ariel's paper

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Ariel Juarez

Word Count: 8,243

Discretion in Law and Sports: De Minimis & Arriving at the Just Outcome

I. Introduction

What is a ³just´ outcome? That which is ³just´ or ³fair´ to me may not be to someone else.1

Our personal experiences shape our world and create the subjective viewpoints 2 that we carry

and that can lead to conflict with others. But some of these conflicts are trivial in that they do not

extend beyond the personal; they pertain to an issue that does not affect the rights or interests of

society. 3 For example, it seems unlikely or unreasonable to expect that a high school student

who had their grade point average reduced as a penalty for an unexcused absence to file an

action for damages alleging the penalty violated her rights under the Fifth and Fourteenth

Amendments, and that such a claim would be adjudicated.4 This is an issue that would be, to

1The terms just, fair or right as used here are defined as the most reasonable answer to a dispute or

resolution of a dispute that can be achieved in spite of our subjective limitations; the highest consensus we can

achieve at any given moment thereby minimizing to the extent possible the number of people who feel the

resolution is unreasonable. This does not suggest that the most reasonable answer cannot also be the right answer

(in fact).2

Subjective is defined as: of, affected by, or produced by the mind or a particular state of mind; of or

resulting from the feelings or temperament of the subject, or person thinking.

http://www.yourdictionary.com/subjectivity

I would add to this definition, for the purposes of this paper, that the state of mind is shaped by our experiences,

accumulated knowledge, perceptions, and observations I assert differ for us all and are confined to our l imits, as

human beings, of understanding the universe we inhabit.3

References throughout this paper to society, majority of people or fans imply that the individuals

within that group fit the reasonable person standard outlined in note 5, infra.4

In fact, the court did not adjudicate the case and dismissed it. See Raymon v. Alvord Independent School

District , 639 F.2d 257 (5th

Cir. 1981).



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society, too inconsequential or trivial5 to warrant judicial scrutiny as it is not the type of action

those laws are meant to address.

The cost of applying judicial resources to resolving this issue, at the expense of a more

serious case, seems to outweigh the benefit to the individual student who had their grade point

average reduced. I am certain the matter did not seem trivial to this student or her parents, but a

majority of reasonable people6 would agree the issue is trivial in comparison to say a Fourteenth

Amendment claim brought by the same student if she had been denied access to a public school

because she is a woman. The last hypothetical is precisely the type of claim that could affect the

rights of a large population of our society and one that we would expect our judges to consider.

When a judge dismisses a case like the actual one brought by the student so that they can

devote their attention to one like that given in the hypothetical, they are applying the de minimis

doctrine. De minimis is defined as being ³trifling or minimal´ or ³a thing so insignificant that a

court may overlook it in deciding an issue or case.´7 The merits of preserving judicial resources

(time, money, mental faculties) for issues of greater importance to a greater number of people,

and use of de minimis doctrine to accomplish this, is not in dispute here. My aim is to determine

5Trivial is defined as: of only small value or importance. Oxford American Dictionary: Heald Colleges

Edition, p.988. Oxford University Press, Inc., 1980.

I use the term here to illustrate an action, dispute, question, etc., that a vast majority of reasonable people can

agree is not important.6

Reasonable person is defined as: a hypothetical person who exercises qualities of attention and judgment

that society requires of its members for the protection of their own interest and the interests of others.

http://en.mimi.hu/law/reasonable_person.html. I illustrate what I have in mind for the term with a simple

example:

A person confronted with a spoon and who can observe it, touch it and use it, and thus should be

able to say it is a spoon, and yet refuses to acknowledge it as such, is not a reasonable person for the

purposes of this paper. Along those lines, I define a reasonable sports fan (fan) as one who would

be willing to acknowledge situation in which an official made an objectively wrong call, or perhaps

should not have made a particular call, even if admitting such would contradict their interest(s) in

who wins the game.7

Blacks Law Dictionary. Second Pocket Edition. Bryan A. Garner Editor in Chief. West Group, St. Paul MN,

2001.



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how de minimis, through its functions, can inform the more difficult task of deciding what

judgments are right in the world of law and sports.

The thesis of this paper is that de minimis can give inherently subjective judgments (those

subject to judicial discretion) objective legitimacy by informing society¶s collective observations

of what issues are trivial and which judgments are reasonable. As a result of this greater

understanding of what is trivial, de minimis can give us a greater sense as to what judgments are

³right´ while minimizing the number of parties who would disagree with those judgments.

The difficulty in attempting to determine the right answer to what is a matter of subjective

consideration is difficult. But in examining the law or rules, it is reasonable to think that a law or

rule exists in a black and white way in that a certain action involving that rule either violates it or

it does not; the right answer is out there. The conflict occurs when it comes to the facts or

circumstances surrounding the action that may call into question whether the rule was actually

violated, which thus hinders are ability to get to that right answer. For example, if a house burns

to the ground it either did so by someone¶s intent or by accident. If it was intentional, the law

prohibiting arson8 has been violated.

The subjectivity or human limitations of the relevant actors in the arson question are

immediately called into play when the investigation begins as to whether the fire was intentional.

Presumably, arson investigators have a set of factors or a formula to help determine whether a

fire was intentionally started or not, but it is unlikely all agree with those factors or would apply

them in this case or are even equally competent to do so. Furthermore, if it was an accident,

8Arson is defined as: the act of setting fire to a house or other property intentionally and unlawfully, either

from malice or to claim insurance money. Oxford American Dictionary: Heald Colleges Edition, p. 44. Oxford

University Press, Inc., 1980.



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maybe the owner thinks the fire was started by a neighborhood enemy who has it out for him and

no evidence could convince him otherwise.

The point is simply this: There is an objective answer to whether or not the house burning

down was the result of arson; the issue is we may never be able to prove that answer because of

our own limitations (in observing or collecting evidence for example) or because convincing

everyone may not be possible (owner of the house may feel cheated no matter what). Thus, the

most we can hope for is determining the most reasonable answer while minimizing the expense

to those who disagree with that answer. Through the law, we gain a better understanding of how

laws are meant to operate, what actions are covered by those laws, and with the aid of de

minimis, when violations of the law are of too little consequence and do not implicate concerns

the law was meant to address.

