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Citation: 1 Colum. J. Eur. L. 369 1994-1995
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ESSAY
SOCCER, FOOTBALL AND TRIAL SYSTEMS
William T. Pizzi*
As citizens become increasingly frustrated with the American criminal
justice system and concerned about a trial system that seems to be more about
winning and losing than it is about truth and that seems to place more
emphasis on the skill of the lawyers than it does on the evidence, it is only
natural to wonder how trial systems work in other western countries. Does a
trial system have to be this complicated? Are trials in other countries
punctuated with frequent sidebar conferences where subtle points of laws are
argued among the lawyers and the judge, out of the hearing of the jury? Do
other trial systems place as heavy an emphasis on lawyers and lawyering skills
as does the American system?
Unfortunately, it is not as easy to gain an understanding of a foreign legal
system as one might think because the foreign system is always filtered
through the prism of one's own legal, political and cultural traditions, making
it hard to understand and appreciate the foreign system without patience and
effort. Many of the generalizations that are frequently offered to describe
* Professor of Law, University of Colorado School of Law. Professor Pizzi has written
comparative articles on Italy (William T. Pizzi & Luca Marafioti, The New Italian Code of
Criminal Procedure: The Difficulties of Building an Adversarial Trial System on a Civil Law
Foundation, 17 Yale J. Int. L. 1 (1992)) and Germany (William T. Pizzi & Walter Perron,
Crime Victims in German Courtrooms: A Comparative Perspective on American Problems, 32
Stanford J. Int. L. - (Winter 1996).
This essay had its genesis in an op-ed column I wrote for the Denver Post in August of 1994. I
very much appreciate the encouragement I received from colleagues and friends who urged me to
expand the column into a longer piece. I would particularly like to thank my colleague Paul
Campos who read a draft of this essay and gave me many helpful suggestions to improve the
essay. I also would like to thank Boyd Kimball Dyer, a professor at the University of Utah
College of Law and a soccer referee (certified by the United States Soccer Federation) who
received a draft of this essay from a mutual friend and who called me to offer some clarifications
and corrections on the rules of soccer.
COLUMBIA JOURNAL OF EUROPEAN LAW
[Vol. I
continental trial systems - that they have no rules of evidence, that they are
not adversarial, that they have no presumption of innocence, etc. - are either
inaccurate or misleading. More importantly, saying what continental systems
don't have doesn't do much to describe the concept of trial that is shared by
continental systems or to explain how that concept differs from the American
idea of what a trial should be.
In learning to appreciate other trial traditions American lawyers are at a
special disadvantage when compared to European lawyers. While European
lawyers are constantly exposed to various aspects of our legal system and our
legal culture through the many American movies and television shows that
center on American trials or other aspects of the American legal system, very
few American lawyers know even the most basic rudiments of European trial
systems.
This essay is an attempt to introduce American readers to the concept of
trial that dominates the so-called civil law countries (which include most
European countries) in order to show how the concept of what should occur at
a civil law trial differs in important respects from what is considered proper
and desirable at American trials. But instead of talking about the two systems
directly, the essay approaches the subject of trial systems by approaching the
topic through a common passion shared by both Europeans and Americans: a
passion for football. But, of course, as the 1994 World Cup games
demonstrated to Americans, it is football of a very different type that
Europeans love, namely, what Americans refer to, and what I shall refer to in
this essay, as "soccer."
It may seem bizarre as an initial matter to think that there is anything that
sport can teach us about trial systems. But, on reflection, I think that it is not
surprising that elements of a country's popular culture, such as the sport it
loves, might reflect the legal culture of that country as well and thus help to
explain the legal culture. Games of sport are defined by rules and infractions
of those rules must be punished by a referee or a judge. But "rules,"
"referees," and "violations of the rules," are equally part of the vocabulary we
use to discuss trials. To the extent that soccer differs conceptually from
football in its concept of the need for rules, in its view of the way rules should
be enforced, and in its concept of what the game should emphasize on the
playing field, it should not be surprising to find that some of these same basic
conceptual differences exist in the respective trial systems as well.
