Justice Scalia on Arbitrary Sports Rules

On Sunday Russia defeated Spain in the World Cup, pulling off one of the biggest upsets in soccer history. After 90 minutes of regulation play and 30 minutes of extra time, with the teams deadlocked 1-1, the game came down to a penalty kick tiebreaker. Five Russian and five Spanish players took turns trying to kick the ball past the goalies from 12 yards out. By the time the shootout ended, the Russians managed to score 4 goals, one more than the Spanish squad. When Russia’s goalie blocked Spain’s fifth and final penalty kick, all of Russia erupted in celebration.

The match’s outcome revived a long-standing debate over the fact that FIFA, the governing body of international soccer, breaks ties (or “draws,” in the parlance of international football) through penalty kick shootouts. The tiebreaker format strikes many as inconsistent with the team-oriented nature of soccer, particularly because the shootout involves an individual contest between a kicker and a goalie. Consequently, soccer purists view penalty shootouts as an arbitrary way to end a match, especially one as important as a World Cup elimination game.

But are the critics right that soccer shootouts are arbitrary? The late Justice Antonin Scalia would likely have said that the critics have missed the larger issue. He believed that all sports rules were arbitrary by their very nature, a point he made in an interesting Supreme Court case.

Scalia’s Dissent in PGA Tour, Inc. v. Martin

In 2001 the Court heard the case of PGA Tour, Inc. v. Martin, which arose from an unusual lawsuit by Casey Martin, a professional golfer. Martin suffered from a degenerative circulatory disorder that atrophied his right leg and eventually prevented him from walking 18-hole golf courses. Accordingly, he brought suit to force the Professional Golfers Association Tour to permit him to ride a golf cart rather than walk from hole-to-hole, as PGA rules required.

In a 7-2 decision written by Justice Stevens, the Supreme Court ruled in favor of the golfer, holding that “the walking rule is at best peripheral to the nature of petitioner’s athletic events, and thus it might be waived in individual cases without working a fundamental alteration” to professional golf tournaments.

But in a dissent joined by Justice Thomas, Justice Scalia took the majority to task for exercising “a benevolent compassion that the law does not place it within our power to impose.” After rejecting the notion that the Americans with Disabilities Act even applied to a professional golfer, Scalia emphasized the inherently arbitrary nature of sports rules. 

In the world of sports, he explained, “[t]he rules are the rules. They are (as in all games) entirely arbitrary, and there is no basis on which anyone—not even the Supreme Court of the United States—can pronounce one or another of them to be ‘nonessential’ if the rulemaker (here the PGA TOUR) deems it to be essential.”

Surveying the world of sports, Scalia concluded that the Court was on a fool’s errand in attempting to determine the “essential” elements of any sport:

“Either out of humility or out of self-respect . . . the Court should decline to answer this incredibly difficult and incredibly silly question. To say that something is ‘essential’ is ordinarily to say that it is necessary to the achievement of a certain object. But since it is the very nature of a game to have no object except amusement (that is what distinguishes games from productive activity), it is quite impossible to say that any of a game’s arbitrary rules is ‘essential.’”

The crucial point, Scalia emphasized, was that all sports-related rules evolved from arbitrary traditions:

“Eighteen-hole golf courses, 10-foot-high basketball hoops, 90-foot baselines, 100-yard football fields—all are arbitrary and none is essential. The only support for any of them is tradition and (in more modern times) insistence by what has come to be regarded as the ruling body of the sport.”

In Justice Scalia’s view, therefore, it was up to the PGA Tour and not the Supreme Court to decide whether walking the course was an “essential” element of the game of golf.

