Let’s not confound the time with conference harsh:
There’s not a minute of our lives should stretch
Without some pleasure now. What sport tonight?
— Mark Antony, Antony and Cleopatra I.1
What do we mean when we say a referee’s decision is “harsh”? 
In talk about soccer it’s a term of art, having shades of meaning it lacks in other contexts. Consider the red card Australia’s Harry Kewell got in Saturday’s match against Ghana. On ESPN’s halftime show, Ruud Gullit and Roberto Martinez debated it. “It is a red card,” Gullit said, “he stopped it with his hand.” (Not true, actually: it was his upper arm, which was nearly pinned to his side. But I digress.) Martinez didn’t simply disagree with Gullit, but said that he thought the red card was “harsh.”
But wait—isn’t that a disagreement? In discussions of soccer refereeing, not exactly. Do a Google search on the phrase “penalty was harsh” and you’ll begin to get a sense of what I mean. For one thing, you’ll see how closely associated the phrase is with soccer: it’s used in other contexts but rarely. You’ll see that it is usually found in a British context, though that may be because there is so much more writing about soccer over there. You’ll see that it is almost always used to describe a penalty or a red or yellow card, almost never for a mere foul or a non-call.
And if you go through the examples Google provides more closely, you’ll notice that when people claim that a referee’s decision was “harsh” they’re rarely saying that it was simply and straightforwardly wrong. When that’s what they think they express themselves rather more boldly: not “harsh” but “shite” or “bollocks.” (I didn’t hear anyone say that Kaká’s sending-off yesterday was harsh, but rather that it was “ridiculous,” “absurd,” and—Dunga’s phrase—”totally unjustified.”) No: “harsh” is a term exceedingly subtle in its application. It means something like this: Under a certain and extremely strict interpretation of the laws of soccer this verdict can, I suppose, be justified, but a referee who took into account the full circumstances of the moment would have swallowed his whistle and let the game play on, or at the most would have imposed a lesser sanction. And that’s why I say that Martinez wasn’t simply disagreeing with Gullit.
In the fifth book of the Nicomachean Ethics, Aristotle introduces the important concept of equity (epiekeia). Anyone who makes legal judgments needs the virtue of equity, Aristotle says, because laws are by their very nature general: “the law takes account of the majority of cases, though not unaware that in this way errors are made.” It is because in a minority of cases errors are made that equity must be invoked as “a rectification of law in so far as law is defective on account of its generality.” Sometimes, and precisely because laws are necessarily general, following the strictest letter of the law results in injustice. Therefore judges are necessary, in order to identify situations in which injustice is arising, and those judges, including soccer referees, need to possess the virtue of equity.
Curiously, soccer is the only sport I know of that has built something like a principle of equity into the rules, through the concept of playing the advantage: referees are actively encouraged to evaluate situations in which a strict following of the rules—say, calling a foul on a player who has certainly fouled, but at a time when the whistle would interfere with a scoring opportunity for the other team—would produce injustice. Giving a just decision is given priority over giving a legally precise one. But this particular rule is unusual if not unique.
And what do we say about a player who is the recipient of a harsh decision? We say he is unlucky—and we mean that in two senses. We mean that through no fault of his own he found himself in violation of the letter of the law (or, in a softer sense, that he may have been at some fault but not sufficient to earn the judgment that he in fact received). And we mean that he was unlucky in being at the mercy of a referee who was deficient in the virtue of equity.
The nuances here are wonderful, and are among the many reasons I love soccer. But all that said, the red card for Kewell was total bollocks.
Read More: Refereeing, World Cup
by Alan Jacobs · June 21, 2010
Fantastic
At the end of the day, Kewell kept a ball out of the net with his arm. If it was “nearly” pinned to his side, he nearly avoided a deserved red card.
There are shades of N.T. Wright’s view on justification here. Could it be that the New Perspective on Paul has been secretly informed by English opinions on good football refereeing?
@Rob Brazier I’m sorting out philosophy and soccer, but Biblical exegesis and soccer . . . that’s beyond my capacities.
Great stuff. I’d add that rugby also has an advantage rule, as well. I’d be curious to know more about the origins of the rule in the various forms of football.
Just by way of illustration, Robbie Mustoe just offered up the quintessential use of “harsh” on ESPN: “It seems a little harsh. By the letter of the law, I suppose it was a yellow card, but so many players get away with it.”
Awesome post, Mr. Jacobs. I’m not going to lie; I had to look up “equity” in the dictionary to get the precise meaning of what you are saying, although I should point out that the context made it more or less clear what you meant by the term. I just wanted to make sure, I guess.
