In recent years, the use of technology to assist the on-field decision-making of referees and umpires has increased dramatically. In recent weeks, contentious decisions and faulty video-imaging have meant that the use of video technology in on-field decision-making has remained under scrutiny. At the same time, Video Assistant Referee (VAR) technology will make its debut at this summer’s FIFA World Cup in Russia. The underlying aim of such technology is to improve the views available to decision-makers to enable them to make more accurate decisions. But how far can a sports participant challenge an incorrect decision made using video technology, in particular, if that decision was the result of faulty or incorrectly interpreted technology?
Current use of video technology in sport
The use of video technology to assist on-field decision-makers has been commonplace in North American sports leagues since the early 90s. Tennis umpires have been permitted to use video technology since 2006, and cricket umpires since 2009. Providers of such technology use a computerised system to triangulate video footage and data from multiple cameras to create a 3D representation of the trajectory of a ball, in almost real-time. This representation is then interpreted by the on-field decision-maker (or an off-field decision-maker in communication with the on-field decision-maker) to make an on-field decision on the relevant issue.
Similar technology has more recently been introduced into faster-paced sports, such as rugby league, rugby union and football. In January 2018, IFAB (the body that determines the laws of football) announced the provisional results of its VAR experiment. Whilst the report acknowledged that 100% accuracy would be impossible ‘due to human perception and subjectivity in decision-making‘, accuracy in the categories of decision-making that were studied was said to have increased by 5.9% to 98.9%. The system used in the experiment enabled a VAR to review the match on video for ‘clear and obvious errors’ or ‘serious missed incidents’ and inform the on-field referee if he/she became aware of one. The referee is then entitled to rely on the VAR’s decision, or to review the error/ incident on a pitch-side tablet. The report revealed referees’ preference for pitch-side review because it emphasises the role of the referee in on-field decision-making, as opposed to an unseen, unknown decision-maker. Trials have continued and notwithstanding ongoing concerns, FIFA confirmed, in March 2018, that VARs would be used at the 2018 World Cup.
The regulatory context
It is a central premise of many sports that the referee or umpire is the final arbiter of fact and law on the field of play. To accept otherwise would be to undermine the finality in decision-making that sport requires. World Rugby has made it clear that the Television Match Official ‘is a tool to help referees and assistant referees. The referee should not be subservient to the system … The referee is the decision-maker and must remain in charge of the game’ (World Rugby TMO Global Trial Protocol). Similarly, cricket umpires are empowered to control the game, but they retain a discretion to refer certain decisions to the third umpire, or to consult with the third umpire in relation to certain decisions. The on-field umpire must then make a final decision based on the information provided by the third umpire.
In tennis, the situation is slightly different. A chair umpire is the final authority on all questions of fact during a match, but if an Electronic Review is used, the chair umpire’s final decision must be the outcome of the Electronic Review. In all these sports, it is clear that the use of video technology is subject to or in place of the decision-making of the referee or umpire.
How far can a participant challenge the decision of the on-field decision-maker?
Historically, a decision made by an on-field referee or umpire was regarded as non-justiciable. That is to say that an off-field appeal body would have no jurisdiction to interfere with decisions made on the field of play. The rationale had multiple grounds: that sporting decisions are best taken by those with specialist expertise rather than judges; that sport should not constantly be interrupted; that there is an inherent subjectivity in in-play decision-making; that to accept jurisdiction would open the floodgates; and that any off-field decisions overriding on-field decisions would lead to significant difficulties in adjudicating sporting results.
The Court of Arbitration for Sport (‘CAS’) has accepted that the field of play is not entirely immune from legal scrutiny. However, for the reasons noted above, the CAS has exercised restraint and such scrutiny has remained limited to official’s decisions that are tainted by corruption, fraud or arbitrariness. The appellant must show direct evidence of bad faith: this is a high hurdle. The principle underlying this approach was explained by CAS in Yang v Hamm, a case involving a request (made after the event) to reallocate medals on the basis that the officials had made an error when assessing the difficulty of a gymnastics routine: ‘to the extent that the matter is capable of analysis in conventional legal terms, it could rest on the premise that any contract that the player has made in entering into competition is that he or she should have the benefit of honest ‘field of play’ decisions, not necessarily correct ones.’
The CAS panel clearly stated that a judging error by an official, even one that is later admitted, will not constitute grounds for reversing the results of a competition. It also directly addressed the justiciability of decisions made by officials as a result of the use of technology: ‘Each sport may have within it a mechanism for utilising modern technology to ensure a correct decision is made in the first place (eg cricket with run-outs) or for immediately subjecting a controversial decision to a process of review (eg gymnastics) but the solution for error, either way, lies within the framework of the sport’s own rules; it does not licence judicial or arbitral interference thereafter. If this represents an extension of the field of play doctrine, we tolerate it with equanimity. Finality is in this area all-important: rough justice may be all that sport can tolerate.’
Critically, sport is organised on a private contractual basis, whereby athletes and other stakeholders agree to a framework of regulations that govern the sport as well as the rights, obligations and conduct of participants within it. Therefore, as explained in Yang v Hamm, the regulations of a sport should provide a solution in the event of any video technology error. To date, sports appear to have taken the policy decision to subordinate the decision-making of video technology to the decision-making of the on-field referee or umpire. In that way, video technology is one means amongst others that a decision-maker can use to reach a decision and therefore any error that might occur is dealt with in the same way as an error made by the decision-maker themselves.
In Nekyova, CAS heard a challenge against race results based on the accuracy of the technical photo finish and timing equipment used during a rowing race at the Athens 2004 Olympic Games. The athlete was unable to demonstrate that the equipment was inaccurate and the panel did not therefore determine the extent to which CAS could review a field of play decision made based upon faulty equipment. But the case did not rule out the possibility that in a persuasive factual matrix, a panel hearing an appeal against an on-field decision based on faulty video technology could be compelled to disturb a decision taken by a referee or umpire, after the event. Such circumstances, however, are likely to be few and far between.
The fact that a sporting event has already been contested and a victor determined is a strong rationale not to interfere after the event. Referees and umpires in sport are appointed to independently determine the result of the sporting context and there is a presumption that the decisions taken by such personnel are honestly-taken, if not always correct. Video technology is employed to help increase the accuracy of that decision-making. It is imperative therefore that any video technology systems used by a sport for this purpose are reliable and accurate. Reliability and accuracy will contribute towards the finality and credibility of sporting contests; unreliability and inaccuracy will do the opposite.
 See Part 1 here.