• Michael Fasciale

Challenge That! Adopting De Novo Standard of Review For Replays

Image via Sportsnet

We’ve all seen it happen. A “no-touchdown” call gets reversed after the video footage showed the football barely crossing the invisible plane that separates the first yard line from the endzone. A safe-at-first call gets overturned after the high-definition camera captured the opposing runner’s cleat barely beating the baseball to first base. A “good-goal” call gets reversed after the film revealed the left-winger interfering with the goaltender before the puck entered the net. And a common foul gets elevated to a flagrant foul after the tape showed the center engaging in excessive contact against the opposing team’s point-guard.

Many sports fans, if not most, want the same thing—the call ultimately made to be the one most likely to be correct. The specific standard of review employed for re-watching the video footage, therefore, has far-reaching ramifications. To promote justice throughout professional sports, the National Football League (NFL),[1] National Hockey League (NHL),[2] National Basketball Association (NBA),[3] and Major League Baseball (MLB)[4]—the four major professional sports leagues in the United States (i.e., the Big Four Leagues)—should employ a de novo standard of review for instant replay review.

A de novo standard of review requires an appellate court to review a matter anew, as if no court had heard or decided on the matter before. The Big Four Leagues should use a de novo review for instant replay challenges because instant replay officials have access to superior information as compared to on-field referees (e.g., slow-motion replay, multiple camera angles, and the ability to re-watch a play numerous times). Accordingly, under a de novo standard, the instant replay officials (i.e., the “appellate court”) will not give deference to the on-field referees’ conclusions (i.e., the “lower court”) and will decide what the most likely call is only by consulting the video footage. Implementing such a standard will (1) promote accuracy and justice in sports; (2) benefit the league, the players, the referees, and the fans; and (3) ensure that the ultimate call was the one most likely to be correct.

Some argue that using heightened replay review standards “maintain . . . the human element of sports” and “discourage coaches from frequently and frivolously challenging calls.”[5] Under the NFL’s clear and obvious visual standard, for example, a “pass interference ruling . . . will be changed in replay only when there is clear and obvious visual evidence that the on-field ruling was incorrect.”[6] The MLB’s clear and convincing evidence standard requires instant replay officials to decide “whether to change the call on the field, confirm the call on the field[,] or let [the stand] call on the field due to the lack of clear and convincing evidence.”[7] NHL instant replay refs can overturn on-ice calls if there is a “clear view . . . of the opposite or different circumstances.”[8] And for a call to be overturned in the NBA, “there [must be] ‘clear and conclusive’ visual evidence for doing so.”[9]

But using heightened replay review standards for instant replay review in professional sports is unreasonable because it subverts accuracy, creates controversy, and invites imperfection throughout the game.[10] For example, on April 11, 2021, the Philadelphia Phillies played the Atlanta Braves on ESPN’s Sunday Night Baseball. In the top of the ninth inning, while the score was 6-6, infielder Alec Bohm attempted to score off of a pop fly to left field. The home-plate umpire, in real-time, called Bohm safe after he appeared to slide under the catcher’s tag. Bohm’s spike, in fact, missed the home-plate. The Braves challenged the call. Using the MLB’s current standard, the instant replay officials let the on-field call stand due to the lack of clear and convincing evidence that Bohn missed the home-plate.[11] The Phillies, with the help of the blown call, ended up winning the game 7-6.

In using a de novo standard of review for instant replay review, the on-field call in the Phillies-Braves game would likely have been reversed because the replay review umpires would not have given deference to the on-field umpires’ conclusions. That is, the replay review umpires should have decided whether Bohm was safe only by re-watching the play in slow-motion and analyzing it through multiple camera angles; the home-plate umpire’s “safe” call should have been immaterial. If the MLB studied this play through a de novo lens, this call likely would have been overturned. Doing so would have promoted accuracy and justice by ensuring that the ultimate call made was the one most likely to be correct.

Michael Fasciale is a third-year law student at Seton Hall University School of Law in Newark, New Jersey. He serves as the President of the Seton Hall Entertainment & Sports Law Society, and as an Articles Editor on the Seton Hall Law Review. He can be reached on LinkedIn @Michael-Fasciale or on Twitter @MFasciale_.

[1] The NFL first implemented its replay review system in 1986. See Ty Schalter, Has the NFL’s Instant Replay Run Its Course?, FiveThirtyEight (Jan. 30, 2020), https://fivethirtyeight.com/features/has-the-nfls-instant-replay-run-its-course/#:~:text=When%20the%20league%20first%20implemented,replays%20led%20to%20a%20reversal. [2] The NHL first implemented its replay review system in 1991. See Dana Fjermestad, The Historian: Replaying History, NHL (Oct. 28, 2010), https://www.nhl.com/islanders/news/the-historian-replaying-history/c-541889. [3] The NBA first implemented its replay review system in 2001. See Scott Allen, Upon Further Reiew: A Brief History of Instant Replay, Mental Floss (Oct. 13, 2010), https://www.mentalfloss.com/article/26075/upon-further-review-brief-history-instant-replay. [4] The MLB first implemented its replay review system in 2008. See id. [5] Steve P. Calandrillo and Joseph Davison, Standards of Review in Law and Sports: How Instant Replay’s Asymmetric Burdens Subvert Accuracy and Justice, 8 Harv. J. Sports & Ent. L. 1, 25, 36 (2017). [6]Competition Committee Finalizes Replay Rule for 2019 Season, NFL Football Operations (Jun. 20, 2019), https://operations.nfl.com/updates/football-ops/competition-committee-finalizes-replay-rule-for-2019-season/ (emphasis added). [7]Replay Review, MLB, available at https://www.mlb.com/glossary/rules/replay-review (emphasis added). [8] Helene Elliot, Upon Further Review NHL’s Replay System is Good, Los Angeles Times (Dec. 19, 2011), https://www.latimes.com/sports/la-xpm-2011-dec-19-la-sp-elliott-nhl-20111220-story.html (emphasis added). [9]Referees in NBA Replay Center to Determine Certain Replay Outcomes for 2015-2016 Season (Sep. 30, 2015), https://official.nba.com/nba-replay-center-2015-16-season-changes/ (emphasis added). [10] See id., (arguing that sports should borrow standards of review from the world of law). [11] See Jomboy Media, MLB Gets Replay Review Wrong in Phillies vs Braves Game, A Breakdown, YouTube (Apr. 12, 2021), https://www.youtube.com/watch?v=w0ellSNbZ-4 (for a detailed video breakdown of the play).