Saturday, December 23, 2017

Fagundes: The NFL Got It Right (for once)

DavidFagundesAll right, let me get this out of the way first thing: I’m a Patriots fan. Have been since 1993, when the era of “Patsies” ineptitude was a more salient association with the team than the current Brady/Belichick “Evil Empire” narrative. 

That said, I am going to make the case that whatever my personal biases may be, as an objective matter the officials made the right call to reverse Pittsburgh tight end Jesse James’ (non-)catch in last Sunday’s game between the Pats and the Steelers, and even that the highly controversial “survive the ground” rule is good and should remain.

Begin with a very simple analogy to property law: Not all physical control over a thing evidences legal ownership. There are lots of easy examples: If you toss your keys to a valet, she doesn’t own your vehicle as soon as she catches them. (Also, why are you tossing your keys to a valet? Are you pretending to be in a Mentos commercial?) And if you let your friend stay in your house when you’re on vacation, he doesn’t take title as soon as he sets foot inside. They may say “possession is nine-tenths of the law,” but they also say things like “Alabamians will always prefer a child molester to a Democrat.” They happen to be wrong a lot of the time.

So to return to the topic at hand (thankfully), the point is that not every instance of physical control of the football results in a player’s possession of it. If a wideout makes a brilliant sideline catch but has one foot on the sideline, he doesn’t get possession. And for our purposes, if a tight end catches the ball briefly while falling to the ground, and then bobbles the ball on the way to the ground only to have the turf knock it loose entirely, that is not possession and it never was. 

The NFL rule is clear on this: 

“A player is considered to be going to the ground if he does not remain upright long enough to demonstrate that he is clearly a runner. If a player goes to the ground in the act of catching a pass (with or without contact by an opponent), he must maintain control of the ball until after his initial contact with the ground, whether in the field of play or the end zone. If he loses control of the ball, and the ball touches the ground before he regains control, the pass is incomplete. If he regains control prior to the ball touching the ground, the pass is complete.”

And for what it’s worth, this is also something that most NFL fans understand instinctively. I’ve very often seen players on my team and the opposing team snare the ball mid-air, but then lose it upon colliding with the ground, and my immediate reaction is that it’s not a catch. So the “survive the ground” rule is not some obscure technicality, it’s one I (and, I think, most observers of the game) uncontroversially understand to be true in most instances.

So why was invalidating James’ catch even controversial? Well, partly because it was called a catch and then reversed; this always makes it seem like the refs are vacillating and that the outcome is debatable, though it really shouldn’t. Calls are hard to make in an instant, and refs don’t have a perfect perspective. Video gives them a chance to get calls right, and that is way better than the previous world in which we were all stuck with terrible calls that were shown on video to be clearly wrong.

What seems to have most people confused, though, is that while he was going to ground, James broke the plane of the goal line with the ball. And it is true that in most cases, breaking the plane of the goal line means you’ve scored a touchdown, regardless of what happens after. So in this case many people’s instinctive reaction was that the play should have been dead the moment James thrust the pigskin over the goal line. This is a reasonable reaction. 

Reasonable, but wrong. Breaking the plane of the goal line with the ball means you score a TD and the play is over only if you had legal possession of the ball at the time you broke the plane. Otherwise, it’s meaningless. So in James’ case, it’s actually a very easy application of the NFL rule: he bobbled the ball and lost it upon impact with the ground, so he did not complete the catch, so he never had legal possession, so his crossing the plane with the ball was irrelevant. Like the horseman Post in the famous fox hunt case, merely establishing some early sign of control does not mean squat if you don’t fulfill all the applicable criteria for legal ownership.

And the analogy to Pierson v. Post helps for another reason. In that case, it was pretty hard to argue that Post had, by merely chasing the fox, come even close to the kind of manucaption (physical deprivation of liberty) that centuries of courts and commentators agreed was necessary to reduce a wild animal to private ownership. But there was a dissenter: Livingstone, J., argued that whatever outcome the law actually dictated said, everyone knew that was bullshit.

No, seriously: Livingstone made a half-hearted argument to contest the majority’s mountain of actual legal authority with some citations of his own, but the real driver of his opinion seemed to be that Post should win because, well, “every votary of Diana” (i.e., anyone who knows squat about hunting) knew Pierson was being major uncool by interfering with an ongoing fox hunt and should lose. 

This is, as I tell my students when I teach it, one of the easiest to make and least convincing claims in the entire firmament of argument: the ol’ “it’s just common sense” assertion. And in the case of the Steeler Jesse James, “common sense” is the thin reed on which countless commentators have staked their claim that the NFL got it wrong. Consider this inanity from Mark Maske of the Chicago Tribune:

“One day, the NFL will have a common-sense approach to what's a catch and what isn't. If it looks like a catch, it will be a catch. If it doesn't look like a catch, it won't be a catch.”

Ohhh, now I see. If only the NFL used the ol’ common-sense rule then everything would be clear. The rule would be “if it looks like a catch, it’s a catch.” Sounds like someone is channeling the ghost of Potter Stewart, the Supreme Court Justice who famously defined pornography by saying “I know it when I see it.” 

The problem with ‘common sense’ as a standard is that while it’s a great-sounding way to make believe that our gut instincts are the only guide we need to make sense of disputes in the world, in reality it’s like Santa Claus who (sorry kids) does not exist. What’s common sense to you may not be common sense to me may not be common sense to that guy, and so on. 

What ‘common sense’ really means is ‘I feel a certain way.’ And ‘my feelings say so’ is a terrible standard for resolving hard questions, because it provides no objective metric for resolution and expands rather than limits ground for disagreement. Not to mention that “common sense” has been trotted out as a defense for some of the worst, most indefensible laws and policies in American history—segregation, slavery, limiting the vote to the wealthy and propertied, etc. It’s an argument you make when you don’t really have an argument to make.

Which is why, at the end of the day, the NFL catch rule is a good, or at least good-enough, one. It sets a clear standard that refs can use to say some catches count and others don’t. It has a nice bright-line structure—yes, the much-maligned standard that a catch must “survive the ground”. And it avoids some arbitrary alternative standard like insisting that a receiver must control the ball for X number of seconds, or an incoherent alternative standard like the bizarre notion of a “football move.” 

The catch rule is not perfect, of course. At times it may produce results that do not quite match up with our feelings that a catch was a catch, but then again that’s the whole point. If we moved to a “common sense” rule that prioritized our feelings above an objective standard, we wouldn’t have a rule at all, but just the conflicting intuitions of refs, players, officials, and fans. So just like in Pierson v. Post, you may not like the outcome in this case, but the rule serves purposes that easily justify putting up with occasional anomalous applications. 

As Walter Sobchak admonished Smokey in The Big Lebowski, “This is not ‘Nam—there are rules.” Rules save us from the undifferentiated chaos that we’d face if we had to resolve a hundred different feelings about what “common sense” means. And whether we’re talking about possession of a feral fox or a flying football, the marginal costs of rules are well worth the advantages they bring in terms of stability and predictability. Also, go Pats.

http://lawprofessors.typepad.com/property/2017/12/fagundes-the-nfl-got-it-right-for-once.html

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