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A Right to be Punished?

[Cross-posted from Concurring Opinions]

From the Department of Paradoxes in Sporting Jurisprudence:

Last Saturday night, at the end of the NBA playoff basketball game between the Dallas Mavericks and the Denver Nuggets, Antoine Wright of the Mavericks broke the rules. He intentionally collided with Carmelo Anthony of the Nuggets, who had possession of the basketball, in a play that ordinarily would produce a whistle from the officiating crew and a stoppage in play. That was Wright’s objective. At the instruction of the Mavericks’ coach, he wanted to be called for a foul, so that play would be stopped and the Mavs would have a chance to regroup and capture the ball. (The Mavs had a foul to give at the time, which means that the victim, Anthony, would not have been entitled to shoot foul shots. Instead, the Mavs would have in-bounded the ball.)

As basketball fans know, the officiating crew did not whistle Wright for the foul. Anthony continued onward, shot the ball, and scored the winning basket for Denver.

After the game, the Mavericks were furious that the referees had not called Wright for the intentional foul, and the NBA officially confirmed that the crew on the court had erred.

That prompts this question: Is there a right to be punished? If so, when, and if so, why?

Even casual basketball fans know that the final minute or two of many basketball games is a choreographed ballet of intentional fouls and foul shots. Players, coaches, fans, and referees have come to expect them. It’s part of the game, like Michael Jordan’s tongue or LeBron James’s talcum powder. In a way, Wright and the Mavericks played by the rules, and they were justifiably upset when the referees didn’t.

In a different, formal way, of course, Wright and the Mavs weren’t playing by the rules at all. Viewed from a third-party perspective (perhaps from the referees’ perspective), Wright’s disappointment and the Maverick’ outrage seem out of place. Wright broke the rule. Having broken the rule, it seems to me that neither he nor the team has any legitimate expectation regarding the form of his punishment. Why, in other words, should the wrongdoers benefit by stopping the clock) and the victims suffer when the rules are broken? This seems to be the perfect case for the maxim “No harm, no foul.” Wright fouled Anthony but didn’t cause Anthony or the Nuggets any harm. Why reward Wright?

It’s easy to imagine a scenario in which where Anthony and the Nuggets might have a stronger case, even granting the possibility that Anthony might still have made that final shot. If Wright had fouled Anthony recklessly or with an intent to injure Anthony, that is, if Wright acted with a different sort of mens rea, then Wright might have been liable for a flagrant foul (with some interesting jurisprudential twists of its own), and protecting the health or safety of Anthony and similarly situated players, by calling the foul, might well take precedence over the game’s competitive flow. But this grants Anthony a stronger case for punishment, not Wright; we don’t want to encourage Wright to injure Anthony in order to obtain his team’s reward. The punishment in this scenario might be adjusted upward to an extent that it deters the strategic use of flagrant fouls, or it might be deferred until after play has concluded.

I pause here to note Wright’s interest in punishment, which in Kantian or Hegelian terms might flow from Wright’s own status as an autonomous agent.  (I’m answering my (rhetorical) question with assistance from an interesting article by Markus Dubber, The Right to Be Punished: Autonomy and its Demise in Modern Penal Thought, 16 Law & History Rev. 113 (1998). ) It might be said that whether Wright’s foul was flagrant or merely intentional, his claim for punishment is grounded in his claim to status as an autonomous moral agent, intending to bring on himself the full consequences of his actions.  That logic falls apart, I think, on the ground that in context Wright is no autonomous moral actor; he is an agent, or an instrument, of his coach or of the team, or both.  Wright didn’t choose to foul; he was told to foul. 

The more challenging question, it seems to me, is how basketball society should enforce its collective expectations regarding the tactical use of wrongdoing. A sporting event between two teams is a kind of competitive commons.  Only one team can win the game (usually, and almost always in basketball), but both teams have kind of shared duty to perpetuate the sport.  That involves both playing by formal rules and playing by the informal rules, or the collective expectations of the relevant sporting community. “Ordinary” fouling in basketball is a weird way of giving back to the game.  *Tactical* fouling, on the other hand, might be said to do a kind of violence to the particular competition, but it might be part of the scheme of the sport.  Does Wright’s wrong make a right?

Personally, I don’t think so, but I’d be interested in hearing from folks who can think of both analogous and distinguishable situations in other contexts. My instincts here are informed by my deeper experience with soccer, where officiating practices are quite different. As I understand the matter, officiating in basketball, like officiating in football, is supposed to be judgment-free:  If the rule is broken, the referee is supposed to call a foul. Everyone knows that basketball and football officials really do exercise discretion, but that discretion isn’t part of the rules or the ethos of the sport. In fact, if the officials in the Mavs/Nuggets game exercised discretion by observing Wright’s intentional foul yet deciding not to call it (cf. the current NHL playoffs), then they may have broken their own rules.

Contrast this with officiating in soccer, which has no “rules.” Soccer has laws, and it is understood by the soccer community that the center referee typically has broad discretion in interpreting and applying those the laws, especially when it comes to penalizing serious infractions with cautions and ejections and when it comes to deciding whether a violation of the laws is serious enough to warrant a penalty kick. In those cases, a penalty is not merely awarded, but earned. Soccer referees have discretion to delay calling a foul or to defer it altogether, if the victimized team retains possession of the ball and an attacking advantage.  Soccer players dispense their own justice, as when one team voluntarily relinquishes the ball to the other after the ball has been deliberately been put out of play in order to enable an injured player to be treated.  The team that stops play is entitled to the return of the ball – by universal custom, not by law or order of the referee.

Soccer and basketball are, in other words, different sorts of sporting commons. Soccer seems to be governed by equity, and basketball seems to be governed by law. My critique of the NBA’s post-game reversal of Wright’s  intentional foul non-call involves applying equitable maxims to a legal case (“One who seeks equity must do equity”; “One who comes into equity must come with clean hands”; “Equity will not allow a statute to be used as a cloak for fraud”). It’s plausible to object that the civil procedure of sports hasn’t merged the two.  One wonders, however, which model is better suited to adapting a single sport across a multiplicity of cultures.