The Ethics of Strategic Fouling: A Reply to Fraleigh

JOURNAL OF THE PHILOSOPHY OF SPORT, 2005, XXXII, 87-95 2005 by the International Association for the Philosophy of Sport The Ethics of Strategic Fouling: A Reply to Fraleigh Robert L. Simon In a recent article, Warren Fraleigh made a significant advance in the discussion of the ethics of strategic fouls (1: pp. 166 176). Strategic fouls occur when a competitor in an athletic contest deliberately and openly breaks a rule expecting to be penalized and with willingness to accept the penalty, in order to obtain a strategic advantage in the contest. 1 Examples include fouling by the losing team to stop the clock in the last few minutes of a basketball game and interfering with a pass receiver in (American) football who otherwise would break free and possibly score a touchdown. The discussion over the ethics of strategic fouling is much more than a narrow debate over the use of a tactic in sport. Critics of strategic fouling admit that the practice is prevalent and tend to regard it as an example of how emphasis on winning has undermined the deeper and more fundamental values that make sport a morally attractive enterprise. In particular, critics fear that strategic fouling alters the kind of test that should be fundamental to a sports contest and so in effect gives priority to winning while undermining the kinds of skills that when exercised properly give winning its true significance. Undue emphasis is placed on results, and the external rewards such as fame and fortune that come with winning, and not enough on the integrity of the activity itself. Philosophers of sport have discussed the ethics of strategic fouling from a variety of perspectives. Those who view the ethics of strategic fouling from perspectives influenced by formalism have stressed that such fouls are violations of the constitutive rules of the game. By this view, the rules are the basis of the (implied or explicit) contract between the competitors, or at least the basis of the public understanding that all competitors should be expected to follow. Hence, strategic fouls either violate the fundamental norm of conformity to the constitutive rules of the game or are perhaps not part of the game itself. According to the latter interpretation, strategic foulers are not really playing the game at all and so are unable to truly win, because the game is defined by the constitutive rules that determine what are and are not permissible moves within it. Other writers who emphasize the social context of sport have argued that social conventions and practices, often referred to as the ethos of the game, legitimate strategic fouls in a way ignored by formalists, who focus too exclusively on formal elements of sport, particularly constitutive rules. Thus, there is alleged to The author <rsimon@hamilton.edu> is with the Department of Philosophy, Hamilton College, Clinton, NY 13323. 87

88 SIMON be a common understanding among basketball players that losing teams will foul at the end of games to stop the clock. Because all teams do this and expect others to do so, as well, there is nothing illegitimate about such tactics. A third group of theorists, including myself, has agreed with the conventionalists that formal rules are not necessarily all ethicists in sport have to take into account; they also have been wary of endorsing the conventionalist view that a practice is legitimate just because current practitioners of a sport accept it (4: pp. 1 16; 3: pp. 50 52). These theorists have argued that in addition to rules, a broad interpretation of the best understanding of the game, including respect for its internal norms and values, can be fundamental to the ethical assessment of practices in sport. In my own case, I have tried to defend a theory of penalties that distinguishes punishments for prohibited behavior from prices for the exercise of strategic options and have argued that in some cases, such as fouling late in a basketball game to stop the clock and force the team in the lead to make foul shots, the penalties for strategic fouls are prices for allowable strategic choices rather than sanctions of moves not allowed in the game. Fraleigh s recent contribution takes the discussion farther by presenting new arguments, drawing in part on the work of Cesar Torres (5: pp. 81 92), against the acceptability of strategic fouling and by maintaining that the best overall theory of competitive sports supports the view that strategic fouls are unacceptable. Moreover, Fraleigh uses this line of argument to undermine the use of the price sanction distinction to defend strategic fouling. As we would expect given his distinguished contributions to the field, Fraleigh s discussion significantly advances the debate. In fact, I myself feel its pull and find that his arguments not only deserve careful consideration but also are quite plausible. But are they correct? Perhaps, but there also are points to be made on behalf of the judicious use of strategic fouls that