For these same reasons, de minimis should be applied in sports to a greater degree than it

may already be because strict rule application is more likely to lead to cases of intervention on

trivial matters, which in turn leads to a greater sense of injustice by a greater amount of people.

Furthermore, strict rule application can run in direct opposition to the best interests of the

individual game being played and to the best interests of the sport, as well. Note, too, that an

official missing a call is not the same as an official applying de minimis. In the former, the

official may not have been able to see the play and make the call, or he may have made the

wrong9 call. A de minimis application would occur when an official observes a technical or

potential rule violation but chooses not to enforce the rule because the violation is seen as trivial

or difficult to ascertain.

9This would be a call that is indisputably wrong, such as a basketball player being awarded three points for

a made jump shot even though he was clearly within the three-point line. In other words, the factual evidence

cannot be disputed no matter the subjective interests of the observing parties.



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The theoretical aspects of the de minimis discussion expounded above will be explored in

more detail later in this paper. But first, I will provide a more in-depth discussion of de minimis

to include the factors most typically taken into account when deciding whether to apply the

doctrine. I will then provide examples of de minimis being applied in law and in sports, before

expanding my theory on de minimis and why it ultimately better serves the interests of

minimizing unfair results and better understanding what constitutes a just outcome, even if in

theory it may be difficult to agree on circumstances that would warrant de minimis application.

II. De Minimis In-Depth

As previously mentioned, de minimis is defined as something that is trifling or minimal,10

and it is derived from the Latin phrase ³de minimis non curat lex´, which translates to ³the law

does not concern itself with trifles.´11 The basic meaning of the phrase boils down to this: some

actions do not warrant judicial scrutiny.

The earliest applications of the de minimis doctrine date back to the fifteenth century,

although there are earlier recorded instances of its application in fact but not in name.12 The

English Chancellors are credited with contributing to the development of the de minimis doctrine

as they were given the duty by the King of dispensing with petitions from the public, which

became voluminous.13

This Chancery Court then developed a set of maxims to help shape its

10Blacks Law Dictionary. Second Pocket Edition. Bryan A. Garner Editor in Chief. West Group, St. Paul MN,

2001.11

Id. 12

Andrew Inesi, A Theory of De Minimis and A Proposal For Its Application in Copyright , 21 Berkeley Tech.

L.J. 945, 948 (2006).13

Jeff Nemerofsky, What is a Trifle Anyway? , 37 Gonz. L. Rev. 315, 318-19 (2001).



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decision making in resolving royal disputes, with perhaps its best known maxim of equity being

³de minimis non curat lex.´14

De minimis functions to place ³outside the scope of legal relief the sorts of intangible

injuries, normally small and invariably difficult to measure, that must be accepted as the price of

living in society.´15 Further, de minimis ³signifies µthat mere trifles and technicalities must yield

to practical common sense and substantial justice¶ so as µto prevent expensive and mischievous

litigation, which can result in no real benefit to complainant, but which may occasion delay and

injury to other suitors¶´.16 Courts have applied de minimis to a wide array of legal disputes,

µincluding contract, tort, civil and criminal matters.¶17

A question to consider is why a trivial case would ever come before a judge. In his proposal

for de minimis use in copyright law, Andrew Inesi gives three possible reasons in response to

this question. The first reason is that a person bringing a claim may have a different conception

of harm than does the state.18 Secondly, he posits that the costs incurred by the prospective

plaintiff are never equal to the total costs of adjudication.19

He qualifies this by stating that a

cause may be worthwhile from an individual perspective but not so from a social perspective.20

Finally, Inesi argues that plaintiffs may act irrationally or may not be adequately informed.21

As to the question of how a trivial matter ever necessitates judicial involvement, Inesi¶s

reasons generally speak to perhaps that fundamental issue with de minimis already named: the

14 Id. at 322-323.

15 Id. at 323.

16 Id. at 323-24.

17 Id. at 324.

18Inesi at 956.

19 Id.

20 Id.

21 Id.



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subjectivities of the actors involved. This is particularly acute in sports because the subjectivity

of the relative actors (players, coaches and officials) is not limited to those on the playing field,

but extends to those who watch the games as well. In other words, the fans are analogous to

³society´ as used in Inesi¶s analysis, only the fans have direct access where we as a society do

not typically experience firsthand or even notice when de minimis is applied in law.

It is when de minimis is not applied in a case we deem to be trivial that our sense of fairness

is offended. The difficulty is determining an agreeable set of circumstances in which de minimis

is appropriate. And because as fans we bring our own preferences for a team or how a game

should be officiated to our observations (which too, can be limited), it makes it difficult to reach

a consensus on proper de minimis application without some observers feeling uncomfortable

with the discretion given to officials in applying de minimis and the ³unfairness´ that could

result.

a. De Minimis in Practice

Some states have explicit provisions in their statutes for applying de minimis. Pennsylvania,

Hawaii and New Jersey all contain statutory provisions pertaining to de minimis whose language

is almost identical in each state, and read as follows:

Section 2C:2-11. De minimis infractions

The assignment judge may dismiss a prosecution if, having regard to the nature of the conduct

charged to constitute an offense and the nature of the attendant circumstances, it finds that the

defendant¶s conduct:

(a) Was within a customary license or tolerance, neither expressly negated by the person whose

interest was infringed nor inconsistent with the purpose of the law defining the offense;



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(b) Did not actually cause or threaten the harm or evil sought to be prevented by the law defining

the offense or did so only to an extent too trivial to warrant the condemnation of

conviction«22

In the New Jersey case of S tate v. Smith23, the defendant was charged with shoplifting three

pieces of bubble gum valued at $.15 from a convenience store and the defendant moved for

dismissal based upon the de minimis doctrine. In dismissing the case, the court noted that ³in the

milieu of bubble gum pilferage the only cases more trivial were those involving two pieces or

one´.24 The convenience store owner may have disagreed as to the triviality of the issue, but

most would have no problem with the result. But had the court ruled against the defendant, it

probably would have offended most people¶s sense of justice had they knowledge of the ruling.25

In People v. Feld man26, police charged the defendant with littering for dropping two matches

used to light a cigarette on the sidewalk, but the case was dismissed because the court deemed

the matter too trifling to warrant judicial condemnation.27 In another littering case, a man was

charged with littering after an officer observed him picking up a can from a fishing dock,

shaking it, and throwing it back onto the rocks.28 The case was dismissed based on the same

rationale given in the Feldman case.29

Arguably, littering is not actually a trivial matter, and I¶m

sure environmentalists would strongly agree, but as a society it would seem these instances of

littering fall on the lower end of the scale of what type of actions warrant arrest or prosecution.

