In 2019, my colleague Alison Rochester noted in an article that “barely a week has gone by without the new Video Assistant Referee (VAR) causing controversy and creating talking points amongst professionals, pundits, and supporters alike”.
More than two years on, the controversy surrounding VAR is greater than ever following VAR’s “incomprehensible” intervention in an English Premier League fixture between Tottenham Hotspur and Liverpool on Saturday, 30 September. Liverpool have committed to “explore the range of options available”.
We ask: what are these options and will anything change to improve VAR in the future?
The incident
After a player was sent off in the 27th minute, following VAR intervention, 10-man Liverpool scored through Luis Diaz in the 34th minute to lead Tottenham 1-0. The on-field assistant referee ruled the goal offside, resulting in a VAR check.
It was clear from the still images reviewed by the VAR and shown on live TV that Diaz was in fact onside. Fans around the world waited for referee Simon Hooper to draw the familiar air rectangle with his hands and point to the centre circle, indicating that the on-field decision had been overturned following the VAR review. Instead, Hooper raised his arm to signal offside, awarding Tottenham a free kick. Liverpool went on to lose the game 2-1 thanks to a 96th minute own goal, after having had a second player sent off following more questionable refereeing.
Pundits and the press have been deeply critical of VAR’s decision to rule out Diaz’s goal. BBC pundit Alan Shearer concluded, “we have seen some howlers but that is the biggest”. The criticism was so intense that the referees’ governing body, the Professional Game Match Officials Ltd (PGMOL), quickly apologised for the “significant human error” and took the unprecedented step of releasing audio of the discussion between the VAR team and the on-field refereeing team.
For their part, Liverpool released a statement bemoaning that VAR’s failure resulted “in sporting integrity being undermined” and they committed to “explore the range of options available”. The team’s manager, Jurgen Klopp, stated that he thought a replay was “the right thing to do”. But what exactly are Liverpool’s “range of options”? Is a replay realistic or even possible?
Possible legal challenge
The legal and governance structure of the Premier League is complex. The Premier League is a private company whose shares are wholly, equally owned by the twenty clubs competing in the league and the Football Association (FA). After each season, relegated clubs are obliged to transfer their shares to promoted clubs.
Being a shareholder means being bound by the Premier League Rules, which in turn contractually bind each shareholder-club to the rules of a range of organisations including the International Football Association Board (IFAB), who are responsible for the Laws of the Game; the FA; the Union of European Football Association (UEFA); and the Fédération Internationale de Football Association (FIFA). This structure is the starting point for Liverpool’s “range of options”.
The key questions for Liverpool are: (1) has a breach of any of these rules occurred; (2) if yes, what was the impact on Liverpool; (3) if there was a negative impact, do Liverpool have a remedy under the Premier League governance structure.
Were the rules breached?
In short, yes. It is universally accepted that Diaz did not commit the offside offence under IFAB Law 11.2 for which his goal was disallowed. IFAB Law 5.4 and the VAR protocol (incorporated into the IFAB Laws under Law 6), provide a mechanism for this error to be rectified.
The on-field assistant referee’s decision was checked by VAR pursuant to IFAB Law 5.4 and paragraph and 4 of the protocol. That check indicated a “clear and obvious error”, as the audio released by the PGMOL confirms. This should have been communicated to the referee under paragraph 4 of the VAR protocol. Instead, however, the VAR told the referee, Hooper, "Check complete, check complete. That's fine, perfect". Hooper then restarted the game.
The VAR team immediately realised their error but were unable to intervene, again due to another provision of IFAB Law 5.4, which stipulates that VAR may only intervene after play has restarted in cases of mistaken identity or certain serious red card offences. The VAR’s failure to communicate the result of the check is therefore a clear breach of paragraph 4 of the protocol, which meant the incorrect offside decision under IFAB Law 11.2 was not rectified.
This constitutes a breach by the VAR team of Premier League Rule N.4.1, under which match officials are also contractually bound by the IFAB Laws of the Game.
What was the impact on Liverpool?
This question is more difficult. It is reasonable to conclude that ruling out Diaz's goal had a major impact on the course of the game and a negative impact on Liverpool. After all, "to win you have to score one more goal than your opponent" (Johan Cruyff, Dutch football legend). However, it is impossible to say what the game's outcome would have been had VAR's error not occurred.
It is also important to consider Tottenham's position. Clearly, Tottenham benefited from the VAR error. However, they did so in good faith. It would therefore arguably be unfair if any remedy available to Liverpool had an adverse impact on Tottenham.
A refereeing error can be contrasted with cases where one of the competing teams is guilty of breaching a relevant rule, for example by fielding an ineligible player. Although there are no examples from the Premier League, the typical sporting sanction applied in other competitions is generally a points deduction or ejection from the relevant competition. Cases this year have included Welling United, who were deducted one point in the National League South, and Queen's Park, who were ejected from the Scottish Cup despite beating Inverness. A notable exception to this trend involves Liverpool themselves, who (controversially) escaped with only a fine after fielding an ineligible player in an EFL Cup win over MK Dons in 2019.
