Applying legal theories about interpretation and judicial decision-making to the use of the Video Assistant Referee (VAR) in professional football.

When I first decided to pursue a career in law, and then legal academia, I never suspected that my love of football might one day be relevant to my day job. But through my research into how legal theories of decision-making might apply to the controversial Video Assistant Referee (VAR) system I've been able to combine two of the biggest interests in my life.

Having begun teaching to help pay the bills during my study for the Bar, my academic career before joining the Open University was spent almost entirely in the classroom and the lecture theatre. One of the opportunities my OU role has allowed me is the chance to develop my research interests and as a central part of this I registered as an OU student myself to pursue my PhD part-time.

I've always been fascinated by how people make decisions. Of course, our common law legal system is heavily based on decisions, specifically the decisions made by judges, so it is not surprising that jurisprudence (the theory or philosophy of law) has paid particular attention to decision-making. What I am seeking to do in my research is to find out how far these legal theories might also describe match official (‘MO’) decision-making in modern football.

I am far from the first person to draw an analogy between MOs and judges, but a lot of earlier writers actually considered the two to have very different roles. Theorists pointed out that judges consider a range of evidence, had time to consider that evidence, needed to interpret the law and could potentially be subject to appeal. By contrast, MOs had only the evidence of their own senses, had to make instant decisions, applied the law rather than interpreting it and could not be appealed.

However, just as the law changes, so too does sport. In football, one of the most fundamental (and controversial) changes to the way the game is managed and officiated has been the introduction in recent years of “VAR” – the Video Assistant Referee. Used somewhat confusingly to refer to both the system and a particular person, VAR allows for video review of certain key match incidents. An additional official, the Video Assistant Referee (who I call the VARO, VAR Official) watches slow-motion replays from various angles. They then advise the referee as to what they have seen. The referee can choose to reverse their decision and/or view the footage themselves on a pitch-side monitor.

As such, a video-assisted decision involves a second official reviewing the decision made by a referee considering a range of evidence, taking time to consider it (some VAR decisions take several minutes) and interpreting the relevant rules. Suddenly, the role of MOs starts to sound a lot like the role of a judge! Given that VAR has been very controversial, especially in exposing a tension between the “letter” and the “spirit” of the rules, I decided to explore whether jurisprudence about decision-making might be usefully applied to VAR in football.

In the 19^th and early 20^th centuries, most Anglo-American jurists took a ‘formalist’ view of judicial decision-making: judges simply apply the rules to the facts and reach a clear conclusion. As those who study law will know however, there are plenty of cases where judges do not simply “follow the rules”. This led to a counter-theory known as ‘realism’. Realists posit that judges actually decide cases based on their own view of the case, not the legal rules. At its most extreme, realism holds judges have complete discretion as to what they decide and has been characterised as saying that “what a judge decides depends on what they had for breakfast”! I posit that neither formalism or realism is tenable alone as a model for VAR-assisted decisions. Decisions remain controversial even when the material facts are indisputably established by the evidence.  It is absurd to say referees have no discretion, or that there are no cases where the rules are incomplete, ambiguous or unclear. Yet a strong reading of realism is equally unsatisfactory when applied to the football MO. Football is a rule-based sport and while it cannot be said there is a clear and universally-accepted ‘right’ answer in all cases, it certainly can be said that there is such an answer in many cases. So, a theory of unbridled judicial discretion cannot encapsulate the role of the MO.

Instead, my research intends to apply a number of theories based on an ‘interpretive’ approach to judicial decision-making. These theories were popularised by Ronald Dworkin, who argued that in ‘hard cases’ a decision-maker can go beyond the legal rules, but does not have complete discretion. Instead, they must choose between competing ‘principles’. Judges select the best general principle (a legal example would be “a wrongdoer should never benefit from their own crime”) and use that principle to choose the interpretation that is most consistent with that principle. This is most clearly demonstrated by Dworkin’s chain novel analogy, where judges are writing a new chapter (their decision) in a novel (the law) that is their own best interpretation of what has gone before.

There is a small but growing scholarship considering the application of interpretive theories to decision-making in the specific context of VAR. There is also extensive empirical research into match official performance, considering a wide range of variables that might affect decision-making, from crowd noise, to the official’s physical fitness, to the need for ‘game management’. The aim of my project is to combine theoretical understanding of legal theory with empirical, practical research into MOs use of VAR. I want to speak to MOs and find out how much a model based on “principles” can provide a practical method for making decisions. It is my intention to make the “significant contribution to knowledge” required for a PhD by providing insights into both the practical value of interpretive theories and into best practice in adjudication, whether in the context of football or beyond.  

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Fred Motson 

Fred is a Lecturer in the Law School at the Open University. His career in Higher Education has been predominantly focused on teaching and Fred has taught across more than 20 different areas of law, at levels ranging from foundation level to postgraduate and professional courses.
 
Fred was heavily involved in designing and writing the new LLB Law degree which went live in 2021–2024, having written units on W111 Criminal Law, W112 Tort and Civil Justice, W211 Public Law, W212 Contract Law, W311 Trusts Law and W323 SQE: Business Law and Dispute Resolution. Fred is currently Chair of the 23J presentation of W112. He also teaches Equity, Trusts and Land Law as an associate lecturer.
 
After more than a decade of full-time teaching, Fred became a student once again in 2021 when he commenced studying for his PhD through The Open University. His research combines two of his main interests, sport and technology, as it is focused on applying legal theories about interpretation and judicial decision-making to the use of the Video Assistant Referee (VAR) in professional football.