22 Nemerofsky at 328-329, citing to N.J. Stat. Ann. 2C:2-11 (West 1995).23

Id. at 327, citing to 480 A.2d 236, 237 (N.J. Super. Ct. Law Div. 1984).24

Id. 25

It is reasonable to imagine the following headline on an internet news site: Man found guilty of

shoplifting ordered to pay back $.15.26

Nemerofsky at 328, citing to 342 N.Y.S.2d 956 (N.Y. Crim. Ct. 1973).27

Id. 28

Id., citing to State v. McCann, 354 N.W.2d 202 (S.D. 1984).29

Id. at 203: the [present] charge is based on acts to trifling to warrant judicial condemnation.



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Again, we accept that a small segment of the population is unhappy with the result so that a

larger segment¶s sense of fairness is not violated.

The Model Penal Code also contains a de minimis provision mirroring the New Jersey statute

above, but includes a provision stating that de minimis can be applied if the defendant¶s conduct

³presents such other extenuations that it cannot reasonably be regarded as envisaged by the

legislature in forbidding the offense.´30 In criminal matters, courts tend to resist applying de

minimis generally, and even where financial harm is minimal. Where a defendant punched and

robbed a ten-year-old boy of $0.35, the court did not dismiss on de minimis grounds reasoning

that though ³thirty-five cents may seem a trifling amount to support a robbery conviction«the

economic success of criminal activity is not the sole criterion of its criminality.´31 Compare this

result to S tate v. Smith, supra.

b. Factors in Applying De Minimis

As de minimis is applied in so many areas of law, it is difficult to dissect the ³formula´ for

applying de minimis because there really is no such formula as ³[c]ourts have relied upon a

number of different justifications for their de minimis decisions´, and those justifications are not

applied in all cases.32 And because de minimis cases by definition involve trivial matters, the

relevant claims are often dismissed without a judge giving his reasoning.33

It is this difficulty in

30Criminal Law and Its Processes: Cases and Materials, 7

thEd., p. 1047-48, Kadish and Schulhofer, Aspen

Publishers, 2001, citing to Modal Penal Code Official Draft, Sec. 2.12, 1962.31

Nemerofsky at 334-335, citing to Commonwealth v. Moses, 504 A.2d 330, 331-32 (Pa. Super. Ct. 1986).32

Inesi, supra note 17, at 949.33

Id. at 950.



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ascertaining the essence of de minimis through scholarship and case law that has led one court to

call de minimis ³an exercise of judicial power, and nothing else.´34

Despite there not being a formula on the books for when it is appropriate to apply de

minimis, there exists generally accepted policy reasons for applying the maxim, which are to

preserve judicial resources and prevent the system from getting bogged down by inconsequential

matters.35 There is also a ³common theoretical thread to de minimis jurisprudence´36 that begins

with the factors most commonly used by courts in applying the doctrine. Those factors are: the

size and type of the harm, the cost of adjudication, the purpose of the rule or statute in question,

the effect of adjudication on the rights of third parties, and the intent of the infringer.37

In fleshing out these five factors, an analysis of how the factors can be applied to a rule in

sport may be useful. Basketball is a sport that is difficult to officiate and requires its officials to

exercise discretion throughout a given contest. But to help illustrate the five factors in action, the

rule against leaving-the-bench in the NBA, which is a strictly applied rule, will be used. The rule

is meant to protect against fights on the court by preventing bench players from ³storming the

court´ to fight. The rule reads:

During an altercation, all players not participating in the game must remain in the immediate

vicinity of their bench. Violators will be suspended, without pay, for a minimum of one game

and fined up to $35,000. The suspensions will commence prior to the start of their next game.

A team must have a minimum of eight players dressed and ready to play in every game. If

five or more players leave the bench, the players will serve their suspensions alphabetically,

according to the first letters of their last name«

34 Id.

35Nemerofsky, supra note 18, at 324.

36 Id.

37Inesi , supra note 17, at 951.



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A recent and controversial application of this rule occurred in the 2007 NBA playoff

series between the Phoenix Suns and San Antonio Spurs. In game four of that series,

Robert Horry of the Spurs committed a hard foul on Steve Nash of the Suns that sent the

latter hard into the scorer¶s table and onto the ground. Two Suns players, Amare

Stoudamire and Boris Diaw, ³left their bench´ and moved towards the site of the foul,

thus violating the rule and incurring one-game suspensions each as a result. 38 The

suspension led to immediate debate over the fairness of the result and while most agreed

the league was right to enforce the rule, the same also agreed that actually doing so in this

case was unwarranted.

39

The discussion that follows should help to illustrate why

enforcing the rule in this instance was not just.

i. The Size and Type of the Harm

The first question a court considers before applying de minimis is the size of the harm

inflicted as a result of the rule violation. This factor is typically applied in terms of the small

amount of damages that would be awarded thus necessitating courts to dismiss the claim.

However, a small amount in damages alone does not guarantee de minimis application, nor has

there been a fixed amount determined above which no de minimis application will apply.40

A phrase in our lexicon that captures the essence of this idea is that of ³no harm, no foul´.

Basketball is a good example of a sport that brings this idea most to mind in that with the amount

of action and contact within a game, officials often have to apply this doctrine in choosing not to

call certain fouls or enforce certain rules. Using our leaving-the-bench rule as a more specific

38 http://sports.espn.go.com/nba/playoffs2007/news/story?id=2871615.

39See http://sports.espn.go.com/nba/playoffs2007/news/story?id=2872149,

http://sports.espn.go.com/espn/page2/story?page=simmons/070516 for just a few expert takes on the

suspension.40

Inesi, supra note 17, at 951-52.



