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Tuesday, January 30, 2007
Sports Leagues as Courts of Appeals

The NFL this week fined the Saints' Reggie Bush $ 5000 for taunting the Bears' Brian Urlacher during Bush's touchdown catch-and-run in the NFC Championship game. Bush pointed towards Urlacher (running several yards behind him) at the end of the run, then did a front somersault into the end zone.

What is interest is that Bush did not draw a taunting penalty on the play. In other words, the game officials on the field either did not see it (unlikely, because it was pretty hard to miss, especially the somersault) or did not think it was worth a flag. Given that, I wonder how appropriate it is for the NFL to assess a fine.

Compare the usual (although not absolute) practice of courts of appeals. They generally will not address issues that were not raised and considered by the trial court. And they generally will defer to certain decisions that trial judges are deemed better able to make from their on-the-ground vantage point in a case (usually involving things such as witness credibility and the like).

League-imposed fines can be seen as an additional punishment, imposed from above (on appeal, if you like) and directed towards the individual player, a supplement to the in-game punishment assessed by the game officials. Not every penalty flag warrants a player fine. But perhaps the league should stay its hand in the opposite situation. If game officials did not believe an infraction occurred at the time, the leagues should defer to that initial determination and not impose a penalty or fine after-the-fact.

Some of this gets into whether we trust game officials on the ground to get things right and whether review from above, usually with the help of video, is proper and necessary. But that gets into what I think of instant replay, which is another, much longer post.


I think you've identified the key difference between the leagues and an appellate court: the league reviews a different "record" than what the officials saw, but appellate courts are confined to the record built in the trial court. So more deference is due in the appellate court situation because is already looking at exactly that the court is looking at. In the league context, no official might have seen what the camera saw, and certainly no official saw what the camera caught from the angle that the camera caught it.

Anonymous Anonymous -- 1/31/2007 8:06 AM  

Anon, interesting points, but I differ.

I love the idea of the NFL as appellate court--and in this situation, it did exactly what some appellate courts can do. It's an overstatement to say they're wholly confined to the record; some things can be raised for the first time on appeal (such as subject-matter jurisdiction) and some things are just so important (certain constitutional and ethical issues) that an appellate court can address them sua sponte.

Additionally, no appellate court has ever seen "exactly" what the trial court looked at--indeed, far from it, and deference is often granted because the appellate court "cannot smell the smoke of battle, see the look on witnesses' faces," and so forth as the idea goes.

The Reggie Bush situation is more like attorney misconduct that an appellate court takes judicial notice of. As you note, different factors may have resulted in the officials at the game not calling the penalty (perhaps they thought in context it wasn't bad, the angle was obscured, Saints were losing . . . ), in the same way a trial court may not sustain a valid objection or curtail certain behavior.

However, the NFL noticed, and doesn't need an official to say "we saw what you did, and we don't like this." I think this serves an important function for the sport as a further disincentive towards misconduct (the primary one being a penalty during the game).

Great post! By the way, that run was AWESOME.

Blogger gorjus -- 1/31/2007 11:19 AM  

This situation is very simiilar to what happened to Kobe Bryant two nights ago against San Antonio, when he was suspended for last night's game against the Knicks in New York for elbowing Manu Ginoboli after taking a jumper in the corner at the end of the ball game. There was no foul called on the play, (maybe because the refs did not want the game to end at the foul line). However, the NBA stepped in and suspended Kobe. Shouldn't a Leauge Office look at what happend on the play, and what the official's call was before assessing a fine and/or suspension?

Anonymous Anonymous -- 1/31/2007 12:23 PM  

Gorjus -

To clarify my post, appellate courts are confined to the record with respect to facts, though they entertain new legal arguments on appeal. The issues you raised are legal arguments.

In the sports league context, the league examines different facts (camera evidence vs. what the officials saw) and that's what separates them from an appellate court.

Anonymous Anonymous -- 1/31/2007 1:33 PM  

I'm not an attorney, but I do know that the NFL commissioner has final and foremost authority as the self-governing arbiter of the wishes of his membership, meaning the owners. Correct me if I'm wrong, but is not the commissioner the only figure in any sport who can take action to cancel a game? I strongly believe that no chief official or referee can make such a unilateral decision in any professional sport. This has to represent more than mere circumstantial evidence that the league, vis-a-vis the commissioner, is not bound by the situational interpretation(s) of its on-field officials, and that the league is well within acceptable boundaries to determine itself, using whatever legitimate means at its disposal, which is right and which is wrong. The post-game review is not so much an appeal, but more to the point a reverse presidential pardon, for lack of a better analogy.

Anonymous Law-yore -- 2/01/2007 2:54 AM  

Anon, again I must disagree. There are at least two times when a finding of fact will not be followed by an appellate court. First, let's say we're in a judgment notwithstanding the verdict position. If the appeals court determines that no reasonable juror could have determined a certain fact in a certain way, it can refuse to obey that finding.

Similarly, when reviewing a trial without a jury (as in a Mississippi chancery court), there is a general deference to the trial court's findings of fact, but they can be dismissed if they are manifestly wrong or clearly erroneous. See generally Saliba v. Saliba, 753 So. 2d 1095, 1098 (Miss. 2000).

Again attempting to make the analogy work, I think we can say that the NFL/appellate court decided that the "finding of fact" by the trial court/referees was "manifestly wrong or clearly erroneous." In other words, they shoulda called the penalty. They didn't, but the NFL did.

Blogger gorjus -- 2/01/2007 2:29 PM  

gorjus -

You have exposed my sloppy terminology, but I'm not convinced. Rather than "facts," substitute evidence in my original post. An appellate is always confined to the evidence in the record, even if draws different "findings of fact" from them than the trial court.

In a football league setting, the evidence the "trial court" sees what the official actually saw. But the "appellate court" sees what the television camera saw. In other words, it sees different evidence than the offical says. Contrast actual appellate courts, who are confined to the same evidence reviewed by trial courts.

Anonymous Anonymous -- 2/01/2007 3:25 PM  

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