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Litigation Journal

Fall 2023: Game On

To Err Is Human

Hon. Roy K. Altman


  • The athlete can prepare, but he is never in complete control of his surroundings.
  • We love sports, because, at their apogee, sports allow us to experience a human being who has managed to surmount his own imperfections.
  • To excise human errors from a game we love is to erase a part of our history.
To Err Is Human
Thomas M Barwick INC via Getty Images

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I’m against robo-umps. It’s not that, as a federal judge, I empathize with the umpires—not at all. I’m just as likely as anyone else to blame a Miami Heat loss on the referees. It is, rather, a recognition that, in a robo-umpire who always gets it right, who never hears the crowd, who doesn’t toss the manager, we’ll lose some part—perhaps even the essential part—of what makes us love sports in the first place.

Our affinity for athletic achievement is wired into our DNA. For thousands of years, the fittest members of our clan hunted woolly mammoths, protected us from saber-toothed tigers, and fought off raids from rival tribes. We grew to love these proto-athletes, not because they scored points or won games, but because they kept us alive. At the same time, we recognized that our warrior-saviors were mortal, human, fallible—that they failed as often as (or more often than) they succeeded. And we loved them for that, too—partly because we understood that bringing down an 18,000-pound mammoth with a spear was hard, but mainly because, having expected an undersized Homo sapiens without sharp teeth or claws to fail, we were elated to find him, to everyone’s surprise, victorious.

To err, as the saying goes, is human. As the Jews wandered through the desert those 40 years, they carried with them an ark of pure gold, flanked by golden ringlets through which the Levites inserted two enormous golden rods that, on their long march toward the promised land, the priests would carry, like a litter, on their shoulders. When, at night, the golden flame that guided Moses and his people through the desert came to rest, the Levites would reconstruct, in the center of the sprawling encampment, the Mishkan, the Tabernacle—a mobile temple divided into two rooms, one much larger than the other and decorated with multicolored animal hides, which the priests had stitched together and slung over the wooden frame of the temple. The smaller room (the Holy of Holies) was hallowed ground, the resting place of the Divine Spirit, so imbued with the overwhelming presence of God that only the high priest Aaron, brother of Moses, could enter it—and even he, only on Yom Kippur, the holiest day of the year. It was here that, every night, the Levites would leave the ark, inside of which God had commanded Moses to place two sacred items: first, the Ten Commandments, engraved by the Heavenly Finger onto two stone tablets and bequeathed to the Jewish people, through Moses, as the cornerstone of natural law; and second, the shattered remnants of the original tablets, also inscribed by God, but cast violently onto the base of Mount Sinai when Moses discovered that the people had betrayed their God for a false idol, a calf constructed of the impounded gold they’d taken from Egypt. And so it was that inside the ark there lay two sets of the same code: one whole, the other broken; one pure, the other the vestige of perfidy. To what end? To prove for all time and to all mankind that, even in the holiest space on Earth, bathed in gold and enshrouded by God, housed in the most sanctified room of the holiest temple in the universe, imperfection abounds.

Without Failure, There Is No Triumph

And it’s that same juxtaposition between what we’ve come to expect from life—failure, disappointment, and the inevitability of our own destruction—and the athlete’s unanticipated triumph that brings us so much joy today. We love sports, in other words, not because the athletes are perfect automatons whose shots, strokes, and decisions are always true and pure, but because, at their apogee, sports allow us to experience a human being who has managed, through force of will and a not insubstantial dose of luck, to surmount his own imperfections.

But (you might say) referees aren’t athletes—and their mistakes add nothing to the sense of euphoria we feel when, just before the buzzer sounds, in the presence of tens of thousands of expectant faces, that orange-leather orb rises high over outstretched hands, up into the zenith of its parabolic journey, and, almost impossibly, passes with a comforting swoosh through the bottom of the net. Just the opposite (you insist): The umpire’s error only detracts from, and is never really a part of, the game. I disagree. As with the low-hanging branch that ensnared Absalom’s curls, man’s fate has always been tied to external forces. Had it not poured at Agincourt on the night of October 24, 1415, the French cavalry may not have gotten stuck in the mud before a phalanx of Welsh bowmen, and King Hal would not have won the French crown for his son. Had Jeb Stuart not missed a turn in Pennsylvania, Robert E. Lee might have prevailed at Gettysburg. Had a Tunisian referee not missed Maradona’s handball in the quarterfinals of the 1986 World Cup (what porteños call “the Hand of God”), Argentina would not have grabbed the title.

Missed Calls Are Part of the Game

The point, of course, is that the athlete can prepare, he might work hard, he may even be supremely talented, but he is never in complete control of his surroundings. The vagaries of the weather, the misjudgments of his companions—no less than the errors of the referee—are (and have always been) a part of his triumph (or the cause of his ruin). We’re not just talking about wins and losses here. Umpires (you should recognize) have long been integral parts of the game in other, interstitial ways. Think, for instance, of the manager who argues balls and strikes and who then gets tossed, not because he thinks the call merited dismissal, but to rally a team whose effort has of late, in the dog days of summer, begun to languish; think about the winning streaks that have traditionally followed these expulsions—as if the team, having given up for a while, now found something (or someone) to fight for; think of how the crowd rises unevenly as the manager lunges out of the dugout—initially only in the first few rows, closest to the action, but then, by rows, like a wave, up into the second and third decks; think, also, about the shouting match that ensues between two grown men somewhere along the first-base line—with the crew chief trying to intervene—and the manager’s spittle spraying like bird shot around the umpire’s face and shoulders; think, too, of the manager, his face hot and red and contorted in anger, reversing his hat so as not to violate the golden rule (of “never making contact with” the ump); think of the umpire, defusing and walking away, and of the manager reengaging; think of Lou Piniella kicking the dirt and pointing to home plate or ripping a bag from the clay and tossing it awkwardly, like a square shot put, into the infield; think, finally, of Bobby Valentine, having been ejected from a game, returning to the dugout in disguise. This is the stuff dreams are made of. It’s baseball—and it can’t be got rid of.

And, indeed, much like Ruth’s called shot, Jeter’s flip, and Mays’s catch, these umpiring blunders, such as they are, even have their own names; they live on in our collective memories—the Pine Tar Incident being only the most notorious example. To excise these (very) human errors from a game we love—a game whose every stat we cull, analyze, and debate precisely because of the rate at which even our greatest players err—is to erase a part of our history, to pretend that the game’s outcomes are decided by the players alone, and to assume (incorrectly in my view) that, by removing some extrinsic errors, we’ve improved the game in a meaningful way. This last view seems particularly objectionable—because, if errors are what we’re solving for, then we can easily imagine a world in which future games are played, not by humans (who misjudge, misplay, and err), but by robots (which never do). No, thank you. For my part, I’ll take a missed third strike every now and again and hold on to the game we love.