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example, because Stoudamire and Diaw leaving the bench did not in any way escalate the

potential for violence in the situation nor cause any harm in itself, it seems penalizing them and

their team is unfair, even if their actions did violate the letter of the rule. The harmful conduct

on the play was perpetrated by a Spurs player (Horry, who was suspended for two games) and

not Stoudamire or Diaw.

ii. The Cost of Adjudication

Often the cost in adjudicating a claim is too high for a court to justify doing so and as such,

the claim is dismissed in the name of judicial economy. The broad view of this notion is that

courts can include costs directly incurred by the court and the opportunity costs of taking up a

court¶s time.41

This factor is closely intertwined with the first as only when the cost of

adjudication outweighs the harm incurred by some rule violation is de minimis justified.42

The decision not to enforce the leaving-the-bench rule reflects the kind of cost-benefit

analysis undertaken in this second factor. The decision not to enforce the rule strictly amounts to

an acceptance that to do so would create too high cost to the offending party¶s team for the

minimal harm that occurred. Again, the actions of Diaw and Stoudamire caused no harm and

though the benefit of the rule (preventing brawls) is a good one, under the circumstances the cost

imposed on the Suns in this situation was too high: the suspension of two of its starting five for a

pivotal game in their season for simply walking towards a fallen teammate after a hard foul was

committed against that teammate.

41Inesi, supra note 17, at 953.

42 Id.



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iii. The Purpose of the Rule

The third factor courts consider is whether penalizing some violation of the law would

materially frustrate the purpose of that law. The factor is often framed in terms of what would

result from failing to apply de minimis. If strict application of a right or law would yield

especially ³stark´ results that are difficult, if not impossible, to justify, a de minimis ruling is

more likely.43

The purpose of the leaving-the-bench rule is to prevent the escalation of on the court

altercations and fights between players. While a completely justifiable purpose, it was not

served with the suspensions of the two Suns players. They did not ³get in the face´ of any Spurs

players nor throw any punches or the like. Their leaving the vicinity of the beach was so minor

that had they not been suspended, it is unlikely that any fuss would have been made about it.

Contrast that with the debate that occurred following the suspension and it becomes clear what is

meant when courts frame the issue in terms of rule application creating ³stark´ results that are

³difficult to justify.´

iv. Effect on the Rights of Third Parties

When courts consider the rights of third parties, adjudicating the matter in question is likely

to take place where doing so would have a significant effect on those rights. And if there will be

significant effects on third party rights, a case can be adjudicated even if damage would be

minimal for only the individual bringing the claim. This factor is applied most commonly in

constitutional law cases or cases involving statutory interpretation.44

43Inesi, supra note 17, at 953-54.

44 Id. at 954.



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Enforcing the leaving-the-bench rule against the Suns players probably did not affect the

rights of other players to leave the bench under similar circumstances. For one, players are not

allowed to leave their bench and all are supposed to be aware of that rule against it. More

importantly, not enforcing the rule in this instance would not have given other NBA players the

right to violate the rule in the future because the violation in this instance was trivial, harmless,

and did not involve intent on the part of the Suns players to violate the purpose of the rule. This

provides an apt segue to the final factor commonly considered when applying de minimis.

v. Intent of Wrongdoer

Finally, courts will consider the intent of the alleged wrongdoer before applying de minimis.

There tends to be a general moral principle dictating that intentional harmful conduct should not

be condoned and does not merit de minimis treatment. But not all conduct considered trivial

should become nontrivial if intentional and thus courts consider intent as one of the factors to be

considered. Though there may be a moral principle underlying the factor of intent, courts rely on

the utilitarian concern of having more legal violations in justifying not applying de minimis in

most cases of intentional wrongdoing.45

Concluding with the leaving-the-bench example, players know that leaving the bench during

an on-court altercation will lead to an automatic suspension.46

However, the rule makes no

mention of whether a player must intend to leave the bench for any purpose relating to the

altercation before the rule has been violated. What is clear from the instance discussed

45 Id. at 955-56.

46See http://sports.espn.go.com/nba/news/story?id=2872926, where NBA Commissioner David Stern

defends the suspensions and calls the rule a red-letter rule. Stern asserts that the rule must be enforced strictly

(in fact, not in name) and the league had no choice but to issue the suspensions, but as pointed out here

(http://armchairgm.wikia.com/David_Stern_Is_A_Hypocrite), he had no problem exercising discretion when it

came to the NBAs rules prohibiting gambling by its officials.



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throughout this section is that the Suns players did not harbor any violent intentions in leaving

their bench and seemed to only act naturally upon seeing their point-guard shoved to the ground.

If the NBA¶s intent in creating this rule was to punish all instances of leaving the bench, no

matter how trivial, than that purpose was well served by the suspensions. But if the intent of the

NBA¶s rule is to prevent fighting between players, the suspensions were not justified.

III. De Minimis Examples in Sports

Unlike the statutory examples provided in Section II (a), supra, there are no explicit

authorizations in the rules of major American sports47 that allow officials to dismiss a technical

rule violation because it is trivial. However, in both the NHL and NBA, ³situational

officiating´48

is widely acknowledged to occur at the end of games or in overtime, whereby

officials make less calls so as to avoid factoring in on the outcome of the contest. Leaving aside

the merits of situational officiating and the question as to whether it is the same as de minimis

(for the moment), another example of when de minimis was not observed in the world of sports

is in order.

In a second round game of the 2009 NCAA Men¶s basketball tournament, Duke and Texas

played a very close game that ended with Duke winning by a final score of 74-69.49 In the sake

of full disclosure, I am an alumnus of the University of Texas and thus had an ³interest´ in the

outcome of that game extending beyond my tournament brackets. That said, in a crucial moment

in the game, a foul call was made against a Texas player that I perceived to be an improper

47The NCAA College Football rulebook, the NFL rulebook, and the NBA rules were reviewed. I was prompted

to look by an assertion that such a rule existed in the NBA rulebook, but I have yet to find it.48

As it is called in the blogosphere; for views against situational officiating, see

http://mirtle.blogspot.com/2008/05/when-whistles-go-away-embarrassing-look.html for an article on the NHL and

http://forums.celticsblog.com/index.php?topic=25974.25;wap2 for an article on the NBA.49

http://sports.espn.go.com/ncb/recap?gameId=294000028



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interjection of an official into a game because it may have had a profound impact on the outcome

of the game. The foul should not have been called and I would still make this claim had the call

gone against Duke (honestly).

