A Right to Be Punished?

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 Nuggets 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 Mavericks’ 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.

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16 Responses

  1. marg says:

    Really interesting post.

    I think it’s interesting to note that a team can’t benefit from a flagrant foul in the same way that it can benefit from a simple shooting foul. If Wright had flagrantly fouled Anthony, the Nuggets would have gotten the ball back after a foul shot, and the Mavs would be forced to foul again.

    I think it’s accurate to say that when a player gets called for a flagrant, the rules “punish” him in some morally relevant sense–both within the game (giving the other team a free shot and possession of the ball), and out of the game (with fines and suspensions and the like). And the rules make sure that a flagrant fouler can’t benefit from the wrong he’s committed (unclean hands, etc.).

    In contrast, it’s not clear to me that the rules “punish” an ordinary shooting foul in any morally relevant sense, even though we call it a “foul” (with all the moral baggage of that word). A flagrant foul is a malum in se, but an ordinary shooting foul doesn’t seem to even be a malum prohibitum.

    Instead, “violating” the rule against shooting fouls is now very much the functional equivalent of a rule permitting defending team to exercise an option to stop play, with two free-throws as the strike-price. There’s no moral disapprobation associated with exercising that option–in fact, Melo’s done it himself a bunch of times.

    Wright wasn’t angry because the refs didn’t punish him; he was angry because he wasn’t permitted to exercise the option. Presumably the NBA could change the rules to permit the referees to let the offense play on if they have an advantage, like in soccer–but that would be a different system, and it doesn’t seem like that’s the one that basketball players and fans want.

    Perhaps the best way to analyze the situation is to take Holmes’s advice and shuck off all the moral language from the analysis altogether, and instead ask what we’d predict the official response would be after Wright bumped Melo. The anger isn’t at not being punished; it’s anger that the actual outcome is one that no one would have predicted ex ante.

  2. I would point to civil disobedience as an analogous case. Let’s define it for this discussion as lawbreaking that is public, non-violent, and morally motivated. The law that is violated in civil disobedience is often itself unobjectionable (e.g., when incensed protesters block traffic to draw attention to some other issue). But regardless of whether the law broken is controversial or not, being punished is often one of the core aims of the disobedient person—it serves a powerful expressive function that may be otherwise unavailable, particularly in the contexts in which it tends to arise, such as among politically frustrated minorities. It may also give rise to a legal challenge or pave the way for other systematic change. A state can, in these circumstances, harm people by refusing to punish them for conduct that is generally illegal. This issue lies near the core of my undergraduate senior thesis; I find it endlessly fascinating.

  3. John says:

    Eh – I don’t see it. You can’t analogize sport to “real life” in any meaningful way – sports are self-contained, existing only in reference to the rules that define them. Think of Rawls’ explanation of it in Two Concepts of Rules.

    But if we have to dive into analogy, the Mavs have reason to be annoyed. I see it like the common law grafted onto statutory law. In other words, the “statutory law” of the rules of the game (touching a player equals a foul), has been enhanced by the “common law” of referees ALWAYS calling fouls when a player intends to foul (especially towards the end of games). The Mavs player had a right under the (written) rules to expect the foul to be called – doubly so given the history of the intepretation of the rules in the league.

    An interesting counterexample is football – why does the intentional spike by the quarterback to stop the clock not count as intentional grounding? As far as I know there is no carve out in the rule book, but the refs (and the league) allow it.

  4. Mike Madison says:


    Rawls is apt, and I could and perhaps should have cited him.

    But millions of sports fans would disagree with the proposition that sports can’t be analogized to real life (or that real life can’t be analogized to sports). In Pittsburgh, where I live, the only meaningful question seems to be whether ice hockey can be analogized to football.

    More important, it’s far from clear that sports are really so self-contained. There are fans, referees, coaches and players around the world who would point to real world impacts of sports and sporting events and to the impact of real world rules on the field (court, ice) of play. Remember the Soccer War of 1969, or Marty McSorley or Todd Bertuzzi.

    That, I think, is my eventual point, that the basketball example highlights the distinctive interplay between rules and practices at different levels, “inside the game” and “outside the game,” and the links between that interplay and the persistence of the institution itself. The Mavs are unhappy here because certain expectations have been frustrated, and while it’s tempting to conclude that the expectations come simply from the nature of basketball, I think that conclusion is too quick.

    The statutory law/common law analogy is useful, though I doubt that the interplay is quite as hierarchical as the analogy might imply. My favorite example of this sort of thing is the board game Monopoly, which has a widely-shared set of “common law” rules to go with the formal, printed rules.

