By Daniel Roßbach
Declaring refereeing decisions to be unalterable matters of fact is one of the more absolutist institutions in football. The doctrine consists in not allowing revisions of those decisions, and thereby prolongs the already theoretically immensely powerful position of referees, who unite in themselves the investigative, accusatory, defending and judging organs of the games judicial body.
The impulse to allow an appeals court is motivated by the fact that any refereeing performance, however diligent, will be flawed in more minor or major ways. It should be clear that such proposals are not hostile to referees - for their complex decisions, made in split-seconds, to be set in stone is not strengthening their position, but lending unnecessary additional weight to mistakes no-one is culpable for. (Which presumably is the reason the other officially infallible institution we know, the pope speaking ex cathedra, is exercising this power extremely rarely.)
To think productively about the appropriate status to assign to matter-of-factly decisions we first need to get clear on what are the facts in question. There is in fact a threefold distinction of facts that should be considered independently. First, there are the actions of the players. They produce facts, but what these facts are is often far from obvious or unambiguous, especially not immediately: the players' movements contain a multitude of possible states of affairs. The task of the man or woman or whatever in black or green or fluorescent yellow is to decide between those possibilities. The picture that is generated thereby is a fact as well, but of a different kind. It obviously influences the further course of play, but it is also the grounding of a third set of facts: that of what comes of the game in evaluating the former two. In summary: a player will swing his boot to push a ball over a particular line; the referee will declare that there was a goal, and the institutions surrounding the game will recognise it in results columns and award points accordingly.
What is important and interesting for our purposes is that the third set of facts is not fully reducible to the first two: the world of football is more that all that is the case on the field of play. While goals are fully specified in the actions of players and referees, issuing a suspension or a points deduction is not, even if it is not happening in reference to anything that has happened off a pitch. Further deliberation and action is needed to bring them about.
Neither the concept nor the doctrine of 'decisions-as-matters of fact' ('Tatsachenentscheidung' in German) recognise this distinction. In our proposal we attempt to rectify this: while it is highly desirable not to destroy the nexus between the first two sets of facts, which should and must be complete and final as a game is finished, there is no good reason to self-impose their inherent limitations as we create the third, e.g. by issuing suspensions for unjustified sendings-off. Not doing so patently requires that whatever institution is making these decisions has epistemic access to the relevant facts. Especially in the lower leagues, this may often only be possible by means of the referees report, although there may well be a change in her attitude in between making and reporting a decision.
A change along these lines would not put more power in the hands of the bodies making such decisions than they have currently - it would merely open up the possibilities for their judgement. The authority of the referee, often invoked and rarely respected, would - again - not necessarily suffer from such a discursive opening. Instead, decisions being less final than at the moment may transform the relation between players and referees into a more collaborative one and decrease tensions. Or, such tensions may already arise from the heat of the moment irrespective of consequences.
One objection to this proposal could be that many situations are ambiguous, and remain so even in retrospective consideration. While that is true, it is no compelling reason not to change our practices. The perfect should not be the enemy of the good here - not being able to make indisputable decisions in every case should not keep us correcting recognisable errors where they occur. As any analysis of refereeing shows, there is much of both.
We can set up a similar defense against an other charge, namely, that retrospective punishment or pardons will not amend the injustice of dealing with wrong decisions within a game. This, too, is true, but doesn't speak to carrying over that injustice longer than is strictly necessary.
But how long is that? Because of the sequential nature of the game, i.e. because one event in a game follows the other in a temporal and a causal sense, it is impossible to actualise the possible games that haven't actually taken place. In other words: We have to recognise that something can't be the case or not while all else stays the same. Neither just flipping a bit to not count a goal afterwards, nor simulate what might have been, is possible, as such simulations are underdetermined by the information we possess.
One alteration of the way in which games are officiated is not precluded by these constraints. Rather than granting powers of retroactive punishment to a body that acts when all balls are kicked and whistles blown, we could invest the referees themselves with it. They could issue personal punishments on somewhat larger timescale than is possible now: Mark Clattenburg may not have noticed Pepe's antics as they happened, but could have become aware of them at half time, or before extra time, and rewarded them with their just punishment. More time-sovereign decision making where possible would be a timely and undogmatic improvement of referees' capacities.
What happens during a game is a matter of fact. But we can and should make use of the freedom the world affords us beyond that.
With Alex Feuerherdt.
Treating the referees decision as matters of fact is a fundamental tenant of football's regulative framework, and not just for traditions' sake, but also, because only under these circumstances referees can fulfil their role in the game. According to the rules of the game that role consists in 'enforcing the rules of the game'. In order to do so, they make decisions that are immediately effective and final as soon as play goes on. From then on, they merely are (social) facts, just as much as the dimensions of the pitch or the completed movements of the players. And just like them, there is no way of changing them retroactively.
From this portrayal of the referee and his remit, the limitations of the legitimacy of his decision also becomes apparent, which referee and Podcaster Alex Feuerherdt describes as follows "There is a distinction between the fact of a wrong decision about the facts of play and a decision violating the rules of the game. [...] The latter occurs when a ref misapplies a rule in a situation, [the former] when his perception of what went on is wrong. For the most part, the difference between the two is rather clear and obvious."
Not to commit such violations of the rules is the most principled task of a referee, and not letting the stand that of the judicial branch of the game's governing bodies. But those bodies do not see themselves - in the words of Hans E. Lorenz, head of the 'Sportgericht' at the DFB - as "a repair shop for erroneous refereeing decisions."
Feuerherdt concurs with that view, as any other stance would open Pandora's box, leaving all doors open for games to be decided or annulled in formal meetings rather than sporting contest. That would not just destroy the game as spectacle, in which truth is what unfolds on the pitch and is apparent as the final whistle goes, but also ignore that "the referee is one of the human beings contributing, with decisions that can't always be the right ones, to the game being played." As such, the need to let these decisions stand is apparent, as no one would want to correct any of the mistakes players make after they did so. What mistakes are made is an integral part of the tension and excitement of a match.
There are few permissible exceptions of the rule, in which retrospective action supplements the original decision making by covering events that were not considered either way by the referee. In these cases suspensions are issued belatedly in a way that is compatible with the finality of the 'live' decisions, as they are not overturned and the referees decision making is rather expanded on its own terms.
To create a judicial attack surface in every decision during a game would, as Feuerherdt argues, not just be wrong, but also utterly impractical. While attempts to count out mistakes in officiating from results are bound to fail for elite competition, they are unfathomable for the majority of football played on Sunday League pitches. The thought of judiciary committees attempting to re-referee games by means of written statements is preposterous.
Feuerherdt, who is responsible for referee training in one of Germany's regional football associations, also holds that leaving decisions with the referee is ultimately the most just approach - even though they are at times flawed. Neither technical aides nor post production of games after they finish "are likely to realise an ideal of complete justice and perfect officiating," which should lead us not to bemoan that fact, but give up an empty ideal. There ultimately is no instance better equipped or prepared to make these decisions than the referee who is there to make them.
Of course, the position of power thus created comes with great responsibility. The right way to react to this situation is not to weaken referees, but to push for them to be even better positioned to make the right calls.