With the game tied at sixty-nine with under a minute to play, Duke player Gerald Henderson

missed a jump shot and in the ensuing scramble for the rebound, a Duke player, Nolan Smith

attempted to tip the ball in while Texas player Damion James tried to grab the rebound. The tip

in was unsuccessful and a Texas player got the rebound, but one official signaled a foul against

James for presumably making too much contact when going for the rebound and while Smith

attempted to tip the ball in. The official making the call was not one of the two officials closest to

the action (one on the baseline the other on the near side by the three point line) but the one

furthest away near half court. The foul resulted in Smith being awarded two free throws. Smith

made both free throws to give Duke a two point lead with forty-seven seconds to play.50

From my observation of the play, the foul called on James was disputable at best, and given

the circumstances and import of the game, the official should have considered it a no harm no

foul situation and let the teams play it out. Had no foul been called, the play was harmless

enough that most fans would not have noticed and play would have continued. This assertion

that most fans would not have noticed implicates the ³purpose of the rule´ factor when applying

de minimis, and if true, suggests that more fans thought as I did that the call produced a result

that is difficult to justify. Texas may still have lost the game, but losing because the other team is

better or played better that night is different than losing perhaps because a referee made a call

when they should have swallowed their whistle. An opportunity to minimize the perceived

³unfairness´ in what transpired at the end of the game was missed when that call was made.

50http://sports.espn.go.com/ncb/playbyplay?gameId=294000028



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At the end of a close game it is reasonable to expect a higher degree of accuracy in calls

made by officials or at least, that officials swallow their whistles unless an obvious foul has

occurred. The first proposition regarding accuracy should be obvious and the latter proposition

regarding official discretion is ideal because a disputable call at the end of a game is magnified

both in terms of its effect on the outcome of the game and the scrutiny in which it will receive.

The scrutiny aspect is important in terms of maintaining the ³integrity of the game´. The less

confident players, coaches and fans feel that the outcome of a particular game was not affected

by an official¶s action, the less these actors will feel the result was just.

As for an official call¶s magnified effect on the outcome of the game when occurring at

game¶s end: A call made that carries too high a cost for the minimal harm caused may not be

³balanced out´51 by a similar call against the team benefiting from the first call with such little

time left in the game. This is arguably why situational officiating occurs, which is when an

official chooses not to enforce a rule violation because the violation was relatively harmless and

the circumstances of the game (the end or overtime) make it likely that to do so would result in

too much of an advantage for one team and potentially affect the game¶s outcome. This, I would

argue, is de minimis in fact, just in a different name.

It is perhaps unfair to use a foul call in a basketball as an example here as I acknowledge the

difficulty in officiating basketball games and my own interest in venting about the call in

question. Fortunately, a call in this past year¶s Super Bowl provides another example of why de

minimis can lead to greater fairness in rule application in sports.

51This refers to the notion that sometimes an official will, after making the wrong call to benefit Team A,

will later make a favorable call to Team B to make up for the earlier call; a form of rough justice as Professor

Berman labels it.



18

Early in the third quarter of Super Bowl XLIII, Pittsburgh Steelers kicker Jeff Reed kicked a

twenty-seven yard field goal that was good and gave the Steelers a 20-7 lead with 3:36 left to

play in the quarter.52 But the field goal was nullified when Arizona Cardinal defensive player,

Adrian Wilson, was penalized for unnecessary roughness after running into the holder 53, thereby

incurring a five yard penalty and automatic first down for the Steelers at the Arizona four yard

line. Fortunately for the Cardinals, they were able to keep the Steelers from scoring the

touchdown and the Steelers kicked another successful field goal to make the score once again

20-7, this time with 2:16 left to play in the quarter.

Wilson ran into the holder because he was attempting to block the kick but tripped over an

offensive lineman who fell backward and Wilson could not control his body as he stumbled into

the holder. Wilson even grabbed the holder in an attempt to keep the holder up so as to not tackle

him to the ground. Put simply, the contact was incidental.54 Calling an unnecessary roughness

foul in this scenario is most likely based on the following NFL rulebook provisions:

The holder of a Try-kick is run into or piled on and the act is not incidental to blocking the

kick. Ruling: Unnecessary roughness. Such a player is obviously out of play unless the kick is

blocked, and even then, until he arises and participates in play.55

52

http://www.nfl.com/gamecenter/playbyplay?game_id=54465&displayPage=tab_play_by_play&season=2

008&week=POST21&override=true.53

The referee erroneously called the penalty running into the holder, which does not exist in the NFL

rules, but the official game box score lists it as unnecessary roughness. See

http://www.nfl.com/gamecenter/playbyplay?game_id=54465&displayPage=tab_play_by_play&season=2008&wee

k=POST21&override=true.54

Incidental is defined as: 1. Occurring as a minor accompaniment. 2. Liable to occur in consequence of or in

connection with something. 3. Casual, occurring by chance. Oxford American Dictionary: Heald Colleges Edition, p.

445. Oxford University Press, Inc., 1980.55

2006 NFL Rulebook, Article 7, A.R. 12.15, 90 at

http://blogmedia.thenewstribune.com/media/2006%20NFL%20RULEBOOK.pdf . Attempts at finding the relevant

rules in the 2009 rulebook have thus far been unsuccessful.



19

«

There shall be no unnecessary roughness. This shall include, but will not be limited to«(e)

unnecessarily running, diving into, cutting or throwing the body against or on a player who (i)

is out of play or (ii) should not have reasonably anticipated such contact by an opponent,

before or after the ball is dead«56

Assuming that Wilson¶s action technically violated one or both of these provisions, applying

a few de minimis factors suggests it was not a call that should have been made. First, the holder

was hardly harmed (if at all) because the contact with him was minimal and especially so when

compared to the general violence of the sport. Second, there is a definite interest in protecting the

holder because they are in a defenseless position during play in that they are on one knee and

have their back to defensive players running in from that backside to block the kick. This makes

sense when you also consider that quarterbacks used to be the holder and not having a rule in

place to protect against a defender ³taking a shot´ at the quarterback during a field goal attempt

seems unwise. Nevertheless, there is nothing to suggest that the provisions above seek to punish

a player who makes incidental contact with the holder. In fact, the first listed provision above

states the opposite, instead seeking to punish only non-incidental contact.