1. The Rules of the Games
In soccer, the rules that control the play of the game are comparatively few
and most are fairly obvious - you can't intentionally trip someone or
physically knock them off the ball or engage in dangerous play. By contrast,
the rules that govern American football are incredibly complicated. Consider
just a few: certain players on the offensive team may move before the snap of
the ball but only in certain directions, others may not even flinch; certain
offensive players may be blocked or impeded a certain way, but others may be
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SOCCER, FOOTBALL AND TRIAL SYSTEMS
blocked only if within a specified distance from the line of scrimmage;
offensive tackles usually may not receive a forward pass, but sometimes they
may be eligible to do so; a quarterback may not intentionally throw the ball to
the ground to avoid being tackled for a loss, but in certain areas on the field he
may do so and, at certain points in the game, he is even permitted to spike the
ball at his feet. Even the running of the clock is governed by its own complex
set of rules that stop the clock in certain situations, but permit it to run in
other situations.
Another indication of the different emphasis the two sports place on rules
and the enforcement of those rules is the difference in the number of officials
that are thought necessary to enforce the rules. Although a soccer field is
substantially bigger than a football field and, in addition, play tends to be
much more spread out around the entire field and to move quickly great
distances up and down the field, play is much less officiated than in American
football. There is only one referee on the field and this referee has sole
responsibility for controlling play among the players on the field. The only
concession to the size of the field are two linesmen who follow play from the
sidelines and help the referee with decisions at the perimeters of play for
which the referee may not be well positioned. They indicate by raising a flag
when the ball has gone over the sideline, when players are offside, and when
fouls are conmitted. But only the referee has a whistle and only the referee
can stop play.
By contrast, at a professional football game there are between six and eight
officials on the field, the better to observe play at all times from different
positions and different angles. Any of them can stop play at any time for
perceived infractions of the game's extraordinarily complex rules. In addition
to the officials on the field, there is a whole category of lesser officials off the
field who are there to assist the officials on the field by keeping track of the
official set of chains as well as the unofficial set of chains and by marking the
line of scrimmage prior to the start of each play.
Part of the tremendous difference between the numbers of rules that govern
soccer and football and the numbers of officials thought necessary to enforce
those rules stems from the very different pace which is thought desirable for
the two games. In soccer, there is a strong preference for not interrupting the
flow of the game if possible and for letting the players play. Consequently, it is
expected that minor infractions of the rules will be ignored and the referee is
supposed to be in the background as much as possible.
Because football is governed by a much more complicated set of rules that
need to be enforced by a comparatively large "officiating crew," the pace of
the game is completely different from soccer. The game is frequently
interrupted by the fluttering of little yellow flags often followed by conclaves
of officials trying to reach agreement on the appropriate ruling in the
particular situation. Sometimes they will even decide after such a conclave
that there was no violation of the rules after all.
COLUMBIA JOURNAL OF EUROPEAN LAW
2.
[Vol. I
The Way the Rules Are Enforced
A more complicated set of rules and a larger number of officials, naturally,
results in many more interruptions and rulings during a game. But, in
addition, to a plethora of rulings by the officials, football places particular
stress on technical precision in the making of those rulings and in marking off
penalty assessments during the game. If a penalty is ten yards, it is very
important that it be ten yards, not nine yards or even nine and one-half yards.
To assist in that determination, the field is carefully marked off in chalk to
assist officials. But even that demarcation is often not sufficient: chains are
held by officials at the side of field that mark off exactly ten yards, and at
various points in the game those chains will be brought onto the field to make
sure that the ruling is precisely correct. Sometimes, when a team is found to
be a few inches short of getting a first down, the official making that
determination will keep his finger on the chain and use the chain to help place
the ball precisely where it needs to be for the next play to ensue.
In soccer, by contrast, it is thought preferable to keep the game moving and
to that end there is much less emphasis on technical precision in rulings. If a
foul is whistled, there is often hardly a break in the action as the ball is
quickly placed on the turf, only very roughly where the infraction occurred,
and the game immediately resumes. While there are times when a precise
distance is specified in the rules and the distance may be important - at a
free kick following a foul the opposing players are supposed to be ten yards
back from the ball - this is determined very approximately (and very
quickly) by the referee without the benefit of chains or field markings.
