An Open Letter to the NFL: 'Let the Play Continue' and Change the Standard of Review

Abstract

The NFL rules have been the subject of much controversy over the past few years. To improve clarity and fairness, the NFL should make two additional rule changes to the current instant replay review process. First, the NFL should adopt an official policy that referees are encouraged to "let the play continue" on all ambiguous plays where there is the potential to cutoff further developments. Second, any time the referees do allow the play to continue, the standard of review on replay needs to change. Currently, referees can only reverse the ruling on the field when there is "clear and obvious error," the same standard of review that appellate courts use when reviewing factual issues. As a general rule, the "clear and obvious" standard is appropriate and should continue to be used. But not in the "let-the-play-continue" scenarios. In these situations, the referees are often not ruling what they believe to be correct to make sure that they do not stop a legitimate development (e.g., fumble return for touchdown). Stated differently, when referees allow the play to continue they are not making any ruling on the field, but instead allowing the play to continue to its natural end so they can "get it right" on review. In these situations, the NFL should change the standard of review to "de novo," the standard of review that appellate courts use when reviewing legal issues.

Keywords: National Football League, NFL, Instant Replay Review, Standard of Review, Appeals, Let the Play Continue, De Novo, Clear and Obvious