deserve consideration and might not have been given adequate weight in Fraleigh s article. After briefly summarizing Fraleigh s arguments, I will try to develop these points in order to show why strategic fouling might sometimes be appropriate (and ethically defensible) in a hard-fought sports contest. Fraleigh s Critique of Strategic Fouling Fraleigh draws heavily on Cesar Torres s distinction between the constitutive and restorative skills of a sport. Constitutive skills are those required to meet the challenges set by the constitutive rules. In basketball, they would include dribbling, passing, moving without the ball, and shooting field goals. In soccer they would include kicking the ball, dribbling it, and moving into the right position when action is elsewhere on the field. Restorative skills, on the other hand, are those employed when something has gone wrong in the game, as when rules are violated. They set matters right and get the game back on course. Foul shooting is a restorative skill in basketball, and shooting penalty kicks is one in soccer. The point of this distinction is that constitutive skills are fundamental to the game in a way that restorative ones are not. Restorative skills apply only when the central lusory project, as defined by the constitutive skills, has been interrupted by a rules violation (1: p. 171). Restorative skills then can be employed in order to put the game back on track either by penalizing or compensating the offending or

The Ethics of Strategic Fouling 89 offended team or player (5: p. 85; 1: p. 171). As Fraleigh maintains, Torres s view trumps Simon s point in precisely the appropriate way which Simon suggests as legitimate since it establishes a theory of the skills of sport which assign secondary, derivative importance to the restorative skills of foul shooting in basketball (1: p. 172). Part of what makes Fraleigh s argument significant, then, is that it advances the discussion beyond the formalist-conventionalist debate by maintaining that those who take a broadly interpretivist view of sport, including those who appeal to such notions as respect for the game and the most defensible overall interpretation of the sport, should conclude that strategic fouling is ethically inappropriate in competitive athletics. Fraleigh s case, then, is that in the best interpretation of sports, contests should be decided on the basis of the skilled exercise of constitutive skills, which after all are the skills that the constitutive rules test. Although restorative skills inevitably play a role in actual contests, competitors are not showing the appropriate respect for the game or, to put it another way, are undermining the central challenge the sport presents by deliberately transforming the game from one in which constitutive skills, the skills that sport is best construed as testing, dominate to one in which restorative skills can be determinate. Finally, Fraleigh points out that rules makers over time have made it clearer that certain penalties are to be construed as punishments for prohibited behavior rather than as prices for exercising strategic options. For example, in American intercollegiate basketball the rule with regard to intentional rules violation has moved definitely toward a punishment (1: p. 172). This critique of strategic fouling has considerable force, but before it is accepted we need to examine three distinctions more closely. The first is the distinction between constitutive and restorative skills, the second is between different kinds of strategic fouls, and the third is between a critique of indiscriminate strategic fouling and a critique of strategic fouling in specific situations in which it might add not only to the excitement and interest of the contest but also to the test it presents to competitors. Constitutive and Restorative Skills What exactly is the distinction between constitutive and restorative skills? In part, it is one of function. Restorative skills are those employed to get the game back on track after a constitutive rule has been violated. In part, the restorative skills might resemble physically the same skill when exercised in the normal course of play. Foul shooting in basketball resembles in many respects the movements of open shooters who have their feet set when launching the ball. As Torres points out, however, there are important contextual differences (5: pp. 86 89). Foul shooting is fixed and repetitive compared with the fluid motions of normal play in basketball. There is no opponent trying to defend against the shot. The shooter does not have to move to get open in the first place. Foul shooting, in other words, is less complex and therefore less interesting than shooting field goals. It is perhaps for this reason that fans at a basketball game marred by frequent fouling often feel that the game is spoiled and call to the referees to let them [the athletes] play the game, something that would make no sense if foul shooting were regarded as a central skill of basketball.

