In Law and Popular Culture

I like to watch American Football. The New York Jets in particular, which is a painful experience every time. And throughout my viewing career I have had to explain myself to my friends. And family. They have called it a dumb and violent game, but also point to rugby as a truly ’manly’ game (no helmets and pads). Not having grown up with football, I am still learning about the game myself every time I watch. But I have always claimed that it is in fact a tremendously complex and smart game that requires some pretty smart players (for a most basic introduction to the game, click here). I have never dared to really discuss this with my international law colleagues for fear of being ridiculed. So I thought I would convince them the lawyer’s way. Because many American Football rules closely resemble the international laws of war. Yes, they do. Bear with me.

American Football as War

American Football is indeed a violent game and it is often advertised and promoted as a war-like game more so than other sports. Go on YouTube and you will see some incredible collisions between players. And it is so culturally engrained in American society that it is said that the tv-ratings for the sport clearly correlate with the mood of the nation and whether it is at war. But I would argue that even more so than the actual violence, it is the strategies and the tactics employed that makes football warlike. The general staff on the sidelines sets out the strategy before the game, depending on the strength and weaknesses of the opposing team. A tactic to literally gain ground is relayed to the players, the soldiers on the field before every movement or play with the ball, which is then executed.

Laws of War

American Football is like conducting 19th century warfare governed by 20th century laws of war. During much of the 1800s, armed conflict was conducted from static and visible positions on broad fields on which the opposing sides just slugged it out. There were rules to warfare even then, but only in the 20th century were laws of war extensively laid down and developed. And since the 1949 Geneva Conventions were adopted the laws of war are an integral part of warfare. As are lawyers. The conduct of war is governed by four principles: humanity, military necessity, distinction and proportionality. The latter two are derived from the first two. In short, the laws of war prohibits anything that is unnecessary to defeat the enemy, and protects those who are not engaged in combat (anymore).

Five Rules

In football as in war, the rules aim to minimize the amount of violence. To some it sounds convoluted or unrealistic, but the rules in both arenas delegitimize unnecessary violence and try to make the fight a ’fair’, and thereby an ’honorable’ fight in an eighteenth or nineteenth century way.

So here than are the five rules in American Football that resemble some rules and prohibitions in the laws of war:

  1. Hors de combat: defenseless players. A fundamental tenet in warfare is that those who are not participating in combat may not be targeted. That includes wounded soldiers as well as civilians. They are hors de combat. It is unnecessary to target them, because they do not pose a threat to your military objective. In football, players that do not have the ball may not be tackled, i.e. brought to the ground. Only when a player gets the ball does he become a combatant, and can he be brought to the ground to stop his advance. Also, when a player is down, the play is over and he may not be targeted anymore. He becomes a defenseless player. It is not necessary to target him anymore. So in both football and war, any targeting decision must be made on the basis of the necessity to achieve the objective. No one needs to suffer unnecessarily.
  2. Unlawful combatant: ineligible receiver. When a soldier is on the field, he must adhere to some rules to engage in combat lawfully. These rules are now sometimes considered quaint and unrealistic. In order to know who may be legitimately targeted, a soldier must be able to distinguish between opposing soldiers and civilians, by soldiers wearing uniforms and insignias. Of course, the nature of modern conflict is such that these distinctions are hard to make. Little did I know that football has something similar. The rules on eligible and ineligible receivers is more intricate than the legal equivalent. Apologies to the football fans if I get this wrong. First, a player must have an eligible number. The rulebook determines which numbers are eligible. Second, being eligible means that the player is allowed to catch a forward pass. And third, only the two players at the end of the line of scrimmage, and line up on the line of scrimmage are eligible to catch that forward pass. If an ineligible player catches the ball nonetheless, it is a foul. A soldier not in uniform or in any form not distinguishable from civilians is an unlawful combatant, and does not enjoy prisoner of war status once captured. There is, however, no clear agreement on what other consequences should be attached to the status of unlawful combatant. In either war or football, it must be clear who is doing the fighting. It’s an honor thing I guess.
  3. Proportionality: unnecessary roughness. Even when someone or something is a military target not everything is allowed in actually attacking it. Remember, the objective is to defeat or incapacitate the enemy, not annihilate it. An attack must be proportionate, which also means that any collateral damage, unintended damage, must be kept to an acceptable minimum. So every targeting decision must involve a ’calculation’ of possible civilian casualties, or other kinds of unintended consequences. In come the lawyers, as in the movie ’Eye in the Sky’. It seems like since the invention of American Football, the league has been trying to increase player safety in an otherwise brutal sport. Next to limiting leg injuries (especially knees), the concern in recent years have been head and neck injuries, especially concussions that may lead to brain diseases later in life. As a consequence, tackling – or working the opposing player to the ground – is heavily regimented. For instance, blows to the head and using the head are outlawed. Less violence and hitting different parts of the body can also be effective in stopping a player. That is why they call it unnecessary roughness. In short, the means used to achieve the objective must be proportionate. Again, no one needs to suffer unnecessarily.
  4. (Il)Legitimate military target: roughing the passer. The laws of war are relatively clear as to what constitute legitimate military targets and what targets do not, like hospitals, places of religious worship, purely civilian targets. In practice things are not so clear of course. Soldiers may hide in such places, even attacking from them, making it hard for the other side to decide whether to target them or not. So it becomes a matter of judgement whether to target a civilian facility or not. Not really a place of worship, but a quarterback in football is a pivotal figure. He is the leader of the offense, starting the play, sometimes determining the tactic, throwing the ball to the (eligible) receivers or handing it off to running-backs. The quarterback also enjoys somewhat of a protected status. A ’roughing the passer’ foul may be called if the quarterback is tackled after he has thrown the ball. He can’t be hit if he ’gives himself up’ by voluntarily going to the ground. A similar foul will also be called when the player who punts (kicks) the ball is hit after having punted the ball forward. The analogy may be somewhat tenuous, but both bodies of law contain protected objects that may only be targeted under restricted circumstances.
  5. Prohibited weapons: Chopblocks, clipping and face-mask. Related to all the core principles of war is the catalog of weapons that are prohibited in armed conflict. Chemical- and biological weapons, exploding bullets and such are prohibited under different treaties and customary international law. These weapons cannot make a distinction between civilians and combatants and/or cause unnecessary suffering. A normal bullet will stop a soldier. It is unnecessary for the bullet to explode inside the victim. Similar considerations could be valid for nuclear weapons, but in a notorious World Court opinion, the Court could not find a similar prohibition for nukes. In football, dangers ways of bringing an opponent down are also outlawed. These are also prohibited ’weapons’. Clipping is a tackle, from behind and below the waist, unless it is a runner with the ball. A chop block is a block by a offense player against a defender at the thigh or lower, while another offensive player is trying to block the defender. Such a block usually causes the defender to fall over. All off these types of ’weapons’ have the risk of seriously injury and are therefore prohibited.

The rule development in football has gone so far that it takes quite an operation to keep track of rule transgressions. But umpire decisions on fouls cannot be reviewed and overturned as other decisions can. In general, the rules and rule enforcement are akin to a complete legal system in its scope and depth. Plays are reviewed, analyzed and litigated like lawyers analyze facts and rules in court. Interpretation is a thing, also in football. Any set of rules of any game can be seen as a self-contained legal system, but football is in a league of its own when it comes to its lawyerly quality.

For you football fans out there: what did I get wrong here? And/or for all you lawyers: have you ever looked at sports like this? Let me know in the comments below, or through Facebook or Twitter

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