Finally, it should be clear that Wilson did not intend to ³rough´ the holder. A corner running

in from the backside and plowing into the holder without making an attempt to block the kick

would be intentional and it is not the same as accidentally making contact with the holder as

Wilson did. It is untenable to argue that had the official not made the call, other players would

intentionally seek to ³rough´ the holder in the expectation that a call would not be made.

56 Id. (Article 8).



20

The preceding examples are fairly straightforward examples of de minimis applications or

when the doctrine should be applied (in the sense that most might agree it should have been).

However, not all scenarios are this obvious. The more difficult it is to see a violation and come to

a consensus that the violation was trivial, the harder it is delineate a widely accepted de minimis

formula. But a philosophical discussion of de minimis can perhaps help outline how the doctrine

can help decision makers ascertain the right answers and as a result, gain the confidence and

acceptance of interested parties.

IV. A Philosophical View of De Minimis

A crucial aspect of de minimis is an implicit cost-benefit analysis that takes place when

applied that is meant to minimize the amount of perceived injustice felt by the relevant parties on

a given issue in relation to the injustice felt by society on the same issue. The philosophical

conundrum is in reconciling our ability to only achieve the best answer (which can be but may

not necessarily be the right answer) at a cost to those who do not agree with that answer.

Much as I did in terms of the law (see pages 3-4, infra), I argue that there exists an objective

truth pertaining to everything that exists in the world, but that our limitations as humans in terms

of knowledge, perception and understanding will not allow us to get to or agree to that truth.57 A

simple object like a bowl is probably generally accepted as a bowl to all who could observe it or

touch it.58 But it is only a bowl because long ago someone decided to call it that and the term

57It is perhaps more accurate to say that my view is closely aligned with some philosophical view(s) already

on the books that I have read and been influenced by, but cannot specifically cite for the proposition being

asserted.58

I should state here that I am making a simplified statement and am making an exception for those who for

philosophical reasons would not agree as to what a bowl is. Furthermore, I am fully aware that the term bowl

is not universally used and that perhaps a bowl to us is not a bowl to say an aborigine in Papua New Guinea

because we associate the term with its functionality (not its physical properties) and an aborigine may use a



21

stuck, and it is possible that there exists either in a supreme being or within some unwritten code

in the universe the truth of what a bowl actually is or what it is actually called. Our limitations

allow us only to characterize it as a bowl but the ultimate reality of its existence remains elusive.

But what happens when we are confronted with an object or action that does not allow for

such broad acceptance? Because we see the world as we wish to see it, our own personal

limitations and subjectivities color our perceptions and observations and create conflict. A

person who is issued a verbal threat by another may feel the perpetrator has committed an

assault59 and may seek legal relief, where someone else would not react the same way. There

may be an objective answer to whether the action constituted an assault (as society has chosen to

define it through law), but our differences may not allow us to agree to that. Thankfully, judges

in our legal system are given the opportunity to hear a case like this and adjudicate it, thereby

providing us with somewhat of a formula of what qualifies as an assault warranting legal action.

This is ideal because it expands our knowledge and understanding on the given issue, and thus

helps in our continued evolution as a society.

Just as a judge can hear a claim and decide on the appropriate outcome, sometimes the

appropriate outcome is simply to dismiss the claim entirely because it is not worthy of judicial

scrutiny. As is hopefully already been made clear, this is a de minimis application and is simply

a case of a judge determining that a claim is too trivial to address and the cost of doing so would

outweigh the benefit. It is a way in which the law attempts to rectify the relatively harmless

bowl for more purposes than we do. Already I feel this is delving into territory not meant to be discussed here so

I will leave it at that and trust the reader will focus on the overall point the author seeks to make.59

Defined as: The threat or use of force on another that causes that person to have a reasonable

apprehension of imminent harmful or offensive contact; the act of putting another person in reasonable fear or

apprehension of an immediate battery by means of an act amounting to an attempt or threat to commit a battery.

Black's Law Dictionary (8th ed. 2004).



22

conflicts inherent in our subjective worldviews so that it can focus on the more important

conflicts, those affecting more important rights or addressing more critical issues.

The discretion given to judges to dismiss such claims implies a societal acceptance of the

judges¶ subjective views regarding what constitutes a triviality. For some this may be

problematic for the simple fact that it is subjective and creates opportunities for favoritism and

injustice, even though terms like ³favoritism´ and ³injustice´ are subjective as well. The people

who feel this way are probably more likely to agree with the notion that a rule exists to be

enforced when violated, no matter the situation or the accused (strict). The contrary view and

that shared by the author, is that officials have the discretion (and rightly so) to dismiss a trivial

or highly disputable ³infraction´ depending on the circumstances. It may be factually correct to

say that a particular action violates a law (driving 71mph in your car in a 70mph zone) but it

might not be right in terms of fairness to enforce that violation under all circumstances.

Each view as posited above presents its own cost-benefit equation. The cost of applying

every rule strictly is that every foul being called will slow the game down, can lead to

disproportionate penalties, and will likely make players extra cautious. This is offset by the

benefits of having predictability in enforcement and less perceived ³unfairness´60 in how the

rules are enforced. Conversely, applying discretion will seemingly increase the perceived

unfairness and limit predictability, while maintaining the pace of the game, levying more

proportionate penalties, and of course limiting enforcement of trivial violations.

But I contend that applying a discretionary approach is actually less likely to produce more

unfair and wrong results than the strict approach because not all technical rule violations, as the

60Unfair is defined as not impartial, not in accordance with justice. Oxford American Dictionary at 1010. I

use the term to describe what a reasonable fan (see note 5, supra) would feel in response to a bad call.



23

law teaches us, is meant to be condemned. The key for the discretionary approach is coming up

with the highest consensus possible on when an official should exercise their discretion and how,

which is difficult to achieve because of our subjectivities. But it is not impossible.

Reaching a broader consensus is much more difficult to achieve in sports, and in more

complex areas of law. When it comes to things like constitutional rights,61 courts tend to be more

careful in declaring actions to be trivial. But as our early example with the high school student

shows, even constitutional claims are not above de minimis consideration. Arguably, the student

was denied due process in having her GPA reduced, but in dismissing the case the court

established that the girl¶s claim was not one those amendments were meant to address.

