The New Orleans Saints were robbed of a trip to Super Bowl LIII. Los Angeles Rams cornerback Nickell Robey-Coleman unquestionably committed pass interference when he shoved Saints wide receiver Tommylee Lewis out of bounds before Lewis could catch a pass thrown by Drew Brees with 1:49 left in the fourth quarter of Sunday’s NFC Championship. Had the penalty been called, the Saints would have been poised to run out the clock and Saints kicker Wil Lutz would have been able to attempt a field goal to cement the win.
Inexplicably, no penalty was called. This gave Jared Goff and the Rams one more opportunity to drive the ball up the field. The drive proved successful, as Rams kicker Greg Zuerlein connected on a 48-yard field goal to tie the game. Then, in overtime, Zuerlein kicked a 57-yard field goal for a shocking 26-23 win. Many of the 73,023 ticket holders in the Mercedes-Benz Superdome looked on in horror.
After the game, Saints head coach Sean Payton relayed details from his phone discussion with an NFL official. Payton said the official admitted to him that the officiating crew badly erred. Even Robey-Coleman bluntly acknowledged that he had gotten away with pass interference. “Hell yeah,” Robey-Coleman told the Washington Post, “that was PI.”
Over the last 24 hours, the fallout of an egregious no-call has been intense. Furious Saints fans, among others, want justice. Their challenge: The game is over and there is no realistic remedy to change the outcome. As explained below, some wrongs can’t be righted, and some harms are not for the law to correct.
The absence of a viable remedy within the NFL
As Pro Football Talk’s Mike Florio noted, the Official Playing Rules of the NFL contain language that could, in theory, permit NFL commissioner Roger Goodell to reverse the outcome of a game or require that teams re-start a game from a point before an “extraordinarily unfair act” occurred.
The relevant language is found in Rule 17, which pertains to “emergencies” and “extraordinarily unfair acts.” Rule 17 refers to the commissioner possessing the “sole authority” to investigate whether a “calamity” occurs during a game and whether it is “so extraordinarily unfair or outside the accepted tactics encountered in professional football that such action has a major effect on the result of the game [and] would be inequitable to one of the participating teams.” Under the rule, the commissioner can take any necessary corrective measure, including re-starting the game from the point of the incident or from the beginning.
However, Rule 17 is worded to exclude decisions by game officials when a team complains about those decisions. The rule expresses that the commissioner “will not apply authority in cases of complaints by clubs concerning judgmental errors or routine errors of omission by game officials. Games involving such complaints will continue to stand as completed.” This language suggests that Goodell would have to decide, on his own and not at the behest of the Saints, to investigate the lack of call and determines if it counts as an “extraordinarily unfair act.”
The concept of a “do-over” is foreign to the NFL but is not so extraordinary to other pro leagues. Take the NBA. In 2008, the league ordered the Atlanta Hawks and Miami Heat to replay the final 51.9 seconds of a game because the scorer in Atlanta’s arena (then called the Philips Arena) mistakenly ruled that Heat center Shaquille O’Neal had fouled out when in fact he only had five fouls. O’Neal’s absence from the remainder of the game played a role in the Hawks winning in overtime and thus the NBA ordered the history of the game be re-written (the Hawks would win again after the replay). In Major League Baseball, games that are impacted by rain can be erased if 4.5 innings aren’t played and other times games are resumed. Baseball games have even been played under protest, with the protesting team occasionally winning. These examples are not purely on point, of course, since they involve regular seasons where the same teams play one another again. Still, they highlight that a “re-do” isn’t an implausible outcome for the major pro sports leagues.
Yet the reality is that if Goodell—who attended the AFC Championship in Kansas City and who presumably watched the NFC Championship on TV—wished to invoke Rule 17, the time to do so would have been during the game. Once a conference championship is over, restarting or replaying it would involve a bevy of logistical hurdles.
For instance, would ticketed fans be allowed back in the Superdome or would new tickets be sold? Or, would the game be played with no live audience—which would take away a key ingredient to the Saints’ homefield advantage? Also, would Fox, which like other networks carefully plans every minute of air time months in advance, broadcast the resumed game instead of another scheduled program (and if the answer is yes, what would be the contractual ramifications for that other program with Fox)? Would the same, and much-maligned, officiating crew referee the resumed game, or would other officials be brought in? How about the players, coaches and staff—might they have other commitments or family responsibilities on the day when the game would be restarted or replayed? And would players, coaches, staff and referees be paid extra to play or coach in what would seem like Part II of the game? Since the Super Bowl wouldn’t be postponed absent the most compelling of exceptional circumstances, the restarted NFC Championship would also need to happen in the very near future.
The Rams, who are flying back to Los Angeles, would surely object to any restart or re-do. They would contend that returning to New Orleans would be extremely disruptive, especially since they now need to prepare to play the New England Patriots in the Super Bowl on Feb. 3. Like a winner in a disputed election, the Rams would do everything possible to claim finality in the outcome, downplay any questions as to the legitimacy of the victory and attempt to thwart any substantive review.
Even if logistical hurdles could be overcome, resuming the NFC Championship could trigger other kinds of unfairness. The coaches on each team would have time to evaluate what already occurred in the game and use it to devise new plays and schemes. If days from now the game restarted at 1:49 left on the clock, those coaches would know much more than they ought to know had the game played out in real-time. While both teams would enjoy this same tactical advantage, it would create a different kind of game. Also, would the same players be available for the remainder of the game and if not, would roster exemptions be available? For instance, Saints tight end Josh Hill suffered a concussion in the first quarter. It’s unclear if the Saints would simply be short a player in a resumed game or if they could replace Hill.