Obviously, the nature of the games are different, with football emphasizing
movement in ten-yard intervals up and down the field, so that there is a
constant need for measurement in football that doesn't exist in soccer. But the
games remain similar in the sense that in every game there are bound to be
difficult decisions for the official or officials, some of which may even affect the
outcome: Was the ball in the goal (or over the goal line)? Did the player
fumble before he was tackled or after he was tackled? Did the player's hand
deflect the ball or not? Did the foul take place inside the penalty box or
outside the box? The critical difference is that football is not self-conscious in
the amount of effort and time it is willing to devote to trying to make these
decisions come out exactly right. An extreme example of this obsession with
adjudicative perfection is the video-taped appellate review procedure that was
used in the National Football League for two seasons. Under that regime,
decisions made by the six officials on the field were subject to review by a
different set of officials who sat in a box perched high above the field. Often,
the head of the crew of officials on the field would be called to the sideline to
talk on the telephone with the reviewing officials and would then scurry back
to the center of the field to announce the decision of the reviewing body.
This emphasis on procedure throughout the American game results in
contests that are of exact "official" length but that are of rather uncertain
actual duration. Thirty minutes of precisely kept "playing time" in football
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SOCCER, FOOTBALL AND TRIAL SYSTEMS
often consumes at least an hour and one-half, and maybe more, of real time.
By contrast, in soccer 45 minutes of soccer is basically 45 minutes of soccer
with rarely more than two or three additional minutes of "injury time" added
on.
Equally interesting from a comparative perspective is the way that time is
controlled in the two sports. In football, the "official" clock is kept in public
view and it is started and stopped by a subofficial off the field at the direction
of the officials on the field. But even though the clock is open to public
scrutiny, that does not prevent disputes from arising about the accuracy of the
time on the official clock and it is not uncommon for an official in the waning
moments of a game to order that several seconds be "put back on the official
clock" to correct for a perceived error in the stopping and starting of the clock.
By contrast, at soccer games there is no official clock in public view that
counts down the time remaining. The time is kept on the field by the referee
who alone determines how much injury time will be added to the regular 45minute half and who will signal the end of play by blowing his whistle.
3. The Differing Relationships Between Players and Coaches in the Two
Sports
Another striking difference between football and soccer is the very different
relationship that exists between coaches and players during the actual game.
In soccer, the relationship during a game is simple: there is no coaching
permitted during the game. No coach prowls the sidelines to shout signals or
relay specific advice; the coach is not permitted near the playing field and
instead usually sits quietly on the bench, often chain smoking to relieve the
tension. The decisions the coach has to make during the game are limited to
the decision whether to make substitutions. But because only three
substitutions are permitted during the game, with the third of those being
limited to replacing the goalkeeper, even that involvement in the game is
extremely limited.
The very secondary role that coaches play during soccer games contrasts
sharply with the role of American coaches during their game. Football coaches
are much more involved in the play of the game. Typically, they decide what
every offensive play will be. (In addition, defensive formations are also usually
determined by the coaches, not the players.) Because the pace of the game is
more leisurely than soccer and there are so many interruptions, all the major
strategic decisions - whether to "go for it" on fourth down, whether to punt
or try a field goal, or whether "to go for two" (points) following a touchdown
- are made by the coaches, not the players.
At one time, it was the custom to send plays to the quarterback by
whispering the play to an offensive player and substituting that player into the
game. This player would in turn whisper the play to the quarterback who
would then tell the other players in the huddle what the next play would be.
This was a cumbersome procedure which has now been obviated by the
insertion of a small receiver in the helmet of the quarterback so that the
COLUMBIA JOURNAL OF EUROPEAN LAW
[Vol. I
coaches can speak directly to the quarterback by a transmitter and give the
quarterback precise directions for the next play.
In contrast to soccer where they want the players to play on their own and
try to accomplish that by forbidding sideline coaching, there is constant
coaching by a plethora of coaches throughout a professional football game.
This is made much easier both by the constant breaks in action between plays
and by the unlimited substitutions that permit coaches to sit with offensive or
defensive specialists to go over what the player should do when they are
reinserted into the game again. Sometimes coaches can be seen on the
sidelines drawing up formations for the players to study or reviewing polaroid
pictures of different opposing formations with the players, which pictures were
taken minutes earlier by team personnel high up in the stadium and sent down
to the sidelines.