In addition to sporting consequences, there could arguably also be a financial impact on Liverpool come the end of the season, should the result of their game against Tottenham prove decisive in their finishing position in the Premier League table. Measuring the sporting and financial impact on Liverpool of VAR's error is a multi-dimensional problem which depends on making judgements about what would have happened if events had unfolded in a different way. This is clearly impossible to do with any certainty.
Potential remedies
Liability of match officials
Unfortunately for Liverpool, even if it were possible to precisely measure the impact of Diaz's goal not being given, a remedy against the match officials for their breach of the Premier League Rules would be very difficult to obtain. IFAB Law 5.2 provides that “The decisions of the referee regarding facts connected with play, including whether or not a goal is scored and the result of the match, are final”.
Furthermore, IFAB Law 5.7 is an extensive exclusion of liability for match officials. This includes liability for injury to players, officials, or spectators, and for losses suffered by clubs as a result of officiating decisions “taken under the terms of the Laws of the Game”. The quoted wording potentially opens the door to match officials being held liable to clubs in certain highly unusual circumstances, such as match fixing, where decisions may not have been "taken under the terms of the Laws of the Game".
Furthermore, IFAB Law 5.7 is subject to the Unfair Contract Terms Act 1977, which heavily restricts parties' abilities to exclude liability for negligence, particularly for personal injury and death. Rugby provides a useful parallel: in the 2003 case of Vowles v Evans ([2003] EWCA Civ 318), a referee's negligence was found to have caused a serious injury to the claimant. The Welsh Rugby Union, which employed the referee, was held to be vicariously liable.
In the present case, however, as Liverpool manager Klopp has acknowledged, the allegation is of a serious but honest mistake. There is therefore no realistic prospect of Liverpool successfully pursuing a claim against any match official for a breach of Premier League Rule N.4.1.
What about sporting remedies?
Governing bodies can of course impose sporting sanctions in certain circumstances. Some cases where these were applied were discussed above. In the Premier League, the power to issue sporting sanctions lies with a disciplinary “Commission” under Rule W. The available actions include suspension, points deductions, recommending to the Premier League board that a match be replayed, and expulsion (Rule W.51). However, they are only available against a club which is in breach of the Rules. As it is the match officials, not Tottenham, who are in breach here, there is no prospect of a sporting remedy for Liverpool.
The only sporting remedy which could actually help Liverpool as opposed to punishing Tottenham is a replay, which appears to be Jurgen Klopp's favoured approach. Unfortunately for him, no Premier League fixture has ever been replayed for any reason. The closest precedent is an FA Cup tie between Arsenal and Sheffield United on 13 February 1999, which Arsenal won 2-1 in controversial circumstances. The FA allowed a replay only because Arsenal offered one to Sheffield United. Perhaps fittingly, Arsenal won the replay by the same scoreline.
Will anything change?
Realistically, Liverpool’s best outcome is that the use of VAR in the Premier League and other competitions is reviewed and updated such that the chances of another “significant human error” taking place are minimised and the positive impact of VAR is maximised. The PGMOL has already identified three “key learnings”:
- re-emphasising “need for efficiency, but never at the expense of accuracy”;
- committing to developing a new “VAR Communication Protocol”, which we expect will be adopted into the IFAB Rules; and
- an “additional step” in the VAR check process whereby the VAR will confirm the outcome of the check with the assistant VAR before confirming to the on-field match officials. It is not clear whether this would be implemented as an amendment to the existing VAR protocol or form part of the new VAR Communication Protocol.
Undoubtedly, these are steps in the right direction. Other suggestions, inspired by less controversial VAR-equivalents in sports, such as rugby and cricket, include:
- audio of discussions between the on-field and VAR match officials being broadcast live to audiences;
- partially automating non-subjective decisions such as offside;
- introducing VAR specialists, rather than relying on normal referees; and
- introducing a window for emergency VAR intervention after the referee has restarted the game.
As the VAR controversy continues to deepen, it is increasingly important that action is taken to restore trust in match officials and the VAR system. However, no option should be regarded as a panacea: even automation does not eliminate officiating errors, as Bournemouth discovered to their detriment.
During the 2019/20 season, the Premier League’s automated goal line technology failed to notify the referee that Bournemouth had scored a goal due to the goal line cameras being “significantly occluded by the goalkeeper, defender and goalpost". Bournemouth lost the game by one goal and went on to be relegated based on goal difference. Notably, despite publicly considering legal action against the operators of the goal line technology system, no claim was ever made.
Ultimately, controversial refereeing decisions are an unavoidable part of sport. Provided decisions are reasonable, such controversy adds to sport's entertainment value. The role of VAR in the Premier League is to help improve the standard of officiating.
We can only hope that impending reforms help move the VAR system closer to that objective.