Thinking About Soccer and Ultimate Frisbee Like a Lawyer

-- By Alex Asen - 17 April 2010

Hi Alex. I apologize for not getting this done sooner, but my computer died last week and I spent most of the weekend dealing with that. I enjoyed reading this and, in particular, learning a little about Ultimate, about which I knew almost nothing (and you do an excellent job of explaining it). Please keep that lack of knowledge in mind when you look over my comments - it may be that I've misunderstood some element(s) of the game when thinking about the essay.

Intro

Two legal lessons can be learned from comparing soccer to ultimate Frisbee. One is a greater awareness of the different ways to approach disputes. The second is the benefit of writing rules with objective criteria.

My major critique of the essay is that I don't think it lives up to this first paragraph. The paragraph promises lessons, but the essay doesn't deliver. The actual essay is more in line with the title. However, simply examining two sports through the legal-thought lens doesn't seem to do very much. Basically, I feel like the essay needs a more clearly articulated point. Below, I've made some comments about things you might want to consider while revising. I've made some minor tweaks to the language and cut the essay down some to allow room for a conclusion.

Adversarial vs. Collaborative

Every sport recognized by the NCAA has officials (referee, judge, umpire, etc.).

Here, I wonder if the distinction you are making is less between two sports than between a sport controlled by a governing body and one that is controlled by the players. In a pick-up basketball game, for instance, the infractions are called by the players. It is the presence of the NCAA that requires a "neutral decision-maker." Did you consider discussing more deeply the effects of a large institution (the NCAA, the judicial system) on rule/lawmaking?

For the rest of the essay I will use soccer as an example of a NCAA sport. The disinterested referee in soccer has some similarity to to the judge in our adversarial legal system: both are 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 of convincing the referees that his team is abiding by the rules while the other team is breaking them. Like attorneys zealously representing their clients, good soccer players use every tool available -- argument, rhetoric and drama -- to convince the official that the other team is in the wrong.

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.)

Doesn't the law make this assumption, too? There are rules about ethics and courtroom procedure that attorneys are expected to follow.

"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.) Ultimate players are expected to work with the competing team to determine facts and apply rules. Accordingly, the ultimate judicial system is more comparable to alternative dispute resolution, like collaborative law, where the parties work together than the adversarial system where they work against each other.

Discretionary enforcement

The rules of ultimate must be 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. For example, when trying to prevent the player holding the disc from throwing, an Ultimate 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." No one else, on or off the field, can call it for her. 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 infracter because punishment is not an objective.

This is where I think making a sports/law analogy begins to break down. I'm not sure there is "moral blame" attached to most sports infractions (soccer's red card perhaps is an exception).

The rules seeks to reset the play like the infraction did not happen -- put the damaged party 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. As with any good contract, when the rules are clear and consistent the parties can set more efficient strategies.

This is an interesting analogy (as was the analogy to ADR). However, I expected it to be followed by a discussion of "soccer as contract" - perhaps similar to contracts with binding arbitration clauses. Showing how Ultimate is similar to contract and soccer is similar to criminal law makes the essay diverge, just as it should be coming together.

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.

In a second parallel to criminal justice, soccer applies escalating "disciplinary sanctions" for harm caused by the hold. (Law 12 - Fouls and Misconduct p110) A soccer infraction is treated as something to be deterred by punishment. Unlike in ultimate where infractions are considered an unavoidable part of the game and the goal is to reset the field as if the infraction had not happened, in soccer, the response to an infraction is to "penalize" the infracting player by giving the other team a free kick, a penalty kick or a man power advantage for the rest of the game. These are the only three responses available to the soccer referee. Consistent with the soccer judicial system, these responses are not refined enough to put the parties back where they would have been without the infraction, instead they are blunt punishments.

Hiding somewhere in here seems to be the assumption that soccer is somehow more poorly regulated than Ultimate or at least that Ultimate's player-reliant regulation is preferable. If that is your argument, I think you need to be explicit as to why you believe it to be true.

FINAL THOUGHTS: The more I read this essay, the more I became convinced of the difficulty of drawing analogies between sports and law. Law is "real life" and sport is not. That fact alone greats a large gap that isn't easy to bridge. I wonder if you haven't set yourself too great a task by trying to create analogies between two different sports and a number of fields of law. I would consider focusing the essay on Ultimate alone and the way in which the sport is completely (and effectively) governed by the participants. This might lead to an interesting argument about whether a large scale judicial system is actually necessary to a functioning society. I hope these comments are of some help. Please let me know if you'd like clarification on anything or if you think I've gone astray in my analysis of your goals. -- JohnSchwab - 26 Apr 2010

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