90 SIMON All these points support the analysis of Torres and the use Fraleigh makes of it. But consider further. There seem to be two accounts of restorative skills presupposed by this discussion, or at least two separable claims about them. The first is that restorative skills are defined by function; their role is to put the game back on track after certain sorts of violations of constitutive rules. The second is that exercise of restorative skills is less interesting or complex than exercise of constitutive ones and so should not be construed as skills the game is designed primarily to test. (Perhaps the first condition should be regarded as the definition of restorative skills and the second a reason or justification for regarding them as less central to the sport than constitutive skills.) But do all restorative skills fit both of these conditions? Consider, for example, the art of killing penalties in ice hockey. The skills involved are hardly simple and repetitive. Penalty killing and the correlative power plays associated with it often are especially interesting and exciting parts of the game. Although a hockey game constantly disrupted by penalties can be regarded as defective to one degree or another and even spoiled in extreme cases, the skills employed by both sides during power play often are as intrinsically interesting or complex as those employed in the regular course of play. 2 (I assume here that because the numerical disadvantage assigned to the team that has violated the rules turns the situation into a restorative one, the skills exercised during the power play are restorative ones. Perhaps, however, Torres and Farleigh would argue that the skills involved are constitutive ones. If so, they may avoid my point that restorative skills can be complex but only at the price of blurring the distinction between constitutive and restorative skills to a dangerous extent.) Moreover, even though the physical motions of making a foul shot in basketball might be less complex than normal field-goal attempts, making crucial foul shots at the end of a close game may be as psychologically complex and difficult as exercising constitutive skills in the normal course of play. Moreover, aspects of regular play might in themselves also lack complexity and exhibition of high levels of skill, such as a basketball player dribbling out the clock or a physically dominant player constantly scoring easy layup shots from under the basket against clearly mismatched opponents. Finally, we need to distinguish between the complexity of an action during a game, such as shooting a foul shot, and the strategic complexities generated by the possibility of strategically fouling and sending an opponent to the foul line. The possibility of what I will later call the judicious strategic foul generates a whole set of complex options and choices that can make the overall game more interesting than otherwise for participants and spectators alike. 3 Accordingly, we can conclude that the second condition, lack of complexity and interest although it applies to some, perhaps most, exercises of restorative skills does not apply to all of them. Moreover, the exercise of some skills during the regular course of play can sometimes lack complexity and be uninteresting, as well. Hence, the second condition does not provide an overarching justification for always regarding the exercise of restorative skills as inferior to the exercise of constitutive ones. What is the significance of this for Fraleigh s argument? First, it suggests that the use of restorative skills in a sports contest does not necessarily make that contest less complex or less interesting than otherwise, although it might often in fact do so. Fraleigh s argument suggests that the perfect contest would not involve

The Ethics of Strategic Fouling 91 restorative skills at all because there would be no rule violations calling for the use of restorative skills. But contrary to that suggestion, sometimes a sports contest in which restorative skills are employed can be a better test of more varied abilities than one in which only constitutive skills are employed. For example, an ice-hockey game with some power plays might provide more of a test of more varied skills than one in which two evenly matched teams continually struggle at center ice with few shots on goal by either side. And, as I will argue below, basketball games that involve the judicious use of strategic fouls might be more complex and interesting and provide a more stringent test for the participants than one in which such a practice is disallowed or absent. Fraleigh (and perhaps Torres) might accept this point but reply that unintentional rule violations might be an inevitable part of a hard-fought contest between evenly matched teams and might indeed add interest to the game, but intentionally violating the rules to gain a competitive advantage is another matter. Let us turn to that point, keeping in mind, however, that the use of restorative skills might in certain contexts add to rather than undermine the interest, strategic complexity, and excitement of a contest. Types of Strategic Fouls Although the distinction between constitutive and restorative skills might be complex, the main point of Torres s distinction is that constitutive skills are those the game is best construed as designed to test (5: p. 89). Accordingly, intentional fouling changes the nature of that test and disrespects the central value of the game by eclipsing the role of constitutive skills and elevating restorative skills beyond their proper station. The true test of which team or athlete is best is found in the exercise of constitutive skills, not restorative ones. Thus, we judge who are the best defensive backs in football by such factors as their speed and quickness, their intelligence in reading plays and anticipating the moves of receivers, and their ability to make interceptions, not by how good they are at committing pass interference! This argument is a strong one, and I believe it does establish strategic fouling as (at least presumptively) unethical in at least two kinds of cases. The first is when a less skilled team or player resorts to strategic fouls in order to disrupt the style or eliminate the advantage of skills of a superior team in other words, to prevent the other team from exhibiting superior constitutive skills by disrupting the normal flow of the game so no room is left for skillful play. For example, an ice-hockey team that cannot skate anywhere near as well as its opponents might resort to illegal roughhouse play thinking it has a better chance to win that way, even taking into account the likelihood of penalties being called, than if it had to match its constitutive skills in the normal course of play. A second related kind of strategic foul, identified by Fraleigh, occurs when a foul is committed in order to deprive an opponent of an advantage already gained through superior use of constitutive skills. This category would include intentionally fouling in basketball, soccer, or hockey in order to prevent a player who has broken away ahead of the defense from scoring a goal or deliberately committing pass interference in American football against a receiver who is about to break into the open for a touchdown.