De minimis in law is in a way more straightforward because as a society, we do not openly

observe the doctrine being applied. That is not the same case for sports, where the fans are

analogous to ³society´ but do observe the conflicts being played out (both trivial and not) and

who themselves carry conflicts of their own: With one of the teams, with individual players or

coaches, or with each other. An instance of a judge throwing out a case after applying de

minimis will not likely be known outside the actors in the room (minus legal scholars of course),

but a conflict between sports teams is not limited to just the actors on the field; the subjectivities

of the fans are implicated as well.

The debates over calls made by referees and officials in sports increase the more the call is a

subjective one. In football, what constitutes a false start or delay of game should be widely

61Courts are very reluctant to apply de minimis in disputes over violations of constitutional rights, and one

court summed up the general consensus in this area by reasoning that any violation of substantive constitutional

rights such as the right to freedom of speech, or the right to be free from unreasonable searches and seizures

entitles a prevailing plaintiff to at least nominal damages and also intimated that even trivial intrusions are

actionable. See Nemerofsky at 333, citing to Hessel v. O Hearn, 977 F.2d 299, 301-04 (7th

Cir. 1992).



24

accepted, and for that matter, strictly enforced. The same cannot be said for penalties such as

pass interference or holding, the latter of which it has been said could be called on every play.62

a. Judgment Call?

The holding penalty example provides a perfect segue to illustrate the competing views on

whether rules should be applied strictly or with discretion. The University of Washington head

football coach Ty Willingham brought up the ³old adage´ on holding in response to his team¶s

loss in 2008 after his quarterback was flagged for unsportsmanlike conduct because he threw the

football in the air after scoring a touchdown. The fifteen yard penalty assessed moved the point

after attempt (PAT) back fifteen yards and the ensuing attempt to tie the game with the PAT

failed when the kick was blocked.63

Following the game, Willingham had this to say:

62 In one of sportswriter Dan Pompeis online columns, the following exchange was printed:

Q: Can you tell me what offensive holding is? Every week I see guys holding jerseys and

pulling the player but holding is not called. What has to happen for a holding call to be

made?

Dan Wilson, Westminster, Md.

A: The saying you could call holding on every play has some truth to it. But holding usually

only is called in blatant circumstances. If a blocker gets his hands outside the defenders

shoulders, thats usually an automatic call. If a blocker takes down a pass rusher in space,

that often is called holding. Holding calls arent always consistent because it is a difficult

rule to legislate.

http://www.wktv.com/sports/superbowl/38402534.html.

I cite this because a) it lends credence to my statement that holding on every play is a widely known

adage but; b) I have no idea who first said it and how widely known it actually is; and c) because it is an example of

the subjective human elements in sports. However, I do disagree with Pompei claiming it is a problem with

legislation and argue that it is a problem of a deficient consensus on when discretion should be applied.

63 http://sports.espn.go.com/ncf/recap?gameId=282500264.



25

I think we all know that was not the right call. One of the major plays that we always talk about

that exists in football is holding. You've heard the statement made that holding happens on every

play, and yet our officials use discretion there. The rulebooks are written for them to use

discretion, and in this case, they did not do that ... It's an opportunity to use discretion, and the

proper judgment was not used. That was not the act of a young man taunting. That was not an

unsportsmanlike act at all. It should have been viewed in its totality and not just isolated as the

letter of the law.64

Mr. Willingham¶s statement, aside from the holding penalty citation, speaks to the broader

issue this paper addresses when he comments that discretion should have been exercised. The

coordinator of football officiating for the Pac-10 Conference Dave Cutaia disagreed, saying ³The

rule seems pretty cut and dried´ in reference to Rule 9, Section 2, Article 2(c) which states a

player can be penalized for an unsportsmanlike act for ³throwing the ball high into the air.´65

Pac-10 referee Larry Farina also disagreed, stating: ³It is a celebration rule that we are required

to call«It was not a judgment call.´66 Finally, the national coordinator for officiating in college

football, David Parry, stated that all calls are judgment calls but had this to say regarding

64 http://www.cougarblue.com/forums/viewtopic.php?p=5260&sid=71ed9fc805cd73fc02f183125f99b306.

65 http://sports.espn.go.com/ncf/news/story?id=3575847&campaign=rss&source=NCFHeadlines. The

applicable portion of the rule reads:

2. After a score or any other play, the player in possession immediately must return the ball to an official

or leave it near the dead-ball spot. This prohibits:

(c) Throwing the ball high into the air.

2008 NCAA Football Rules and Interpretations, FR-122, National Collegiate Athletic Association, 2008.66

http://sports.espn.go.com/ncf/news/story?id=3575847&campaign=rss&source=NCFHeadlines.



26

Farina¶s statement: "I think what he meant is this was so obviously against the rule and flagrant

you have no option but to throw a flag."67

The University of Washington quarterback, Jack Locker, did hurl the ball in the air and thus

perhaps technically violated the rule. However, he did so as a spontaneous gesture in celebration

of a potentially game-tying touchdown at the end of the game. Furthermore, the touchdown

came at the end of a seventy-six yard, eighteen play drive.68 After watching the play it seems

obvious that Locker harbored no intent to delay the game, there was no harm in that his action

could potentially encourage ³repeat offenders´ (it was spontaneous!), and thus it does not seem

an action the rule meant to protect against. Had Locker gotten up, looked into the stands, and

then threw the ball to a fan, the call would be justified because that seems like an action the rule

aims to prohibit.

67 Id.

68 http://bleacherreport.com/articles/55835-after-further-review-pac-10-officials-must-admit-they-blew-

uw-byu-game. The author of this blog also makes a few points worthy of consideration:

The rule, Rule 9, Section 2, Article 1, Section C, reads: that "throwing the ball high into the air" is an

unsportsmanlike act. The rule also states that the player "must return the ball to an official or leave it

near the dead-ball spot."

How was Referee Larry Farina wrong BY THE LETTER OF THE LAW:

y First of all, it is a judgment call. Someone has to judge how high is "high" as it's not defined

in the rule. Strike 1.

y Secondly, Locker did not "throw." The throwing motion, defined, is to "propel from the hand

by a sudden forward motion or straightening of the arm and wrist: to throw a ball." The ball

was not thrown; it was flipped upward. Strike 2.

y Thirdly, the ball hit the shoulder of the player next to Locker, three seconds later, as theycelebrated. He returned the ball to near the dead-ball spot. Strike 3.