    Last, as I understand the NFL rule, “intentional grounding” requires that the passer be trying to avoid loss of yardage due to pressure from the defense. (This may be an official interpretation of the rule, rather than the text of the rule.) There is, in other words, a kind of mens rea requirement. Spiking lacks that element of intent.

  5. Gabe says:

    The Mavs were playing within the stated rules of the game, with which (we have to assume) all players and coaches are familiar. Given the rules of the game, the Mavs were trying to exploit them to their advantage, under the circumstances at the time.

    Fouling another player isn’t breaking the law, in the same sense a felony is. It’s more like a civil offense, not a criminal one. Wright (and the Mavs) were aware of the penalty, and chose to commit the foul, since they had prudently not used all of their allowed fouls in that quarter, hence still having one to give. I see it as strategy, not breaking the rules.

    Lastly, we can’t say for sure that “Wright didn’t choose to foul; he was told to foul.” If he had such an objection to it, had he voiced his objection the coach likely would have substituted another player who agreed with the strategy.

  6. Interesting perspective.

    I agree with the statement that tactical fouls and actual fouls differ significantly in their meaning for the game. Ordinary fouling and its punishment is an intrinsic, essential part of the game, as it constantly probes the boundary between legal and illegal behaviour and thus establishes the codes and ethics of basketball, if you want. Tactical fouls, however, are parasites of the system. Personally, I would like to see that tactical fouls are treated differently from personal fouls, but unfortunately it is impossibile to prove the intentions of a player in a general scenario. You can only judge the act.

    But the original post is missing at least two essential points:
    a) consistency. If you ask an individuum to act in a certain system of rules, you have to apply the rules consistently, or you will cause conflicts. The same type of fouls was punished multiple times in the same game. Wright simply put trust in the system, and was betrayed.
    b) accountability. If a system allows that illegal behaviour leads to an advantage, it cannot blame the individuum for exploiting this loophole, particularly since it is completely obvious. Wright had the right to be punished, simply because that is how the system is set up. If you don’t want that, change the system, but don’t blame the individuum.

  7. Kamdog says:

    The rules are the rules, and he fouled him and it should have been called under the rules. The refs have no right to ignore the rules. Having said that, I like the approach hockey takes. If you have the puck and get fouled, the foul isn’t called until you lose posession of the puck, and the foul is not called if you score. In that way, there is no advantage lost when you are fouled. So, in a non-shooting foul situation, let the play continue, and, if there is a score, the foul is waved off, and if there is no score, you get the ball back.

  8. Dan S says:

    Fantastic post. As a fan of soccer and basketball, I have often thought about the dramatically different ways that the games are officiated. Your analogy of basketball to law and soccer to equity is interesting and compelling (with the exception that the penalty shootout is maybe the most inequitable device in sports).

    Marg makes a great point about considering basketball in terms of contract law. To supplement that point, I would add that fans and players expect officials to call tactical fouls because doing so makes games more competitive (enhancing the fan experience) and appropriately tests the opposing team’s ability to make free throws.

    The foul-shooting “parade” raises the chances of a late game comeback by extending the game and increasing the number of possessions. Players likely prefer tactical fouls to be called because at times, when players are on the losing side, they may be dependent on them to extend a game and erase a deficit.

    Furthermore, foul shooting is a measure of a player’s skill level (See Kansas v. Memphis, 2008). Nobody said that Kansas’s strategy of fouling Memphis players was “unfair” because it was “tactical.” Rather, fans and players alike generally thought that Kansas’s comeback was appropriate because of Memphis’s failure to make crucial free throws. Moreover, among basketball players, there was little uproar about the “unfairness” of the hack-a-Shaq strategy because it was generally accepted that a professional basketball player should be able to make free throws consistently enough to deter such a strategy.

  9. Steve says:

    Y’all must not have watched the game!

    In basketball there is often a case where there is incidental , accidental contact which does not affect the relative advantage of either party. A foul COULD be called, in a slavish adherence to some letter of the law, but it most often is not.

    Wright’s play, the initial foray (which caused Carmelo to fumble the ball away – tho recovered) and the secondary bump which did cause a momentary fumble which Carmelo recovered, shot and SCORED.

    Now this is key.
    IN WRIGHT’S SECOND BUMP, HE WITHDREW FROM THE OFFENSIVE PLAYER AND PLACED HIS HANDS APART PALMS OUTWARD – the universal sign off “bump, no foul”. Since Carmelo had attempted his shot two steps after that ‘no fault bump’ his miss would not have been ruled a shot attempt amidst a foul, then there would be no foul shots.

    The fault is totally and completely Wright’s.
    He should have embraced Carmelo around the shoulder and prevented any kind of shot or movement whatsoever.