The option to decline penalties in North American football (what do we call that around here, anyway?) is a form of the advantage rule in that the official notes the infraction and allows the injured team to decided whether they’d rather accept the pre-determined award for the penalty of the yards gained (or lost) on the play. In all cases the rules intend to prevent calculated fouls in sports with relatively few scoring chances.
Ice hockey has a similar concept to “playing the advantage”, where play is not stopped until the team that has committed a penalty-worthy offense regains the puck. In other words, a fouled team can continue to play and try and score a goal (and will often temporarily remove the goalie to bring on an extra attacker), but will be rewarded with a power play as soon as they lose the puck.
In the Ethics, equity is applied on an absolute scale- there is a just and true good to which you can prescribe. In post modern football, there is no absolute good beyond the win. So teams do underhanded things in order to attain that only good, because the ends justify the means- there is no virtue in football but the win. The theory of negative football is a postmodern representation of the idea that there is no justice or good outside the win- the rules are basically nonsense or a distraction, and the intent behind them is meaningless. The Italian team has codified this attitude, and call it cunning and guile.
People, whether they understand it or not, are by their nature attracted to the good and the pure- so there is a misunderstood dissatisfaction with negativity when they witness it (and an inability to articulate it- thank you, Mr. Barth). Most people would like to believe in the existence of a “pure form” of football, a truth if you will, above and beyond the win. Given the terms of postmodern debate, however, there is danger in attempting to posit any sort of absolute truth. It’s far easier to critique a position than to establish one, and the critique allows the critic to avoid establishing their own position. So we argue semantics and half positions because it’s difficult to fortify arguments beyond reasonable doubt. However, if you cleave to truth, i.e: Chile play a better form of football because they play to win instead of not to lose, refuse to dilute your argument with relativity, i.e. Italy are rubbish because they are so cynical, and establish a fundamental, articulate bedrock upon which to base your argument, i.e- there is a right way to play the game and the philosophy behind it, you are now establishing an articulate position for the existence of equity.
A final question- do you wonder why the nation of Brasil is so unsettled with their team? Is it because they play against the “truth of Futbol”- some bedrock above and beyond the end that controls the means to it?
@Joe H. Not to go all David Hume in here, and I’m not sure this has much to do with the post — but is the argument really about transcendent purity most of the time? Can’t it just be that, empirically, most people find what we call “good football” entertaining and “bad football” boring? Couldn’t the Brazilian discontent suggest that pleasure is a more important good than winning?
“Giving a just decision is given priority over giving a legally precise one.”
Why is the justice of “playing the advantage” somehow legally imprecise? It may well be an illustration of official discretion. Or perhaps it suggests something about the malleability of soccer’s system of rules. And maybe it introduces a dose of unpredictability into the playing of the game.
But the justice of “playing the advantage” doesn’t seem incompatible with legal precision. Not at all. It seems instead to suggest that legal precision is, in the beautiful game, something richer and more fluid than a set of unbending rules.
Your thoughts?
A suggestion for Mr. Jacobs next Aristotelian football analysis–Swindling Rhetoric and the Appeal to Pathos: On Pretending to Be Struck in the Face to Draw Red
@Sparkle Motion! “Playing thre advantage” is not legally precise because what counts as an “advantage” is never specified anywhere in the rule book. (I just checked to be sure.) It’s a complete judgment call on the part of the referee. Whereas what constitutes a foul is always defined as specifically as possible, though of course, per Aristotle, no rule or law can ever be defined with sufficient specificity to make judges and interpreters unnecessary.
And thanks to those commenters who pointed out analogies in other sports.
@Anthony King I’ll get to work on that right away, and with pleasure.
Isn’t the other time “harsh” gets used when a British reporter wants to suggest that a decision was a bad call without coming right out and saying so (because of libel laws, perhaps)?
@Alan Jacobs And I might add — replying to myself — and becoming even more pretentious than I have been already, if that’s possible — that one of the abiding dreams of late modernity is to produce a system of law so perfect that it accounts for every contingency in advance, thus eliminating all “subjective” judgment, that is to say, all judgment of any kind. This is why OSHA regulations, the laws of the EU, syllabi for university courses, and FIFA’s Laws of the Game are under constant pressure to get bigger and more comprehensive — under the belief that some point can be reached (call it the Singularity of Law) at which the perfect and indubitable answer to any and every question can simply be looked up and applied.
@Alan Jacobs Thanks for your thoughtful reply, Alan. I think I might still quibble with some of your details — like, say, the notion that we can divine precision by reference only to a set of formal rules — but that’s hardly interesting.