The Danish Question, The Mailman, and Justice Scalia

Scalia’s opinion in the PGA case is one of the subjects of a new article by Ilhyung Lee in the Southern California Interdisciplinary Law Journal called “The Danish Question, The Mailman, and Justice Scalia: Examining the Group Play Tiebreaker Rules.” In it, Professor Lee contends that sports rules closely parallel the decision-making process that gives rise to societal laws. As he explains:

“[R]ules of sport are akin to laws of society, in that both govern activity, whether in an arena or within a territorial jurisdiction. A sport’s rules and regulations reflect the purpose and goals of the governing body (sometimes guided by the elusive ‘best interests’ of the game), just as the legislature’s enacted laws reflect the public’s will and desire. Thus, rules for addressing similar situations may differ from one sport to another, as laws may vary from one jurisdiction to the next.”

The article’s title refers to a question asked of the basketball star Karl “The Mailman” Malone by a Danish reporter during the 1996 Summer Olympics in Atlanta. The reporter asked:

“I am from Denmark and I am new at this. Why do you get two points for a basket?”

Taken aback by the humble yet profound question, Malone answered:

“Why? I don’t know. That’s just the way we do it in America, my man.”

In fact, as Professor Lee points out, there is an internal logic to basketball’s scoring system. A 2-point shot from the field is considered more difficult than a 1-point shot from the foul line, and thus deserving of a greater reward. Similarly, a long-distance shot far from the basket qualifies for 3 points. The context in which rules are adopted thus makes the rationale behind the rules easier to see and understand.

Nevertheless, a degree of arbitrariness is inescapable when it comes to the process of line drawing. For example, where should the line be drawn between a 2-point shot and a 3-point shot? In the National Basketball Association, the 3-point-line is nearly 24 feet from the basket. In the Olympics, on the other hand, the rulemakers place the 3-point-line about 22 feet from the basket. Is either approach more arbitrary than the other? And if so, who is to say?

For a sport to function coherently, much like society itself, somebody has to draw the line somewhere. As Professor Lee observes, “The task of line drawing—literally in sport and figuratively in law (in the determination of what is within and beyond permissible activity)—is the very province of the sport’s governing body or the legal institutions of a jurisdiction, respectively.”

Fittingly in light of Sunday’s outcome, Professor Lee’s article also explores the “arbitrariness” of penalty shootouts in World Cup matches. As he points out, the issue first came to the forefront in 1994, when Brazil prevailed over Italy in a penalty shootout to win the World Cup final. The fact that the championship was determined in a shootout generated so much criticism that FIFA’s General Secretary at the time, Sepp Blatter, admitted that he was “not happy” with the way the match was decided.

But the limits of the human body seemed to dictate no other result. The extreme fatigue that soccer players experience after 120 minutes of regulation and overtime—especially under the intense stress of a World Cup match—make it unreasonable to extend regular play beyond the two-hour mark. In FIFA’s view, therefore, the penalty shootout format represented the lesser of two evils. The bottom line, Blatter explained in 1994, was that “[w]e have to have a winner at the end of the competition.” A quarter-century later shootouts remain the format used to break World Cup ties, as the Russia-Spain match on Sunday so memorably demonstrated. 

Professor Lee concludes that “[u]ltimately, the game’s rules, like a society’s laws, reflect the values and culture of the jurisdictional base that enacts them.” In the case of soccer rules, FIFA seems to have accurately reflected the values and culture that shape the world’s most popular sport. Over 3 billion people watched the World Cup in Brazil in 2014, and by the time the 2018 World Cup ends in Moscow on July 15, it will undoubtedly have set a new world record for television viewership. Penalty kicks may be an arbitrary way to decide a match, but three billion soccer fans don’t seem to mind.  

Comments

[anon]

Don't forget the Denmark v. Croatia game, also resolved by penalty kicks. (Croatia won.)

[Anon]

You have to have a winner, so we get shootouts. This may represent the only time Sepp Blatter was right about anything.

[Anon]

Isnt it clear the Russian team is doping? Seems clear to this viewer.