During the game, players are expected to carry out the plays that have been
designed by the coaches and that the players have been drilled in advance to
execute with precision. If the coaches have done their jobs correctly, it is
hoped that the players will have the answer to any defensive alignment that
they will face during the game. Of course, not all plays during a football game
work the way they were designed, and sometimes the players must improvise.
But while such improvisation is important, the way those plays are described
- as "broken plays," and those who execute such plays are "scramblers" makes it clear that these are viewed as exceptional situations and thus there
have been excellent NFL quarterbacks who couldn't scramble at all.
Soccer is fundamentally different in concept in that improvisation and
spontaneity are considered the heart of the game. (In this regard, soccer is
much more like basketball, a game that not coincidentally is extremely
popular in Europe, while football has been slow to catch on.) While there are
different offensive and defensive alignments that teams use and there can be
set plays on corner kicks or throw-ins, the size of the field and the fluidity of
the game make for a game that places great emphasis on spontaneity and
improvisation. There is no such thing as a "broken play" because soccer is
understood to be a game that requires that sort of improvisation throughout
the game. With no time outs and only a couple of substitutions, teams shift
quickly from offense to defense and back again, and thus players are expected
to exploit spontaneously the fluid possibilities of any situation that may present
itself.
4. The Rules Governing Criminal Trials in Europe and in the United
States
The sharp contrasts that exist between soccer and football are worth
thinking about when one compares European criminal trials with American
criminal trials. At European criminal trials, the judges - usually a mixed
panel of professional judges and ordinary citizens - want to hear and
evaluate all of the relevant evidence; to that end, rules of evidence and other
rules aimed at excluding relevant information are few. Witnesses are granted
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SOCCER, FOOTBALL AND TRIAL SYSTEMS
considerable latitude to give their testimony in their own words and
interruptions in the flow of testimony are discouraged. Even if a piece of
evidence is what an American lawyer would seek to exclude as "hearsay,"
there is likely to be no objection: the judges want to hear all the evidence and
they don't want to be deflected from their task by having to deal with
technical violations of evidentiary rules unless the issue is important. A day of
trial testimony at a European trial is pretty much a day of hearing the
testimony of witnesses and listening to them answer questions.
By contrast, the rules that govern American criminal trials are extremely
complex. Lawyers are expected to tightly control the questioning of witnesses
hence testimony must be elicited from witnesses in small bites so that
objections can be made in a timely fashion. Some of the objections may
necessitate huddled discussions between the lawyers and the judge at the front
of the courtroom or may even require removing the entire jury from the
courtroom so that fine legal distinctions can be more fully argued and
analyzed. Sometimes there will even be a hearing within a hearing as the
judge listens to proposed testimony to see if the foundation for certain
testimony is correct or to see if the testimony is appropriate for the jury's
hearing. A day of trial testimony in an important trial in an American
courtroom will often mean lots of legal arguments and subtle rulings, but
comparatively little testimony from the witnesses when compared to a similar
trial in Europe.
5. The Roles of Lawyers and Their Relationship to Witnesses at
European and American Trials
Just as coaches at an American football game are much more involved in
every phase of the game itself - in play calling, in substitution decisions, in
deciding whether or not to try a field goal or punt, etc. - the same is true of
lawyers at American trials. Because the American trial system is so heavily
proceduralized, only someone trained in the law can be expected to make the
kinds of sophisticated judgments about tactics that the system calls for, and to
fully appreciate the legal issues that arise with considerable frequency during
the pretrial and trial stages of an important criminal case. While, in theory,
we may tend to think of the witnesses as the "players" at an American trial
because, after all, the strength of the evidence should be what is ultimately
determinative of the outcome of the case, in fact, the line between players and
coaches is very difficult to draw in the American trial system. The system
places such heavy emphasis on lawyering skills that it seems understood and
accepted that an excellent lawyer can affect the outcome of a case even when
the evidence supporting that lawyer's side of the case is weak.
The line between players and coaches in the American trial system is
further blurred by the heavy emphasis the system places on the careful
pretrial preparation of witnesses by the lawyer calling that witness. In any
important criminal case, the testimony of the prosecution and defense
witnesses will have been carefully rehearsed by the respective lawyers.