92 SIMON Each of these kinds of strategic fouls is presumptively unethical for precisely the reason identified by Fraleigh; namely, it violates the principle that sports contests should be primarily tests of constitutive skills by either preventing opponents from establishing superiority in use of such skills in the first place (the ice-hockey example) or preventing players from gaining the advantages earned through the use of such skills. Not all strategic fouls, however, fall within these two categories. First, and perhaps the less interesting kind of example for the issues involved here, are what might be called mixed or impure strategic fouls. Mixed strategic fouls occur when athletes play more aggressively at key points in the contest, knowingly taking on the increased risk of fouling because the price of fouling might be strategically worth paying. For example, basketball players on a team a few points behind in the last few minutes of a game might try to steal the ball from the offensive team but do so in a much more aggressive fashion than normal because, even if fouls are called, the offensive team might miss its foul shots. Here, the intention is to steal the ball, but the defenders are deliberately less inhibited in their attempts to get the ball because the price of being called for a foul is considered worth paying. Although it obviously will be hard to distinguish mixed from pure strategic fouls in practice, the difference nevertheless might be a real one. Because players who commit mixed fouls intend only (or at least intend mainly) to play aggressive defense, they arguably do not fall under the prohibition against strategic fouling. 4 A kind of case that more directly challenges Fraleigh s argument is a strategic foul that does not deprive an opponent of an advantage already gained but that prevents play from being executed in the first place, that is, preventive strategic fouls. Thus, a basketball player might foul the recipient of a pass before the ball handler can pass, dribble, or make a move to shoot. Clearly, if a team repeatedly fouls in such a way, a basketball game can have no flow and the game is spoiled. A clearly inferior team that continually fouls in the hope of making the game so lacking in flow that the superior skills of the opponent are negated might be justly criticized. It does not follow, though, that this is the only kind of case in which a strategic foul of this kind might be employed. Let us consider the point further. Judicious Strategic Fouls In particular, even if some preventive strategic fouls are open to legitimate moral criticism, it does not follow that the judicious use of strategic fouls of this sort in close games is similarly inappropriate. Consider the following example. Teams A and B are meeting for the third time this basketball season. Team A won the first game by 3 points and Team B the second game by 4. So far in the deciding contest of the season, the teams remain equally matched. Let us suppose that play so far in all three games clearly indicates that in terms of constitutive skills the teams are roughly equal in ability. In the present game, which determines a slot in the postseason playoff, the score is tied until the last few seconds when Team A scores a go-ahead field goal. B misses its chance to tie the game. Team A has a lead of 2 points and possession of the ball with 9 seconds left in the game. Team B s coach realizes that his team s chances of stealing the ball with just 9 seconds to play are remote. Players on Team A might just hold the ball and not even attempt to advance it up the court. The coach also knows, however, that

The Ethics of Strategic Fouling 93 although both teams are roughly equal in constitutive abilities, Team A s players are not good foul shooters. He orders his team to foul to stop the clock, reasoning that if the opponents miss their foul shots, Team B will have a chance to tie or win the game. Is this choice of strategy unethical? From the point of view of broad internalism (or interpretivism), we need to ask if basketball is a better game if judicious use of strategic fouling is regarded as appropriate. Although the answer certainly is debatable, it is not unreasonable to think that the game in question is a better one if it remains competitive until the end rather than ending anticlimactically by Team A simply holding the ball or not trying to advance it for the final 9 seconds. What about the point that contests should, as far as possible, be determined by use of constitutive rather than restorative skills? This principle is presumptively correct, but in the previous example, it already has been established that the opponents are roughly equal in