Understanding soccer and ultimate Frisbee will make me a better lawyer

-- By Alex Asen - 17 April 2010

Intro

Two lessons can be learned from comparing soccer to ultimate Frisbee (to avoid trade mark infringement just “ultimate”). One is a greater awareness of the different way to approach disputes. The second is the benefit of writing rules with objective criteria

Adversarial vs. Collaborative

Every sport recognized by the NCAA has officials (referee, judge, umpire, etc.). For the rest of the essay I will use soccer as an example. The disinterested referee in soccer has parallels to the judges in our adversarial legal system; they are both responsible for determining facts and for applying rules to the facts. Ultimate is different; the players on the field are responsible for officiating themselves.

In soccer, a player has the responsibility to convince the referees that his team is abiding by the rules while the other team is breaking them. Analogous to an attorney zealously representing his client, good soccer players use every tool available – argument, rhetoric and drama -- to convince the official that the other team is in the wrong. Moreover, part of the game of soccer is determining how strictly the referee will enforce the rules and taking advantage of any transgression he will allow.

Ultimate, on the other hand, begins with “the assumption that players will not intentionally violate the rules, [and that] players are similarly expected to make every effort to avoid violating them.” (XIX. G.) “If an infraction is committed and not called, the player committing the infraction should inform the infracted player or team of the infraction.” (XIX. A.) Thus, ultimate does not share the same adversarial system as soccer. Ultimate players are expected to work with the competing team to determine facts and apply rules. Accordingly, ultimate rules are more comparable to alternative dispute resolution, like collaborative law, where the parties work together than the adversarial system where the work against each other.

Whether in a sports context or a legal context, understanding the proper role to play in a given culture is preeminently important. Soccer and ultimate require different social skills. The sharp contrast in the roles required by these two sports forces me to consider how to develop and apply these skills.

Discretionary enforcement

The rules of ultimate are based on clear, objective criteria because it is a player’s prerogative to call every infraction that she is affected by. If the rules were vague, the game would be interrupted by endless infraction calls. An illustrative example of an ultimate rule is, when trying to prevent the player holding the disc from throwing, the defender must stay “one disc diameter away from the torso or pivot of the thrower.” (XIV. B. 3.) A rule like this is easy to enforce because to show whether the defender is giving enough space, all the thrower has to do is hold disk between herself and the defender. Assuming everyone knows the rule, there is little to dispute.

It is the offensive throwers responsibility to call “disk space.” She must call it at the time of the infraction; otherwise she waives her right to call it. No one else, on or off the field, can call it for her. Thus, infractions that go uncorrected are the fault of the player who was affected not the player who committed the infraction. Every player is empowered to defend her rights and is not reliant on someone else to defend them for her – indeed, there is no one else who could defend them for her. There is no need to assign moral blame to the other because punishment is not an objective. The damaged party seeks to put herself in the position she would have been in had the infraction not been committed. Thus, ultimate can be compared to contract law.

Indeed, ultimate rules may be thought of as a model of effective contract writing. The expectations placed on ultimate players are clear and interpretation and enforcement of the contract does not have to be conducted by a third party. Moreover, since the rules are clear and consistent the parties can set efficient game strategies.

On the other hand, soccer’s rules cannot be applied without subjective determinations enforced at the discretion of the referee. The rulebook sets out a type of foul: “Holding an opponent includes the act of preventing him from moving past or around using the hands, the arms or the body. Referees are reminded to make an early intervention and to deal firmly with holding offences…”(Law 12 – Fouls and Misconduct p110) The second sentence implies that the referee has discretion on when to call holding. In this way soccer is like the criminal justice system. Everyone is committing infractions all the time, but because the official has limited enforcement resource, he chooses to focus on certain types of infraction and only penalize the worst offenders.