It’s a bad look, in my own self-interested opinion, for TaxProf Blog to have nothing to contribute to the global phenomenon that is the World Cup finals of 2026, especially when the United States men’s team is performing exceptionally well and is very much in the center of the action, and not simply as co-host of the tournament. Self-interested because I am a soccer partisan of decades-long standing. One might even say that my views of law are shaped more by my experiences in and with soccer rather than the other way around.
The (possible) omission is even more striking when there is a jurisprudential question staring law students, lawyers, law professors, and judges squarely in the face.
So I am jumping in, on a posting day usually allocated only to other TaxProf Blog team members, to highlight that question and some reflections on it. To wit:
(More, after the jump.)
Was the American forward Folarin Balogun (usually referred to as “Flo”) properly ejected from yesterday’s Round of 32 match between the United States and Bosnia and Herzegovina for what the Laws of the Game (initial caps intended) describe as “serious foul play”?
The US ended up defeating Bosnia, 2-0, in a match that gave players, coaches, fans in the stadium, broadcasters, and those of us watching from home every bit of the thrill-a-minute intensity that has characterized much of the World Cup these last three weeks and the US team’s experience in particular. Just before halftime, Flo Balogun – recognized as the American team’s most lethal attacker – scored to give the team a 1-0 lead going into the break.
About 15 minutes into the second half, Balogun tangled with a Bosnian player. Balogun was in the air; he landed awkwardly and heavily on the Bosnian’s leg and ankle. In the moment, at speed, it looked to me like a tangle of legs. The center referee on the field – the trial judge, let us say – let play go on, as the referee had let play go on many times earlier in the game after collisions and tangles. But the Video Assistant Referee (the VAR) had other ideas. Call the VAR the court of appeals, whose standard of review is nominally “clear and obvious error” or a “serious missed incident” by the center referee. The link takes one to the VAR protocol as laid by the IFAB, the “International Football Association Board,” the international body that states and interprets the Laws of the Game. The IFAB consists of 5 voting members: FIFA, plus the 4 founding British football (soccer) associations: England, Scotland, Wales, and Ireland (meaning Northern Ireland).
Sitting in a room in Dallas, aided by multiple TV monitors, different perspectives on the game, and the power to slow down and isolate the footage, the VAR (one expert human referee aided by two others) called to the center referee on the headset and after a conversation persuaded him to review the footage on a sideline monitor. MInutes later, the center referee announced that Balogun would be shown a red card. The US were down to 10 men for the balance of the game, and they knew that even if they won, Balogun would be suspended for the next match.
Indeed, the United States persisted. The team amped up its intensity. Substitutions were made to adjust the team’s tactics. Malik Tillman, an American born in Germany, put the US up 2-0 with a free kick of Beckham-esque quality. The Americans are through. Next up: a match against the surprising Belgians. (Surprising, because despite the talent on Belgium’s roster, the team has mostly sleepwalked through the tournament so far. They woke up yesterday in their match against Senegal in time to score two late goals and earn a tie in regular time, and then – thanks again to the VAR – were awarded a penalty, converted it, and walked away with a win.)
As to Flo Balogun, the issue that divided players, coaches, commentators, and social media contributors around the world has been, from more or less 60 minutes into the US v Bosnia match until right now (as I type) and beyond: was the final result correct? Did Balogun deserve a red card? (My own view: no.) The better question, and the one that both soccer people and non-soccer lawyers, law professors, and judges *should* ask, is: was the VAR correct in prompting the referee on the field to overturn his initial judgment? In legal terms, did the referee err (clearly landing on the wrong side of a judgment as to “serious foul play,” or missing it entirely), and was the reviewing “court” right to reverse, given the standard of review? Technically, the referee on the field made and issued the final judgment; that referee is said to have concurred with the VAR. But “everyone knows,” as they say, that the VAR made the call. Not in Santa Clara, where the game was being played, but via video, from Dallas.
Robot referees, anyone?
In an era of algorithmically-motivated decision-making of many sorts, from sentencing decisions to credit scores to health insurance claims to weapons deployment on the theaters of war, lawyers in all sectors of the profession need to become increasingly attentive not simply to the mechanics of specific decisions in the context of specific statutes, constitutions, and other legal norms, but also to the socio-technical and socio-cultural systems in which decisions are being made. “We” used to be able to take those systems more or less for granted. As law professors, we mostly taught (teach) about courts and legislatures and agencies. Law, today, is about much, much more.
I used soccer and the VAR to illustrate that claim, once, in this too-long piece that was a lot of fun to write and that is – for soccer-obsessed people like me – perhaps fun to read and reflect on. The length gave me room to refer to a lot of related law-and-sports work, including excellent papers by Mitchell Berman (University of Pennsylvania) (“Of Law and Other Artificial Normative Systems”) and Meg Leta Jones (Georgetown) and Karen Levy (Cornell) (“Sporting Chances: Robot Referees and the Automation of Enforcement“).
To conclude, I can only echo the words of the great soccer announcer Ian Darke, who is famous for his call of Landon Donovon’s goal for the US during the 2010 World Cup: “Go, go USA!”