constitutive skills. Neither is better than the other in that regard. Although the suggestion that a tie might be the fairest resolution has merit, a tie is not feasible in this context because only one team can advance to the playoffs. (See 6: pp. 144 158 for an argument defending the importance and legitimacy of ties in sports.) In such a case, if both teams are equal in terms of constitutive skills but one team is much better at exercising restorative skills, why isn t that team the better of the two? In other words, it is appropriate for differences in restorative skills to be tiebreakers. That is what Team B is trying to do by making Team A go to the foul line. After all, Team A could have improved its foul shooting. If foul shooting is its weakness, and the teams are equal in all other respects, why is it unethical for Team B to try to establish its superiority by exploiting the weakness of its opponent? Of course, this example is an extreme case, but it does suggest a more general thesis. According to this thesis, strategic fouls are not ethically inappropriate when the following conditions are satisfied. First, it is reasonable to believe that the opponents are roughly matched in constitutive skills. Second, the team that strategically fouls has no alternative strategy based on the use of constitutive skills that gives it a reasonable chance to win. Third, the penalty for the foul must reasonably be regarded as the price of action rather than punishment for it; that is, the penalty must provide reasonable compensation for the offended team. Last, the strategic foul must not take away an advantage in play that the opponents have already earned through the exercise of constitutive skills. For example, this would rule out tripping from behind a hockey player who has broken away on an open goal. (We might also add that teams not employ a series of strategic fouls designed to prevent opponents from exhibiting constitutive skills by disrupting the flow of the game.) One difficulty with this approach is that in my basketball example, it is not clear that the second condition is satisfied. Team B could try to double-team or trap players on Team A in an attempt to steal the ball. Such attempts sometimes are successful and involve the use of constitutive rather than restorative skills. But while this point has force, it is not clear that it applies fully to evenly matched teams with only a few seconds left in the game. A player on Team A might simply hold the ball and let the clock run out. So although this criticism does show that it might be difficult to determine when a strategic foul is judicious, I do not think it shows that strategic fouls in the kind of situation I have described in a basketball game are always injudicious or illegitimate.

94 SIMON Another difficulty, a critic might argue, is that the third condition is not satisfied. Penalties for many strategic fouls have been elevated to resemble punishments rather than prices. As we have seen, Fraleigh maintains that the evolution of the rules of basketball makes it clear that intentional strategic fouls are to be punished rather than purchased for a fair price (1: 172). Are the rules best interpreted as Fraleigh suggests? Perhaps so, but consider two difficulties for such a view. First, referees do not treat clearly strategic fouls as different from ordinary ones unless they are blatant, that is, risk injury to a player or take away an advantage earned by the use of constitutive skills, such as fouling a basketball player who has a breakaway layup from behind. Perhaps this is merely a conventionalist point, that referees, contrary to the intent of the rule makers, accept the (ethically indefensible) social convention that strategic fouling is part of the game. But two other possibilities exist. For one thing, referees might be unable to distinguish pure from what I called mixed strategic fouls and hence give the defenders the benefit of the doubt. Another interpretation is that the referees understand the rules as prohibiting certain kinds of strategic fouling but not as eliminating strategic fouling from the game. In fact, one structural feature of the rules of basketball supports this last suggestion. This is the rule that allows a losing team to in effect trade two foul shots for the opportunity to attempt to make a 3-point basket. That is, a losing basketball team can strategically foul, giving the opponent the opportunity to make two foul shots, and then when it gets possession of the ball, attempt a 3-point shot. In a sense, this feature of the rules encourages losing teams to commit strategic fouls in such situations because this strategy gives them a reasonable chance to come from