How To Sound Like The Smartest Person At The Backyard Barbecue
Will you get a red card if you sue FIFA?
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There must have been a spike in the use of Harvey, Legora, and the other legal AI platforms late last night as thousands of American lawyers tried to figure out how to sue FIFA for the red card given to American soccer star Folarin Balogun, despite having been screaming at their televisions for hours. This morning, the front page of The Wall Street Journal practically begged for some lawyer to make a claim. In case you don’t have access to such AI legal smarts, even though they are becoming ubiquitous, instant and nearly free, here is the AI enhanced summary for you to pontificate about with a beer in your hand at the Fourth of July barbeque in the backyard of that neighbor you are so envious of that you no longer like them. The short answer is that you can sue—if you can avoid sanctions—but you probably cannot win. If you were going to sue anyway, however, here are the claims you would make, with only one having even a remote—as in you may be better off buying a lottery ticket—chance of success.
Every theory mentioned here has more holes than space here will allow me to explain, but if you want to sound like both a soccer fan and a litigator, because all fans sound like litigators yelling, at your neighborhood Fourth of July party, here is your legal playbook.
The first rule of sports litigation, my twelve years old nephew tells me, is that courts almost never want to become instant replay officials. Whether the dispute involves baseball umpires, Olympic judging, horse racing stewards, or FIFA referees, judges generally recognize that sports require finality– like that famous sporting event, Bush versus Gore . Games have winners and losers because someone has perceived authority to make decisions on the field, as in who has the best homemade salsa. If every controversial call became federal litigation, no championship would ever end, but the AI agents would be very happy because they would be helping their company’s get very rich.
That is why the first lawsuit most American lawyers would draft is also the weakest.
Negligence
The first lawsuit virtually every American lawyer who is a corporate lawyer like me, and therefore not qualified to give such theoretic smack talk, would think about filing is also the one most likely to fail. A negligence claim would allege that the referee and the Video Assistant Referee misapplied the Laws of the Game by elevating what American coach Mauricio Pochettino described as an accidental challenge into a straight red card. The complaint would argue that reasonably competent officials, applying the same written rules to substantially the same facts, should not have reached that conclusion, particularly when similar challenges elsewhere in the tournament produced no red card at all. Pochettino himself publicly argued that Balogun’s challenge “never was intentional” and “never was a red card.” Even the legal AI I’m using thinks this sounds persuasive until one remembers why referees exist in the first place. Sports officials are hired precisely because they are expected to exercise judgment under pressure. Courts have long understood that replacing the judgment of referees with the judgment of judges would effectively place the judiciary in charge of every close call in every sporting event, which is what Judge Judy’s progeny would love to do because it would be great for ratings. Unless a plaintiff could point to fraud, corruption, or some extraordinary departure from the rules, like getting a free airplane as a gift, no strings attached, the courthouse door closes almost as quickly as it opens.
FIFA has applied its own standards in an arbitrary and capricious manner
A more sophisticated lawyer, or one with a better AI assistant that he or she paid more for, since I think I learned in law school that possession of more toys is nine tenths of the law, would probably shift away from negligence and toward a theory more familiar to anyone who practices administrative law. FIFA has extensive written rules governing dangerous play, VAR review, and disciplinary sanctions. If nearly identical conduct receives dramatically different treatment from one match to another, an attorney might argue that FIFA has applied its own standards in an arbitrary and capricious manner. My AI legal assistant, who for some reason writes as if she has an English accent, even recommends that the complaint should be filled with screenshots, slow-motion video comparisons, expert analysis, and examples from other World Cup matches in an effort to demonstrate that Balogun’s challenge was judged differently than materially similar plays. The issue would no longer be whether the referee simply made a bad call, because bad calls are part of every sport. Instead, the argument would become that FIFA failed to administer its own disciplinary system in a reasonably consistent fashion. It is an intellectually stronger theory than simple negligence, just like your mother’s homemade salsa was hotter than the award-winning stuff that is being served at the barbecue, but it encounters the same practical obstacle. Inconsistent officiating has existed for as long as competitive sports have existed—that is why you lose your voice at games because you are yelling at the Ref– and courts have shown remarkably little appetite for transforming disagreements among referees into legal causes of action. Sorry, Ma.
Did FIFA Fulfill The Contractual Obligations It Imposed Upon Itself
Contract lawyers, who have their own set of AI assistants since they know they are most likely to be put out of business before the other lawyers, would immediately see the case through an entirely different lens. Every player participates in the World Cup through an intricate network of contractual relationships involving FIFA, the national federations, clubs, tournament regulations, and player agreements, which twelve-year-olds memorize instead of doing their homework. Those documents establish not only eligibility and discipline, but also the procedures by which matches are to be conducted and sanctions imposed. An aggressive advocate trying to impress his future mother-in-law could argue that the issue is not whether Balogun deserved a red card in some abstract sense, but whether FIFA fulfilled the contractual obligations it imposed upon itself by administering those rules fairly and consistently. Framed this way, the lawsuit becomes less about soccer and more about institutional governance. Yet this theory, too, confronts formidable obstacles because the governing documents intentionally vest referees with extraordinarily broad discretion. Courts are understandably reluctant to rewrite that bargain after the final whistle has blown simply because one side believes the discretion was exercised poorly. Ma, I still think your salsa is better. Really.