[Anthony Gaughan]

anon,

That's a good point about the Denmark-Croatia game. I should have mentioned it too. Thus far, 2 of the 6 quarterfinalists (Russia and Croatia) have advanced on penalty kicks, and we still have two additional quarterfinal games to play, plus 7 more games after that. So we may well see more tiebreaker shootouts before the tournament is over.

[Patrick S. O'Donnell]

Re: “But since it is the very nature of a game to have no object except amusement (that is what distinguishes games from productive activity), it is quite impossible to say that any of a game’s arbitrary rules is ‘essential.’”

The essence of games as “amusement” might be true in those instances where “the action begins and ends in itself” (‘it is not the marbles that matter but the game’), where, in the words of Johan Huizinga, “the result of the game is unimportant and a matter of indifference.” But I doubt it’s true that “amusement” is the only object of a game, which would appear to render it the essence of a game. Although such a view is not far from Bernard Suits definition of a game as “the voluntary attempt to overcome unnecessary obstacles” (a definition that may have some relevance to a conception of art in which work is also play, and involves both conventions and constraints that serve, in one sense, as both necessary and unnecessary ‘obstacles’ that, when overcome, enable creativity).

Organized professional sports, as one type of “game,” and all of which, in turn, are more or less a species of play, have several “objects” in view, even if we’re restricting our reference to the class of spectators. We seem to vicariously identify with the various athletic skills of the athletes and, in the case of the world cup, fans often participate—vicariously or otherwise—in the group identity that takes nationalist form. Perhaps one could place this under amusement in the sense of pleasure or a diversionary interest of some sort, but then how does that account for such things as “football hooliganism” or the range of emotional expressions one sees during these games, or the importance ascribed to more than a few parties in winning, either a particular game, or the World Cup itself (one can make the requisite analogies with the PGA). And of course professional sports are money-making enterprises which makes them one kind of capitalist “productive activity” and thus these types of games are not in the first place distinguishable as games from “productive activity” (moreover, ‘game theory’ and ‘gamesmanship’ in politics remind us, ‘amusement’ does not aptly characterize the ‘very nature of a game’).

And the (‘profane’ or secular) ritual quality of or the ritual elements in sports events, ranging from the fairly serious or dour to the pompous and silly, appear increasingly, in one way or another, to be one of the principal properties of modern, professional sports (which may be amusing to those on the outside-looking-in!). Finally, think of the rhetoric of “war games:” “Ever since words existed for fighting and playing,” writes Huizinga, “man have been want to call war a game.”

That the nature of a game (or games) in our world (in other words, looking at prominent games in our society), at least in professional sports, is not reducible to “amusement,” is crystallized in the conclusion of Huizinga’s class, Homo Ludens: A Study of the Play-Element in Culture (1950, first edition in German, 1944): “Now, with the increasing systematization and regimentation of sport, something of the pure-play quality is inevitably lost [this was written before sabermetrics in baseball!]. [….] The spirit of the professional is no longer the true play-spirit; it is lacking in spontaneity and carelessness” (Huizinga notes that this has also affected—‘infected—‘the non-athletic games where calculation is everything, such as chess and some card-games’).

And invoking the distinction (which, as Frederick Schauer reminds us, is not hard and fast) between “constitutive” and “regulative” rules in the case of sports, one might plausibly claim the former are essential while at least some of the latter are not, indeed, at least some of these might be considered “peripheral,” at the very least, they are not essential to the sport in the way its constitutive rules are, hence they are more liable to change: be it through addition, subtraction or elimination, alteration, etc. In brief, there are sports and there are sports; there are games and there are games; and there is play and there is play.

[Patrick S. O'Donnell]

erratum (3rd para., 2nd sentence): World Cup.

[anymouse]

It is a draw after regulation and overtime, so naturally they play the soccer equivalent of a game of "horse". It is silly but the sport is frightfully boring.

[Enrique Guerra Pujol (priorprobability.com)]

Let’s not confuse low scoring with boring. At least soccer is not riddled with time outs and (excepting the limited use of the video assistant referee) lengthy review delays. Allez France!