VAR Review

Human Error in Sports

June 27, 2010. World Cup, hosted by South Africa. The match: the Round of 16 between the national teams of England and Germany. 

As always, two favorites to advance in the world's most important sports tournament. This time, they're facing off against each other. 

Germany didn't take long to take the lead, with a clear 2–0 advantage in the first 32 minutes of play. However, England was pressing the Bavarian team so hard that they pulled one back in the 37th minute. The score was 2–1, with the first half drawing to a close, when one of the biggest refereeing errors in soccer history occurred. The talented Frankie Lampard took a volley that hit the German goalkeeper’s crossbar and then completely crossed the goal line. Despite this, Uruguayan Jorge Larrionda, the match referee, decided not to award the goal.

The match ultimately ended 4–1 in favor of the German team. England was eliminated due to an injustice.

Mistakes like these have occurred countless times throughout the history of sports. Some may have been due to external influences, while others—perhaps the majority—were simply the result of human error. 

After this incident (and others), FIFA finally decided to implement what is now known as VAR (Video Assistant Referee) at the 2018 World Cup in Russia, which reduced human error through the use of technology to review “controversial” plays. 

Without passing judgment, the system—far from being perfect and not immune to criticism regarding its use—helped prevent countless new errors that had occurred in the past.

Human Error in the Justice System 

The world of law—understood as the set of rules governing life in society—has provided some solutions to conflicts between people. One of these is the role of the judge. The judge applies general rules to a specific case, and the State is then responsible for enforcing the judge’s ruling.

Just as in soccer games, where the referee’s role as the “judge” responsible for enforcing the rules of the sport is paramount, in legal disputes the judge’s role is indispensable for reaching a resolution in accordance with the applicable laws.

But what makes us think that judges have infallible reasoning when it comes to the issues they must adjudicate?

Humans, by definition, are beings capable of reasoning and learning, but they have biological limitations that make them imperfect. These imperfections—now scientifically proven and categorized by fields such as economics, psychology, sociology, and others—have an enormous impact on the role of the judge. The role of judges, even with the best intentions and the highest moral standards, is fraught with errors—in interpretation, judgment, reasoning, and knowledge, among others. 

In our legal system, perhaps the most common mistake judges make is a lack of knowledge. This is not due to a lack of legal training (which also occurs), but rather to the wide range of fields on which they must rule. The law, which cuts across all aspects of human life, encompasses a vast array of specializations: commercial law, insurance law, family law, corporate law, contract law, and so on. 

The government has made an effort to “categorize” judges based on the subject matter of the case to be tried.

However, these efforts have been insufficient. Under our legal system, a judge must be an expert in both probate matters and corporate law. Everyone in the profession knows that this is, in practical terms, impossible. This situation results in countless judicial errors that affect the lives of thousands of people every day, who are unjustly convicted or acquitted—all because of human error. However, over time, the legal system has proposed other solutions to social conflicts: arbitration. Arbitration offers a solution to legal disputes that arises from the will of the parties, who voluntarily submit to the judgment of an arbitrator, who is responsible for resolving any conflict that arises between them. 

But what makes us think that referees have an unambiguous way of reasoning when faced with the issues they must adjudicate?

Of course, referees are human, too. And as such, just like judges, they make errors in judgment. But the—essential—difference is that referees make fewer errors than judges. Just as with the implementation of VAR in soccer, the use of arbitration helps reduce human error in the resolution of legal disputes.

Let's see how things work with arbitration, as opposed to state courts.

Reducing Human Error

Arbitration, with its distinctive characteristics and features, combined with the economic tools applied to the law, makes it possible to identify a more efficient method of conflict resolution, based on the following considerations:

On the one hand, the economics of legal proceedings examines their economic objective: reducing costs—both administrative and litigation costs—for the parties. Proceedings will be more efficient as costs are lowered. In arbitration, both administrative costs and the costs of judicial errors are lower than in the state court system. Although administrative costs in the ordinary court system are, in principle, lower due to state subsidies (which actually come from tax payments), in the long run, the price paid by users results in a high rate of judicial backlogs, excessive workload, and corruption among public officials. Users benefit from low court fees, but society suffers from the poor functioning of the justice system. In arbitration, the price paid directly contributes to a more efficient allocation of resources for the proper functioning of the justice system. As for the costs of judicial errors, since arbitrators are professionals specialized in the subject matter to be adjudicated, this results in lower costs associated with judicial errors. Indeed, arbitrators are hired for their expertise and knowledge in the subject matter of the dispute. In ordinary courts, cases are adjudicated by judges who may not specialize in the subject matter of the dispute. Cases are assigned through a random selection system, which increases the likelihood of judicial errors.

On the other hand, the private system of hiring arbitrators to resolve disputes creates a “market for judges,” which makes the system predictable. What happens is that arbitrators tend to rule similarly in analogous cases brought before them, because being more predictable will make litigants want to hire them again. The more expert and predictable they are, the better a “product” they will be for litigants to hire. Thus, arbitrators have real incentives to adjudicate cases correctly. This does not occur in the state court system, since incentives operate differently there. Judges have few incentives to do a good job, since this does not directly influence the financial compensation they receive for their work. The incentive mechanism for arbitrators ultimately fosters legal certainty in society. The more predictable judicial rulings are, the fewer disputes there will be, and the greater the conviction and respect for legal norms on the part of individuals. Additionally, the predictability of judicial decisions reduces transaction costs between the parties when entering into contracts, since, knowing the trend in case law, it will not be necessary to delve into the details of the contract.

Of course, this method of dispute resolution is not perfect. However, although imperfect, this system allows for a significant reduction in human error in the adjudication of disputes. This reduction in costs stems from the institution’s structural design, which arises from the will of the parties. But above all, like VAR, it is driven by the search for a more efficient and fairer solution to our day-to-day disputes and conflicts.