behind, especially against opponents who do not shoot foul shots well. 5 Is this a flaw in the rules, or does it provide the opportunity for strategic choices and excitement in the last few minutes of a contest that actually enhance the game? If, as I have suggested, the judicious use of strategic fouls in basketball games raises the competitive intensity of the game, making it a better test for the players, and if restorative skills can help determine which of two otherwise evenly matched opponents is superior, such fouls can have a defensible place in the game. Conclusions By placing the issue of strategic fouling in the framework of interpretive or broad internalist theory and by applying Torres s distinction between constitutive and restorative skills, Fraleigh has raised the discussion to a new level. In my view, his argument is most successful when directed against the use of strategic fouling to prevent a superior opponent from exercising constitutive skills. Serial strategic fouling of this kind turns an athletic contest into a test of restorative rather than constitutive abilities and is wrong for just the reasons provided by Fraleigh and Torres. The use of strategic fouling to deprive an opponent of an advantage already earned through the exercise of constitutive skills also is morally questionable. Nonetheless, I have suggested that in specific contexts, particularly close games in basketball, the judicious use of preventive strategic fouls can be morally appropriate. For one thing, when the teams are evenly matched in constitutive skills, differences in restorative skills become relevant to determining which team

The Ethics of Strategic Fouling 95 has best met the test of the contest. Second, judicious strategic fouling in close basketball games raises the competitive intensity of the game and creates more of a test for the players than simply letting the leading team run out the clock. Third, some features of the rules create an incentive for teams to strategically foul at the end of close games in order to trade 2 points for a chance of making 3, thereby calling into question whether in such contexts foul shots really are intended to be punishments for forbidden behavior or the price of strategic choices. How far these points apply to strategic fouling in sports other than basketball is difficult to say and depends heavily on the individual features of each. I hope my discussion of strategic fouling, which does focus most fully on basketball, suggests how the analysis of such behavior in other sports might proceed, but that is a broader topic than can be considered here. In any case, Fraleigh s discussion undoubtedly sharpens the discussion and advances powerful arguments against the practice of strategic fouling. Whether he has shown that strategic fouling is always unethical, however, remains debatable. Notes 1 Typically, those who commit strategic fouls acknowledge that others may permissibly do the same and regard the practice as common to participants in the game. Thus, they do not employ a tactic the use of which they would deny to others. 2 Perhaps a similar point can be made about corner kicks in soccer, as well. 3 I owe this point to Warren Fraleigh, whom I would like to thank for helpful critical comments on an earlier draft. 4 Fraleigh also considers mixed strategic fouls acceptable (2: pp. 79 80). 5 Even if the offended team makes both foul shots and scores 2 points, the team that fouls can score a 3-point field goal, thereby cutting the opponent s lead by 1 point. By repeating the process, a lead of several points can be eliminated in a relatively short time. Fraleigh might argue that such repeated use of strategic fouls is not judicious and gives restorative skills like foul shooting too much of a role in determining the outcome. I agree here that judicious is somewhat open-ended and that it is not easy for someone who holds my position to say just where the cutoff lies. Even so, it does not follow that strategic fouls are never judiciously or defensibly employed. References 1. Fraleigh, Warren. Intentional Rules Violations One More Time. Journal of the Philosophy of Sport. XXX, 2003, 166-176. 2. Fraleigh, Warren. Right Actions in Sport. Champaign, IL: Human Kinetics, 1984. 3. Simon, Robert L. Fair Play. 2nd ed. Boulder, CO: Westview Press, 2004. 4. Simon, Robert L. Internalism and Internal Values in Sport. Journal of the Philosophy of Sport. XXVII, 1999, 1-16. 5. Torres, Cesar R. What Counts as Part of the Game? A Look at Skills. Journal of the Philosophy of Sport. XXVII, 2000, 81-92. 6. Torres, Cesar R., and Douglas McLaughlin. Indigestion: An Apology for Ties. Journal of the Philosophy of Sport. XXX, 2003, 144-158.