They’re coming home

13 July, 2018
by: Cripps Pemberton Greenish

Gareth Southgate’s England squad went into the World Cup with expectations at an all time low.  So what national joy there has been to have made it as far as the semi final.

Another first at this World Cup is the use of VAR, the video referee.  In certain circumstances, the decision by the on-field referee may be reviewed by the video referee.  The video referee has the advantage of multiple camera angles, slow motion and other technology.  The result should be that there are no bad decisions and controversy should be a thing of the past.  Well, it has not quite worked out like that.

Football is rules based.  Unlike our legal system, it is entirely codified; and much less complex.  The rules tell you what you may or may not do and what the consequences are if you break the rules.  It should be simple.  In football you guide the ball with your feet or head, not with your hands (unless you are the goalkeeper).  So Rule 12 says about handling the ball:

“Handling the ball involves a deliberate act of a player making contact with the ball with the hand or arm.”

Immediately you can see how difficult it is to apply the rules to the facts.  The referee may feel that a player did not ‘deliberately’ handle, he was close to the ball when it was played or he did not move his hand towards the ball.  The video referee may come to a different conclusion.  What is a clear and unambiguous ‘rule’ may be capable of different interpretations when applied to the facts.

Our legal system is similarly comprised of ‘rules’.  The equivalent of the video referee is the judge’s decision may in turn be reviewed by a higher court.  Convention has it that judges do not ‘make’ the law, they ‘find’ it.  The exercise of the judicial process results in a deduction made from the pre-existing rules.  This may be so in the most straight forward of cases but generally it is unrealistic to suppose that statutes or case law, the source of the ‘rules’, are capable of only one interpretation or meaning.  It is at these ‘debatable edges’ that the courts operate.

In seeking legal advice, people want to know what the law is and how it applies to their particular circumstances.  For the legal adviser the question can often only be answered by means of a prediction of what the court may decide.

So we know what the ‘rules’ of handball in football are, we know what the ‘rules’ relating to a particular legal issue are.  In each case we may be able to predict with some accuracy how those rules will be applied by the referee or the video referee, the judge or the Court of Appeal.  But predictions are not the same as certainties – as the manager of the Germany team will testify.