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‘Clear Error’: How a complex legal concept explains FIFA’s video review system

VAR, explained by an attorney.

Sweden v Korea Republic: Group F - 2018 FIFA World Cup Russia Photo by Elsa/Getty Images

It was a hot day, even for July. On that afternoon in 2006, Berlin’s Olympiastadium was baking in the midsummer heat as the French and Italian players finished their warm-ups. As night fell the two teams battled for ninety aching minutes. As the clock ticked past the 105th minute, Gianluigi Buffon collected a ball and punted it upfield towards a waiting Luca Toni. The referee blew the play dead—an Italian defender was injured, it seemed. Unsure what exactly had occurred, head referee Horacio Elizondo of Argentina jogged over to confer with his linesman.

On replay of this conversation you could see their eyes dart up to glance at the Jumbotron — they were watching video of what occurred. After another few moments, Elizondo jogged back onto the pitch towards French legend Zinedine Zidane, red card in hand. The moment has been dissected from every possible angle; it even became immortalized by one of the greatest poets of the 21st century, Claudia Rankine.

Twelve years after that sweaty night in Berlin, FIFA officially introduced Video Assisted Referee, or VAR, to the World Cup. We’ve seen thinkpieces on what this new development means, and we’ve heard countless talking heads commemorate 2018 as the first use of VAR at the World Cup. But, of course, this isn’t true — the first use of video to overturn a referee’s mistake in the World Cup was on that July night in 2006.

And, Zidane’s headbutt — regardless of the merit of the action (I encourage you to listen to Rankine’s poem) — was a clear ejection. Elizondo missed it, and the Jumbotron video fixed it. A red card was the right call (even if Materazzi deserved three punches in the chest.) Elizondo got it right, eventually.

Final Italy v France - World Cup 2006 Photo by Ben Radford/Getty Images

A significant amount of worry associated with the transition to VAR has focused on the standard by which the virtual referee will override the head referee. Soccer, after all, is a game of inches, and referees make hundreds of judgment calls throughout the course of a game — did Pique drag Cristiano Ronaldo to the ground, or was the Portuguese forward looking for the contact? Did Harry Kane push off Raphaël Varane or was it just regular jostling?

Obviously, there are some situations where VAR use is an easy decision: for example, a player is either offside or she’s not. If a referee misses an offside call, then we can fix it.

It’s where the referee makes those split-second judgment calls that VAR becomes problematic. To deal with this issue FIFA adopted a standard of review for all judgment calls: whether there was a “clear and obvious error”. This may seem like a meaningless legalism, but it’s not — and to understand why we need to understand the basics of legal error.

The notion of a standard of review comes from the law, where judicial decisions are occasionally reconsidered by higher appellate courts (“appellate” comes from the verb “to appeal,” which means, essentially, to ask). When a lawyer refers to a case being “on appeal” what they mean is one of the parties has asked a higher legal authority to review the lower court’s decision for errors. That, in essence, is what occurs when a referee’s decision is reviewed by VAR.

However, judicial decisions are not all reviewed at face value — or de novo. In any appellate proceeding, different aspects of the lower court’s decision are reviewed under different standards. The court reviews questions of fact, for example, only for “clear error”; matters of discretion, however, are reviewed under a “abuse of discretion” standard. These two standards are materially different: a “clear error” is a significantly deferential standard, requiring a “definite and firm conviction that a mistake has been committed”; and “abuse of discretion” is “a plain error, discretion exercised to an end not justified by the evidence, a judgment that is clearly against the logic and effect of the facts as are found”.

Basically, this means that higher courts are extremely deferential to lower courts on issues relating to the facts of a case. So, for example, a reviewing court would not overturn a lower court’s determination that the plaintiff slipped on ice outside the defendant’s store, even if the defendant produces a witness saying that the sidewalk wasn’t slippery that day. Instead, the reviewing court would need a “clear error”: in this case, a clear error would be that the lower court didn’t consider that it was 80 degrees out and the defendant had covered the sidewalk in sand hours before the supposed accident.

If the “clear error” standard sounds familiar that’s because it is: the standard for overturning a head referee’s decision by VAR is “clear error” (though we like to expand it to “clear and obvious error”). As in American law, the “clear error” standard for FIFA is highly deferential: the video assistant must, essentially, have a definite and firm conviction that the head referee made a mistake. Because this is a deferential standard, judgment calls — like whether a player was jostling normally or tugged to the ground — will rarely be overturned. Other calls that involve certain objective realities, like whether a player was offside, or whether Mohammed Salah was inside or outside the box when he was fouled, are more likely to be changed by VAR.

This is not to say that VAR–even using the clear error standard — will have no unintended consequences. In fact, we know that it has: referees have already subtly altered the way they call a match to account for the possibility of a review. For example, we’ve seen referees call more fouls outside the box because they know VAR will review the play to determine if the foul occurred within the area. Assistant referees were also explicitly told to avoid calling offside in situations where the play is on the borderline — an offside call stops play, which is a final act, preventing any further attack. On a very close play keeping the flag down makes sense — if the team scores, VAR will review the goal for offsides anyways, but if the assistant makes the call in open play it ends the scoring chance instantly.

Ultimately, the clear error standard works well precisely because it is highly deferential: while a video assistant referee will always be watching the match, he or she will very rarely get involved. And when he or she does get involved it will almost always be to correct an objective error — like giving a red card to Zinedine Zidane on that muggy night in Berlin 12 years ago.