By: David Gardy Ermann
After the Kansas City Chiefs vs. Buffalo Bills divisional round thriller on January 23, 2022 ended on a walk-off touchdown pass from Patrick Mahomes to Travis Kelce on the opening drive of overtime, the sports media world reacted with headlines popping up like “The NFL’s Overtime Rule Is Under Attack After a Coin Flip Decided a Classic” from the Wall Street Journal and “Chiefs-Bills masterpiece decided on a coin flip shows NFL’s overtime rule is awful and must be fixed” from USA Today. The overtime rules need improvement, and that need was on full display when the Buffalo Bills offense never even took the field in overtime.
Under the current overtime rules, “the referee will toss a coin to determine which team will possess the ball first in overtime.” In addition to procedural rules, such as each team getting two timeouts and there being no coach’s challenges, the most pertinent rules are that: (1) each team must possess, or have the opportunity to possess, the ball; except (2) if the team that gets the ball first scores a touchdown on the opening possession; and (3) the game is sudden death play and continues until a winner is determined. It is the exception that has caused most of the recent outcry. Because the team who gets the ball first is determined by a coin toss, the exception essentially provides that the team who loses the coin toss may never get a shot at being on offense in overtime.
Coaches, players, commentators, and fans started rallying around a change in this part of the NFL’s overtime rules. For example, Andy Reid, the coach of the winning Kansas City Chiefs, said after the game that he “wouldn’t be opposed to it” and that “[t]o make things equal, it probably needs to be able to hit both offenses, both defenses.” Some NFL players spoke up after the Chiefs/Bills game, including New York Giants Running Back Saquon Barkley, who tweeted, “So whoever win the coin toss win the game?” and Detroit Lions Wide Receiver Amon-Ra St. Brown who tweeted, “Great game by both teams . . . but the overtime rules have got to change!! No coin flip should have that much power.” ESPN Commentator Stephen A. Smith called the overtime rules “ridiculous” after the game. And NFL fans everywhere are calling for a change too.
One thing is certain – the overtime rules do not give both teams an equally fair chance at winning. There have been 12 playoff games that have gone to overtime under the current rules, and the teams that won the coin toss are 10-2 in those playoff games. Additionally, 7 of those 10 winners won by way of a walk-off touchdown on the opening drive.
In this article, I look to the U.S. legal system, an institution rooted in the ideals of fairness and justice for all, as a source of inspiration and as a model for amending the NFL overtime rules. After all, opposing NFL teams are not so different from adverse parties in a litigation. For example, an individual NFL game can be compared to the summary judgment context in litigation. Both plaintiff and defendant may file a motion for summary judgment with the court (each a “Motion for Summary Judgment”), a motion which itself is dispositive and whereby each party could ask the court to eliminate some or all of the claims at issue in the case. In other words, parties file their Motion for Summary Judgment to “win” on some or all of the claims. The Motions for Summary Judgment are comparable to NFL teams entering the contest, they each showed up on game day with the intention of winning.
In the legal context, the party who files the Motion for Summary Judgment is aptly-called the moving party, or the movant. This is the party seeking to “win” on some or all of the claims. The other party is referred to as the non-moving party, or the non-movant. This is the party seeking to stop the movant from “winning” on any and all claims. At an appropriate time, either party may move for summary judgment, or both parties may do so. This too is similar to an NFL game. The team attempting to move the ball and score points is called the offense. And, of course, the defense is attempting to stop the offense from scoring points.
For sake of the analogy, let’s say that both the plaintiff and the defendant in a litigation each file a Motion for Summary Judgment on the merits for the entire case. Each party is then going to lay out their arguments for why the court should rule in their favor in their respective briefs in support of their Motion for Summary Judgment (each a “Brief in Support”). The Briefs in Support are comparable to playing offense. This is when teams will try to score points.
In the legal system, courts allow non-moving parties to file a response in opposition to the moving party’s Brief in Support (a “Brief in Opposition”). Similarly, the Briefs in Opposition are comparable to playing defense. This is when teams will try to stop the other team from scoring points. The back-and-forth motion practice between litigants is very much like the back-and-forth gameplay between NFL teams, jockeying to outscore the adversary before time is up.
In the legal context, if there are outstanding issues that should be addressed after the Briefs in Opposition have been filed, the party who filed the Motion for Summary Judgment may address new issues raised in the non-moving party’s Brief in Opposition in a reply brief (a “Reply Brief”). (In some courts, Reply Briefs may be filed in the ordinary course and in other courts, parties will need to seek leave from the court to file a Reply Brief. In either instance, the purpose of a Reply Brief is for outstanding issues to be addressed before a court’s final determination.) If there are no outstanding issues to be addressed after the Briefs in Opposition, the court will rule on the Motions for Summary Judgment. Similarly, in NFL games, if at the end of regulation, there is nothing else needed to determine the winner (i.e. one team holds a lead over the other team) then the game is over. However, if there are issues that remain at the end of regulation, then overtime is needed, just as Reply Briefs may be needed in the legal process. The Reply Brief is like going back on offense to persuade the court of any new issues that were not addressed in the original Brief in Support. Just like how each party to a litigation would be able to file a Reply Brief in response to their adversary’s Brief in Opposition, both NFL teams should have a chance to go back on offense, at least one more time, until a winner can be determined.
If competing NFL teams are indeed analogous to the two parties in litigation who filed competing Motions for Summary Judgment, then NFL teams should not be placed into positions that would be unjust for parties in a litigation. Instead, NFL teams should each get a chance to play offense—or file their Reply Brief—in overtime. Courts allow each party to be heard and the NFL should allow each offense to be heard.
How could that work? Well, it could take a few forms. One example could be similar to the NBA’s overtime rules, where an additional quarter is played or additional quarters are played until one team holds a lead at the end of such additional quarters. The additional quarter(s) need not even be 15 minutes like a standard NFL quarter, it could be 10 minutes instead. In fact, courts typically require Reply Briefs be shorter in page length than Briefs in Support and Briefs in Opposition.
Another example could be similar to NCAA football’s overtime rules, where each team gets one possession on offense and one possession on defense and the team with more points wins. If the teams have an equal number of points after both have played on offense and on defense, then they play on offense and defense again and so on until one team has more points. This system gives both teams the same number of opportunities on both offense and defense. In fact, going back-and-forth on offense and defense is similar to how motion practice could play out too. Some courts might allow a non-moving party (i.e. the team playing defense) to file a sur-response and the moving party (i.e. the team playing offense) to then file a sur-reply. The sur-response is a response to the Reply Brief (like a Brief in Opposition, except instead of responding to the Brief in Support, the sur-response addresses the Reply Brief) and the sur-reply is a response to that sur-response on outstanding issues that still need to be addressed.
A final example could be a variation on the NCAA’s system, but where both teams each receive one possession that starts with a kickoff return. Like the above model, this too would continue until one team holds a lead after both teams have had an equal number of opportunities to receive a kickoff.
David Gardy Ermann is an Associate at Goodwin. The information contained in this article reflects the opinion(s) of the author and is not an official opinion of Goodwin. To Professor Gwen Gordon for teaching me how to teach, and for encouraging a generation to think critically and to always remain intellectually curious.
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