Perhaps most important, Goodell invoking Rule 17 would create precedent which would bound him and his successors going forward. Once the commissioner injects himself into a game to alter a referee’s mistake, there would be an expectation that he would do so again. This is how a slippery slope begins to cause slippage. And, obviously, there will be bad calls and bad no-calls in future NFL games.
The idea of the commissioner as a sort of interventionist, “super-referee” would likely be unwelcome news to many owners, coaches and players, and probably many fans, too. If Goodell intervenes for one team but not another, some would say this proves Goodell is biased against certain teams. For their part, referees would find that possibility troubling—especially since there is no reason to believe that the commissioner knows more about officiating than a trained referee.
Although the betting community doesn’t have a formal say in the matter, it’s worth noting that this community might the find the possibility of game re-dos as undermining the certainty of bets. This would be particularly true if Goodell was inconsistent in intervening. On the other hand, a bad call can itself undermine a bet. To that point, The Action Network’s Darren Rovell reports that PointsBet Sportsbook will refund all wagers on the Saints due to the “highly controversial non-call.”
The absence of a viable remedy outside of the NFL
The finality of sporting contests is one of the most appealing virtues of sports: There’s a winner and there’s a loser, and the game is truly over. There’s no appellate process or follow-up review. We simply accept that that the game has ended. For the commissioner to disturb that finality seems unlikely.
The same is true of courts.
Bad calls and other irregularities (real or perceived) have led to lawsuits from aggrieved players and fans. Those lawsuits have failed.
Courts have consistently enunciated that bad calls are not causes of action for courts to consider. Stated differently, not all “harms” are remedied through law. Disappointment and frustration over a game, even a wrongly decided one, are harms that law isn’t designed to redress.
To that point, a fan who attended the NFC Championship would struggle to claim a winning contractual violation. While a game ticket is a contract, it’s a very limited contract. It provides a revocable license to enter a facility for a specific event. So long as the ticket holder adheres to the stadium’s code of conduct, the ticket guarantees its holder the right to see the event.
However, the ticket does not guarantee a right to see specific players or see a specific team win or lose. It also doesn’t guarantee that bad calls, which are obviously foreseeable occurrences in sports, won’t happen. These limitations shed light on why a lawsuit brought by a Miami Heat ticketholder against the San Antonio Spurs for resting Tim Duncan and other Spurs stars failed. It’s also why a lawsuit brought by a New York Jets fan over Spygate failed. A game ticket to an NFL, NBA, MLB or NHL game only guarantees its holder that two teams will play each other and that the fan can watch the game from a specific seat. Here, people who attended the NFC Championship received what they bargained for: a right to watch the NFC Championship from the vantagepoint of assigned seats in the Superdome.
Courts also do not want to expend the finite time of judges and jurors on disputes over who won a sporting contest. To the extent courts involve themselves in games, it is usually in relationship to a criminal act, such as White Sox players accepting illegal bribes to throw the 1919 World Series or Boston College basketball players taking bribes to shave points of wins during the 1978-79 season. In those cases, courts were involved not because of honest mistakes by referees. They were involved because of deliberate attempts to undermine the integrity of the contest and change the outcome. As of this writing, there is no reason to believe that the no-call in the NFC Championship was anything other than an unintentional human error.
As a franchise, the Saints would have no viable grounds to sue the league. The NFL constitution, which governs the relationship between teams and the league, makes clear that the decisions of the commissioner are final, conclusive and unappealable. Unless Goodell chooses to reconsider the NFC Championship (which, as explained above, he almost certainly won’t), the outcome of the game is over. Further, franchise agreements between owners and the league also waiver of recourse language that limits the capacity of owners to sue the league, other owners or the commissioner.
There are other persons who may have “lost” as a result of the no-call. They include bettors and businesses that would have profited from the Saints going to the Super Bowl. These parties, in all likelihood, lack standing to bring a case against the NFL. “Standing” refers to a legitimate legal interest in a dispute. A better who places a bet with a sportsbook is in contract with the sportsbook, not the NFL, and thus a lawsuit would be proper against the sportsbook, not the NFL. Such a lawsuit, however, also seems unlikely to succeed given that bad-calls are foreseeable undermines in sporting events and bettors presumably assume their risk when placing a bet. Likewise, any business that would gain from the Saints playing in the Super Bowl isn’t in contract with the NFL. The NFL owes no legal duty to it.
How the NFL can try to prevent the same mistake
The NFL, which has yet to publicly admit the error, should take steps to ensure that games receive better officiating. It goes without saying that refereeing an NFL game seems extremely difficult. The games are fast-paced, and referees’ line of sight is often obstructed by the players themselves. Yet, good officiating is what referees are paid to do. If the play on the field makes officiating too unreliable, then technology may provide assistance. To that point, and as ESPN’s Kevin Siefert and others have detailed, there are a number of sound reasons for the NFL to expand the use of instant replay to include pass interference.
Referees themselves might also react to the NFC Championship controversy, though not necessarily for football reasons. Expect their focus to be on privacy concerns. As detailed by Ben Strauss of The Washington Post and others, radio and online media have revealed that back judge Todd Prukop and side judge Gary Cavaletto, either of whom could have made the pass interference call, reside in or nearby Los Angeles. The (completely unfounded) inference is that the two must be sympathetic to the Rams.
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While NFL referees know that immediate post-game reactions tend to be emotional and should be taken with a grain of salt, a referee and his or her family may find the idea of their home address being publicly disseminated a source of concern. This is not so much a matter for the NFL to explore as it is for referees. The more referees’ personal lives become impacted by their professional acts, the more likely they’ll take steps to better ensure their families’ privacy.
Michael McCann is SI’s legal analyst. He is also Associate Dean of the University of New Hampshire School of Law and editor and co-author of The Oxford Handbook of American Sports Law and Court Justice: The Inside Story of My Battle Against the NCAA.