COLUMBIA JOURNAL OF EUROPEAN LAW
[Vol. I
Witnesses will have their testimony shaped by the lawyers so that it has
maximum effect on the jury and the lawyers will try to prepare the witnesses
to withstand, and perhaps even counter, the cross-examination of the other
side. If the witness is an important witness, this preparation may entail
bringing in another lawyer to put the witness through a mock crossexamination. In major civil cases today, this preparation is often even more
extensive with such cases being "pretried" in front of a group of mock jurors.
In short, we have built a system that is so complicated that spontaneity from
witnesses, far from being desired, is something lawyers and judges dread and
so the system discourages it in all kinds of ways.
European trial systems conceptualize trials in a very different way. While
lawyers are important in any trial system, it is preferred and intended that
continental lawyers will have far less influence on what occurs in their trials
than American lawyers have on theirs. This difference rests in part on the fact
that European trial systems make a different set of assumptions as to what
should take place at trial. Far from wanting witnesses who are prepared and
controlled by the lawyers, those trial systems start from the premise that
witnesses should always be permitted to testify in their own words and in their
own way about the events in question without being influenced in their
testimony by others. To that end, European trial systems place a heavy
emphasis on spontaneity, and the sort of pretrial preparation and rehearsals of
witness testimony by lawyers that takes place routinely in the United States is
not only discouraged - it is often considered highly improper. Rather than
testifying according to a rehearsed set of questions and answers, European
trial systems prefer that witnesses have the opportunity to testify about the
events in question in their own words and at their own pace before questioning
from the judges and then the lawyers takes place.
This means, of course, that some things may slip out in a witness's account
that are not relevant to the issue in question, or that may even be somewhat
prejudicial; but European systems prefer to accept those risks in order to
permit witnesses to testify candidly and completely about the events in
question.
Given the fact that a European trial differs sharply in concept from an
American trial, it is hardly surprising that lawyers in that system would be
assigned a far more limited role in the proceedings than their American
counterparts. Because European trial systems are less proceduralized and
because spontaneity is desired, there is not the same need that there is in the
United States for lawyers to spend days or weeks briefing legal issues and
preparing witnesses in advance of trial. It is intended that European lawyers
will have much less control over what occurs at trial and their role at trial is
de-emphasized in such a system when compared to the way American lawyers
are permitted to dominate the courtroom in the United States.
Some of this difference in the role of lawyers in the two systems can be seen
in the physical movements of lawyers around the courtroom, which again has
parallels with the sports of football and soccer. While American lawyers have
considerable freedom to move around the courtroom, sometimes moving over
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SOCCER, FOOTBALL AND TRIAL SYSTEMS
to the area in front of the jury box to question a witness or make an opening
or closing statement, or sometimes approaching the bench to argue a point of
law, European lawyers are expected to stay in their seats, which are usually
located at the sides of the courtroom. They ask questions from that location
and they make final arguments from there as well. Like European soccer
coaches, they must remain well back, at the periphery of the proceedings.
Conclusion
Our American trial system reflects many of the cultural values encoded in
the rules and traditions of professional football: the worship of proceduralism,
the attempt to rationalize every aspect of the decision-making process, the
distrust of spontaneous action, the heavy preference for managerial control
over participants, and, above all, the daunting complexity of the rules that
such a system requires.
But what is appropriate for a professional sport is not appropriate for a
national trial system. A trial system does not exist for the purpose of
entertaining the public or showcasing the skills of its legal players. A trial
system must strive to achieve and keep in balance much more difficult and
important objectives. No trial system is a strong system (1) if it cannot be
trusted to acquit the innocent and convict the guilty with a high degree of
reliability; (2) if it fails to treat those who come in contact with the system including victims and witnesses as well as defendants - with dignity and
respect; or, (3) if it fails to make wise use of limited judicial resources. I
question how well the American trial system is meeting any of these
objectives.
Today trials in the United States are prepared for, officiated, and even
reported on much like actual football games. More and more the media
approaches important trials as if they were sports events, and the coverage of
those trials on television is almost identical to that which is used for football
coverage: it includes video replays, color commentators, sideline reporters who
prowl the corridors of the courthouse, and plenty of Monday morning
quarterbacking. That may make for a trial system that is entertaining and
exciting, and one that certainly emphasizes winning and losing, but does that
make for a strong trial system? I don't think so.