calls in the abstract, and something else again to point to a particular one that almost certainly changed the outcome of the game. (According to ESPN's win probability calculator, when the Saints reached the Rams' 13-yard line with just under two minutes to play, the team's chance of victory was in excess of 88 percent.) But even if that's a reasonable objection - and I'm by no means certain that it is - this is hardly the first time a game, even a playoff game, has been decided by a bad call.

You can go back to 1908, when a baseball playoff for the National League pennant was forced after fans of the New York Giants swarmed the field, making it impossible to finish the season's final game, which would have decided matters. Or consider the 1986 World Cup quarterfinal, when Argentina's superstar Diego Maradona illegally used his hand to punch the ball into the goal against England. Nobody noticed but the players, the crowd and the television audience. In the first game of the 1991 World Series, the Minnesota Twins first baseman, with the ball in hand, openly and obviously shoved Atlanta's Ron Gant off first base, then tagged him with the ball. Gant, absurdly, was called out. Even if you want to limit your scrutiny to the end of games, there's the 1990 college football contest in which referees mysteriously awarded Colorado a fifth down, enabling it to defeat Missouri on the game's final (and completely illegal) play.

We could go on. Each call was, at the time, terrible and controversial. Each was eventually swallowed up by history. The terrible call at the end of the Saints-Rams game will provide conversational fodder aplenty in football's version of the hot stove league. But in a year or two, it'll be displaced by another . . . and that one soon after by another.

Sports would not exist without the passions and furies of the fans. But those of us who love the games should also demand of ourselves a certain phlegmatic acceptance of the most obvious way in which sports mirrors life: Sometimes bad things just happen.

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Stephen L. Carter is the William Nelson Cromwell Professor of Law at Yale, where he has taught since 1982. Among his courses are law and religion, the ethics of war, contracts, evidence, and professional responsibility. His most recent book is The Violence of Peace: America's Wars in the Age of Obama (2011). He is an author and Bloomberg View columnist.