Constitutional Due Process: The Amendment Right After The One That…
If there is a legal theory that would keep Harvey, Legora, and every appellate lawyer occupied well into the night, because they are not regularly invited to any party, let alone the neighborhood barbeque, it is not really about the referee at all. It is about process. Balogun’s red card automatically suspended him for the United States’ next match, one of the most consequential games of his career. Under FIFA’s disciplinary rules, however, that automatic one-match suspension is generally not itself subject to appeal; only additional sanctions imposed later by FIFA’s disciplinary bodies may be reviewed, I am told by my obsessed twelve year old nephew who never liked his grandma’s salsa. An American lawyer who has not had too much to drink immediately recognizes the question that follows. How can an athlete lose the opportunity to compete on the world’s biggest stage without any meaningful mechanism to challenge the decision that produced the suspension?
The obvious response, according to the four hundred IQ AI legal assistant with an English accent, is that constitutional due process protections constrain governments, not private organizations. Of course, she has a King and we don’t, so what does she know about any constitution? As an American, I know FIFA is neither Congress nor a state agency, and it is not bound by the United States Constitution—although currently many members of both don’t think they are either. But sophisticated AI native lawyers, and obsessed twelve year olds, would quickly point out that private organizations frequently create their own obligations of procedural fairness through contracts, bylaws, and governing regulations. If FIFA promises an impartial and consistently administered disciplinary process, then the real question is not whether the referee reached the correct result, but whether the institution delivered the process it promised. That distinction is subtle but important. AI confirms that courts are far more willing to examine whether an organization followed its own rules than they are to decide whether a referee correctly interpreted an offside trap or a dangerous tackle– or whether you are in that space that for some reason is called “the kitchen.” Which is why no one should play pickleball. Really. You should sue because the rules don’t make any sense.
Should FIFA Get Away With A System That Has No Review?
Ironically, the legal theory with the greatest intellectual appeal to my nephew, is basically, WTF? But he thinks the “F” stands for “FIFA.” This argument, given to me by this English woman in my computer, has almost nothing to do with whether Balogun should have received the red card. Instead, she asks, eerily politely, whether FIFA should continue to maintain a disciplinary system in which one of the most consequential decisions in international sports is effectively insulated from meaningful review. Every mature legal system recognizes that even conscientious decision-makers make mistakes. Businesses establish internal appeals. Universities provide grievance procedures. Arbitration awards may be reviewed in limited circumstances. The American judicial system itself is built upon the premise that my mother’s salsa was the best, and that no single decision-maker should ordinarily have the final word when significant rights are at stake. Especially my brother in law.
Hydration Breaks Are The Precedent
FIFA has chosen a different balance, because they can handle alcohol better after all those parties than we can. Its system values certainty, speed, and the orderly progression of a month-long global tournament over extended litigation about officiating decisions. That choice is understandable. The World Cup cannot stop for weeks while appeals work their way through tribunals and courts—but only for “Hydration Breaks”. But efficiency comes at a price. It places extraordinary authority in the hands of a referee making a split-second judgment under extraordinary pressure, with remarkably little opportunity for meaningful review when that judgment carries consequences extending well beyond the ninety minutes on the field.
It’s Not Going To Happen, Ma
No court is likely to order FIFA to place Folarin Balogun back on the field against Belgium. Even if the judges are recently appointed by He Who Shall Not Be Named. The governing rules make that outcome virtually impossible, and my AI, once I clicked again and gave it a prompt it liked better told me that judges have consistently resisted invitations to become supervisors of athletic competitions. But that does not mean lawyers have nothing useful to contribute. We can bring the best appetizers to the party and sometimes we don’t go cheap on the booze. The best lawyers often distinguish between a bad decision and a defective institution. They ask whether the rules were applied consistently, whether the process inspired confidence, and whether the structure itself should evolve. Those questions extend far beyond soccer. They are the questions lawyers ask whenever any institution—public or private—exercises enormous power over the people subject to its decisions. And that may be the most American part of this entire World Cup controversy.
Enjoy The Game And Stop Complaining
So, enjoy the argument with your brother-in-law and your host with the two new cars that you wonder how he can pay for. Compare the replay. Debate the referee. Explain why the contract claim is more interesting than the negligence claim as if you were really paying attention in law school. Tell everyone that procedural fairness is where the real legal issue lies as you gorge on my mom’s salsa. You’ll sound like the smartest guy at the barbecue— because you’ve got your own four hundred IQ Artificial Intelligence legal assistant. Even if she sounds like she came from Downton Abbey after having dinner on The Bear.
But before you reach into the melting ice cooler for your second beer, remember one important thing: you’re just smack-talking legal theory, not giving legal advice. Because if your neighbor follows your recommendation and files suit against FIFA on Monday morning, the first person who may need a lawyer won’t be FIFA.
This article was originally published on Forbes.com