    As a Dallas fan, I saw that incident as a correct no call.
    In any event, the best that Rick Carlisle could produce for a 7 foot Dirk Nowitski with a whole 1 second of time is a contested 3 pointer from the far elbow???

  10. Brian says:

    The Mavericks did have the right to be rewarded for having that foul to give at the end of the game. Being under the limit for the ‘bonus’ is an asset, and they were arbitrarily denied use of that asset.

  11. Dan S says:


    Completely agree that Wright should have exaggerated the foul more to make sure he got the whistle. Still, the NBA acknowledged that the officials made a mistake, and the NBA certainly watched the video before issuing the apology.

    Also, no one is saying Melo would have shot free throws, as the Mavs had a foul to give. It’s pretty safe to assume, though, that the Mavs would have fouled on the next inbound to make the Nuggets shoot free throws. Then the parade of free throws would begin.

  12. John says:


    I would of course agree that sports holds many truths for life at large, and is often a handy source of analogy; what I meant to say was that I believe it is largely pointless (or, more accurately, it would be wrong) to import individuals’ outside-world expectations into particular sports contexts, because the only expectations that matter are those created by the rules of the sport itself – by the contests’ very terms. I think this is what Rawls suggested.

  13. Mike Madison says:


    I think that we largely agree, though what counts as an “outside-world” expectation and what are “the rules of the sport itself” embody the sorts of multiple meanings that Rawls was trying to disambiguate.

    There are times when so-called “outside-world” expectations get built into “the rules of the sport itself,” either when “outside-world” standards of textual interpretation get applied to the formal rules of the sport (“X means Y” in a statutory interpretation sense; cf. the intentional grounding rule in the NFL), or when some “outside-world” expectations become part of the informal rules-as-practice. The very plausible belief that an intentional foul at the end of a basketball game is a kind of time-stoppage option that can be exercised at the discretion of either team reflects a certain kind of outside-world fairness construct as applied to the game. Discretionary non-calls, deferred penalties in hockey, and the advantage rule in soccer also reflect outside-world (fairness) expectations, though those expectations are distinct, and each is adapted to the specifics of a particular sport.

    My ultimate point isn’t Rawlsian; I’m not really interested in “what’s a rule” and what’s not. My point is really that there is are shared enterprises in question — a game nested within a sport — and the persistence of those enterprises depends on combinations of formal rules, informal practices, and inside- and outside-world expectations.

  14. John says:

    Mike –

    You are right – I think we largely agree, save for the point that I think that a participant in contest has (or maybe should have) no ability to complain when his outside-world expectations aren’t respected in the context of the game, unless those outside-world expectations have been ‘interalized’ into the game to such a degree that they can be fairly said to have become part of the game.

    Then again, maybe you agree with that as well.

  15. greglas says:

    Great post, Mike.

    Late to the party, it seems, but I can’t resist this topic…

    Proceeding by analogy, I think what we’re wrestling with here is essentially, by analogy, a mix of what we see with prosecutorial discretion and sentencing guidelines. In those cases, we have a legal rule (X is against the law, Y is the standard punishment) and a debate over whether, in some cases, a legal officer should have the power to say: “X will not be wrong in this situation” or “Punishment Y will not apply to this person.”

    This stuff gets very deep, very quick — see Bill Stuntz, e.g., on the politics of prosecution (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=286392) or Stith and Cabranes on Fear of Judging. All I can say in a brief space is that the questions here are not simple — the application of legal rules to particular facts will inevitably require the official to get a sense of the underlying “spirit” of the rule (Fred Schauer might say “justification”) and hence what the law *really* means (i.e. the deep logic of the rule as applied) becomes hard to separate from when the rule is or is not applied. This leads us to the crits, who tell us its all about what the judge at for breakfast, then we go postmodern, yadda yadda, and things get hopelessly deep.

    Returning to the right to be punished for a foul, I think what’s really at play here is whether the non-flagrant foul is an exploitable game tactic or whether it is a violation of the spirit of the game. So there’s a deep logic in the game.

    My sense is that in this case, there actually *was* a right to be punished, since the custom and practice of the sport led the player to believe that fouling in the last minutes was part of skilled play. (Whether there was an actual standard form foul, as disputed above, seems like an important question.)

    Translating back to law — the analogous question might be whether an adversary is engaged in vexatious litigation or abuse of the discovery process. Courts have to make close calls in some cases that try to determine whether a participant is violating the spirit of the litigation game. That requires the official to understand the deep logic of the litigation game.

    As I’ve said in some papers, I think the deep logic of games is fundamentally different than the deep logic of law, primarily because games eschew efficient instrumental utility in favor of an aesthetic process.

    But I’ve got grading to do!

    p.s. There are few articles and books on the law-game point. See, e.g., Allan Hutchinson, It’s All in the Game (2000).