Standards of Review in Law and Sports: How Instant Replay's Asymmetric Burdens Subvert Accuracy and Justice
Harvard Journal of Sports & Entertainment Law, Vol. 8, Pp. 1-38, 2017
39 Pages Posted: 3 Apr 2016 Last revised: 4 Sep 2019
Date Written: March 23, 2016
A fundamental tension exists in both law and sports: on one hand, adjudicators must “get the decision right” in order to provide fairness to the parties involved, but on the other, they must issue speedy and certain rulings to avoid delaying justice. The certainty principle dictates that courts follow stare decisis in the law even if they believe that an earlier decision was wrong. However, it is often the case that there is a need to reverse earlier decisions or the law itself in order to make the correct call on appeal. Both law and sports are constantly balancing the goals of accuracy, fairness, certainty, and speed by providing for different standards of proof for initial rulings versus appellate review, as well as different burdens in civil versus criminal cases. While asymmetrical burdens in law might be desirable (e.g., to protect the rights of the innocent or to reflect the fact that juries are in a better position to judge credibility than appellate judges), they do not carry the same intuitive appeal in sports. The commonly used “indisputable evidence” standard utilized in professional sports leagues for reviewing and reversing referee decisions only leads to unnecessary inaccuracy and unfairness. It requires an enormously high threshold to be met before an official’s decision on the field can be corrected, whereas absolutely no evidence at all is required to allow that same call to “stand.” Sports would be well-served to borrow the lessons of law in order to further the fundamental goal of fairness without compromising certainty or speed, abandoning the asymmetrical “indisputable proof” burden in favor of a “de novo” standard of review.
Keywords: burdens of proof, presumptions, standards of review, clearly erroneous, de novo, abuse of discretion, professional football, NFL, major league baseball, MLB, professional basketball, NBA, professional hockey, NHL, instant replay review
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