What’s more interesting is the role of a standard amid a set of rigid rules. Legal scholars have spent decades debating the relative merits (vel non) of rules and standards. The two are often set in counterpoint—the benefits of the one framing the deficits of the other. (Rules are clear and predictable, for example; standards are less certain and clean.) But you identify “playing the advantage” as a kind of rule-trumping standard—a nod to equity within a closed system of law. It’s a nice point, and it’s one that the old jurists of equity would cheer from beneath their powdered wigs.
Is that wrong?
@Brian Phillips
Introducing an idea of equity always calls to transcendant purity or justice, no? Sort of a Kantian moral imperative for truth and beauty?
My Hume is really rusty (last read “treatise” ten years ago), but his central thesis in Book three was to divorce “is” from “ought” in a similar fashion to Descartes, not through reason (which by itself is flawed) but because of emotion preceding thought. We feel before we reason, and reason conforms to feeling. So it’s reasonable to believe, in that construction, that, yeah, it’s just a matter of pleasure in good football- those particular actions on the pitch fire those particular neurons, and you feel pleasure.
However, I don’t think that you can have “is” without an “ought.” Work of neo-Aristotelians such as MacIntyre, Plantiga (not so much) and Dr. Jacobs (if it is the same Dr. Alan Jacobs) have shown that, in the face of the dead end that is Post-modern philosophy (and the Descartes and Hume that birthed modernity, and by extension it’s critique), divorcing them is impossible. You can’t posit the idea of an “is” without thinking of what it “ought” to be. Every facet of experience is seeing a piece of the truth- thus the idea of justice and the laws of the game. The laws of the game are an attempt to align with some truth, and the actions of the referees are interpretations to achieve some form of “truthful/just” football. The referees, being human, are lenses altering the rules of the game, fallen and incomplete as they are, to be more perfect, to align with some invisible, perfect game. The advantage rule is recognition of the failing of the rules, the idea of “unlucky or harsh” the recognition of the failing of the referee- we know an “ought,” but we recognize that the “is” might just be incapable of producing it.
This brings us to the Brasilians. Articulated or not, there is a sense of how things “ought” to be, and the “is” just doesn’t fit it right now. Winning might not be how you get to the “ought” of football.
@Anthony King Let’s ask Alvin Plantiga to deal with that one
@Sparkle Motion! I do tend to think that “precision” in judgment is a concept that only makes sense in relation to some fixed reference point, in soccer that point being the laws of the game. But I just may be failing to imagine the other possibilities.
More important, I just witnessed an astonishing few seconds of skill from David Villa.
@Alan Jacobs I think that there’s a reason the FIFA rulebook reads like a catechism to football
@Alan Jacobs True, but the laws of the game include the very “playing the advantage” standard you discuss. And the common law evolved for years by reference largely to itself—and no one would accuse it of being fundamentally imprecise. (In parts, yes; in others, no.) So I’m left, I guess, where I began: with an uneasy sense that justice and legal precision do much more and less than you suggest. But thanks for a great conversation all the same.
Who’s your team, by the way?
@Joe H. Introducing an idea of equity always calls to transcendant purity or justice, no? I think in Aristotle it’s the opposite: you need equity because the system of law is intrinsically flawed and limited. “The equitable is just, and better than one kind of justice — not better than absolute justice but better than the error that arises from the absoluteness” of the formal legal code (Nico. Ethics, book 5).
I think this is immenselyrelevant to referees’ judgments in soccer, since often a perfect judgment cannot be derived from a messy situation. Should Harry Kewell have been penalized for moving his torso an inch or two during the less-than-a-second in which a ball was drilled right at him? Maybe; but the punishment that he received — banishment from the one and three-quarters games and the end of his World Cup, with significant damage to his team’s chances of success — is wildly disproportionate to the offense and therefore, I would say, unjust. Equity in judgment can’t produce a perfect resolution to this problem, but can mitigate “the error that arises from the absoluteness” of law.
@Sparkle Motion! I’m for the U.S. until they’re out and then England until they’re out and then the Netherlands until they’re out and then I don’t care.
@Sparkle Motion! And thanks for the helpfully smart replies!
@Alan Jacobs My pleasure!
It’s been a great conversation. I’ll look forward to the next too! (Perhaps, someday, Brian will ask *me* to write something . . . though the quality index of the site will plummet.)
Until then, go Oranje! And I wonder how today’s broadcast fared in North Korea . . . .