Following the game ESPN analysis, Lou Holtz, had this to say: "They say put the ball down or hand it

to the official; everybody I see takes the ball and rolls it out. Nobody puts the ball down, nobody

hands it to the official. 50 percent of the kids will roll the ball away from them. By that definition,

that should be a penalty also."

For a clip of the play, see http://www.youtube.com/watch?v=igjgUKP3Uhc.



27

Mr. Parry¶s statement about all calls being judgment calls is given traction by the fact that in

practice not all rules in sport are enforced strictly. Acknowledging the last proposition to be true,

the issue becomes determining under what circumstances de minimis should be applied that

could be most agreeable amongst the relevant parties so that the just outcome in a given dispute

can be achieved.

b. De Minimis in Sports: A Starting Point

The most obvious situation in which de minimis should be applied is at the end of a game.

As stated earlier, something that I consider synonymous with de minimis already takes place in

the NBA and NHL in the form of situational officiating. The problem occurs when de minimis is

not applied in this situation, because that usually creates a feeling amongst the affected actors of

greater unfairness if the foul was not blatantly obvious. In other words, players, coaches and fans

prefer that officials be more certain in their decisions at the end of close games. As such, penalty

calls at the end of close games or in extra periods should be limited to obvious violations that the

rule in question was meant to protect against and that are not trivial in nature. Applying the five

factors can help illustrate what violations are trivial and which are more harmful and subject to

condemnation.

There are also certain technical violations that should not be enforced strictly no matter what

the situation in the game. The Super Bowl play and the Washington quarterback examples from

above, though the latter was at the end of the game, serve as examples of these types of

infractions. Even if technical rule violations occurred in those examples (which arguably they

did not), their enforcement goes against the intent of the rules and were essentially harmless. It is



28

reasonable to expect to have officials that understand these intricacies so that harsh penalties that

are difficult to justify are rarely imposed.

In professional or collegiate football, infractions such as having too many men on the field,

offside, false starts, and other such technical rule violations69 should be enforced strictly,

assuming of course the infractions are observable. However, penalties such as pass interference,

holding, and roughing the quarterback or other players are judgment calls and officials should,

by rule, be allowed to exercise their discretion in determining whether a violation occurred or if

it was minimal or disputable, and be allowed to not have to call a penalty. Pass interference is

often a disputable call because officials cannot just focus on whether there was prohibited

contact on the play; officials must also determine when the contact took place and if it did prior

to the ball being thrown or whether both players were attempting to catch or deflect the ball

when contact occurred.70 The point is that given all the factors to consider in determining

whether pass interference took place, the rule simply cannot be enforced strictly; ideally,

officials should call the penalty only if illegal contact is obvious and should refrain from making

the call when the call ³could go either way´.71

There are, I am sure, numerous penalties of the pass interference variety in other sports that

are often disputable and require official discretion. The best we can hope for, and what I argue to

be the ideal starting point, is that officials in sports understand when it is appropriate to exercise

69 Put simply, these are the types of infractions that, at least on the surface, would appear not to require

official discretion (other examples would be a delay of game or illegal motion) and are essentially indisputable. But

even an infraction like having too many men on the field could be subject to de minimis consideration if the

twelfth man is running off the field and is not quite on the sideline when the play starts; an official could let it go (I

am sure I have seen them do this before).70

For full rule text in NCAA, see NCAA Football 2008 Rules and Regulations, Rule 7, Sec. 3 Illegal Contact

and Pass Interference, FR-103-104.71

Could be called against either player or though arguably a technical rule violation, it was not serious

enough to affect the outcome of the play.



29

discretion because certain situations make it more ideal, that certain rules should not always be

strictly enforced because of the unjust penalties that can result, and that certain fouls requiring

their judgment be enforced carefully, keeping in mind that the less obvious the violation, the

more heavily scrutinized the foul call will be.

V. Conclusion

I argue that the purpose of laws and their enforcement is to seek justice and find the right

answer to a dispute between two parties. The same concept applies to rules in sport. And in both

law and sports, some rule violations are too trivial to punish and when such violations occur

without penalty, the de minimis doctrine has been applied.

Ironically, de minimis does more to inform our understanding of what is just and right when

it is not applied in situations when it should have been. De minimis being applied typically goes

unnoticed because we accept and expect that our collective trivial infractions will be ignored. It

is when such infractions occur and de minimis is not applied that our sense of injustice is

offended because we are made aware of the harsh punishment that results in comparison to the

relatively harmless act that led to that punishment.

The role of de minimis in sports is much the same as it is in law: to ignore the trivial

violations in an attempt at better enforcement of the more serious violations, and to minimize the

perceived unfairness of certain penalties. To accept de minimis in sports, we first must

acknowledge that even if we may prefer that rules be enforced strictly, in practice they are not

always. Officials are given the discretion to determine whether a certain action on the field

constitutes a violation worthy of penalty and when this discretion is exercised, it typically goes

unnoticed.



The seemingly implicit understanding amongst players, coaches, fans and officials that some

rule violations will be ignored is challenged in the instances when violations are not ignored. But

this scenario reminds us that not all rules should be enforced strictly because to do so every time

can lead to disproportionate penalties and condemnation of actions that were not meant to be

prohibited by rule. This creates a sense of unfairness and that such strict enforcement is not right.

This, in turn, can damage the reputation of a league if the outcomes of many of its games seem to

turn on controversial enforcements of league rules (see the NBA).

Through the various examples provided in this paper, perhaps a better understanding of when

in sports it is reasonable to expect de minimis to be applied can be achieved. The maxim is often

applied at the end of close games which makes sense in the context of ensuring that an official¶s

call at the end of a game does not have an impact on the game¶s outcome (to an unfair degree).

Specifically, there should be an expectation that officials make a call only when certain a rule

has been violated at too low a cost to the perpetrator and the violation was not harmless. That

criterion should also apply to certain types of penalties, no matter what the game situation.

Perhaps the easiest way to come to terms with how de minimis should be applied in sports is

to not consider it. After all, sports are games and played for our entertainment. Perhaps it is just

easier to accept that some calls officials make will upset us and may unfairly influence the

game¶s outcome, but this is okay because it is after all, just a game. But simply because it may be

easier, it does not make it ideal. Why not do better.

ariel's paper

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