@Alan Jacobs I should have phrased the opening better. I don’t think that a definition of equity asserts that the law is just, but it does posit that the concept of justice exists. The existence of a judge or referee is an acknowledgment that the law is not necessarily justice, but, as you have so ably demonstrated, is better than the lack of law. I do believe that the pursuit of equity is a pursuit of a platonic, impossible form.
How can anyone who understands the rules of the game and the principle of equity call Kewell’s sending off “bollocks”? The charge was a handball on the goal line which prevented a certain goal. The referee has no choice but to a send a player off in such a situation.
Now we can debate whether it was actually a handball or not but we cannot debate the sending off once we accept that it was a handball.
@dollymix aka, the delayed penalty. Great rule.
@A. I’m just kidding about it being “bollocks,” of course, But I think it was perhaps a little, um, harsh because I don’t think Kewell handled the ball deliberately, and the rule says it has to be deliberate. (This, I think, was the justification for the non-call on Torsten Frings against the U.S. in the 2002 Cup, which really was bollocks, since he stood in exactly the same place Kewell stood and stuck his bloody hand out.)
And then you can have a debate, not about the ref’s call, but about whether the rule as it is now written is a good one or whether it should be changed. A wholly separate question, of course.
@Alan Jacobs
Well I don’t agree that it can be harsh either. The decision, that it was handball by Kewell, was either right or wrong. If he didn’t deliberately handle the ball, the decision is plain wrong the penalty should not have been awarded, let alone a red card.
The IFAB has reportedly been considering a change to the law concerning the “triple penalty” that’s assessed in Kewell’s situation (a penalty, a sending-off, and a suspension, all for one questionably voluntary action). So as Alan said, the law may be harsh, whatever you think of the enforcement of it.
For me, the problem with handball rules generally is that they require referees to judge intention as well as action. That’s never easy to do, especially at game speed, and raises a whole host of complications. The vagueness of the intention rule could be a way for referees to exercise discretion, but FIFA mucks it up with all sorts of guidelines for inferring intention from action (i.e., if a free kick is taken from 3 meters away, movement toward the ball might be accidental, but if it’s taken from 10 meters away, movement toward the ball must be on purpose) that sort of half-circumvent the requirement while keeping it technically in place. Whatever you think of Kewell call, it’s a mess.
“Curiously, soccer is the only sport I know of that has built something like a principle of equity into the rules, through the concept of playing the advantage: referees are actively encouraged to evaluate situations in which a strict following of the rules—say, calling a foul on a player who has certainly fouled, but at a time when the whistle would interfere with a scoring opportunity for the other team—would produce injustice.”
I suppose you’ve never watched a hockey game, as this also applies on the ice. A foul will not be called against a player while the opponent’s team in in possession of the puck. The foul will not be called until the next time the fouling team touches the puck.
@Dan It’s true, I have never seen a hockey game and I never will! But the reason I didn’t mention that rule is that, as I understand it, the hockey official doesn’t have any discretion in the matter — he has to wait until possession changes. But the soccer referee decides whether there’s an advantage to be played, which is where equitable judgment comes in. I’m happy to be corrected if that’s wrong.
@Brian Phillips Maradona last night: “The players know what their duty is: to make people happy.”
Somehow, even allowing for his difficulties communicating in English, I can’t see Fabio Capello putting it quite like that, can you?
@Brian Phillips Now that offside has finally been desubjectified (goodbye and good riddance, “interfering with play”), handball is indeed the One True Mess that remains in the laws of the game. Everyone seems to agree that it urgently needs sorting out, but how? Balls will always ricochet off players’ upper arms while some players will always try to gain an advantage by handling (or, more often, nudging or elbowing) the ball. How can the former be condoned while the latter is penalised, if it isn’t by means of a subjective call? I fear – because I’m no fan of the idea at all – that the only way will be to give the fourth official a TV. But although that would work in goal-related cases, such as Luis Fabiano’s against Ivory Coast or Thierry Henry’s assist against Ireland, in most instances it just wouldn’t be feasible. Usually, when handball isn’t given, the decision isn’t immediately followed by a goal or the ball otherwise going out of play, so referees signal their denial of any handball appeals simply by waving play on. In such cases, if video reviews were implemented, would play then be stopped thirty seconds later, when the ball was perhaps at the other end of the pitch, because a little voice had just said “Actually, he didn’t chest it down” in the referee’s ear?
@MaisieDribble
Well a Europa League-style third assistant referee would have been perfectly placed to have seen the Luis Fabiano incident.
Most handballs are obvious. In most of the cases where there’s some doubt the answer is no. And then there are ones that are simply not seen by officials.