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The Subtle Problem with Targeting: Turning officials into bad lawyers interpreting an even worse law

Derick E. Hingle-USA TODAY Sports

The NCAA just can’t seem to get this targeting rule nailed down. Last week, the NCAA announced some tweaks to the most subjective and inconsistently-thrown flag in the game.

First, let’s see what has been changed with the terms of rule. Blindside blocks, for one. Not only will they be penalized, but the vicious crack-back is about to be a thing of the past, and can itself constitute the targeting of a defenseless player. Additionally, there is progressive punishment for infractions.

And, finally, there is a poison pill in here that is getting too little attention — the requirement that all aspects of the targeting call be confirmed: no longer can a targeting call simply be upheld. The replay and field officials must make a determination that every element of the rule is met. If it’s not, the penalty is waived.

Yet, this is going to be exceptionally difficult to prove. And, that difficulty goes to the heart of what’s wrong with a rule that has been modified four times in its seven-year existence.

Defining the Elements, Burdens of Proof, and Bad Presumptions

Defenselessness

Under the ever-expanding rule, there are nine specifically enumerated classes of players deemed “defenseless,” as well as a dragnet catch-all:

A defenseless player is one who because of his physical position and focus of concentration is especially vulnerable to injury. When in question, a player is defenseless. Examples of defenseless players include but are not limited to: A player in the act of or just after throwing a pass.

A receiver attempting to catch a forward pass or in position to receive a backward pass, or one who has completed a catch and has not had time to protect himself or has not clearly become a ball carrier.

A kicker in the act of or just after kicking a ball, or during the kick or the return.

A kick returner attempting to catch or recover a kick, or one who has completed a catch or recovery and has not had time to protect himself or has not clearly become a ball carrier.

A player on the ground.

A player obviously out of the play.

A player who receives a blind-side block. A blind-side block is one where a player obviously does not see the opposing blocker approaching him.

A ball carrier already in the grasp of an opponent and whose forward progress has been stopped.

A quarterback any time after a change of possession.

A ball carrier who has obviously given himself up and is sliding feet-first

There are two here that are of particular concern: Blindside blocks — gone are the days of “keeping your head on a swivel,” and the emphasis on quarterbacks as a protected class — “a player in the act of or just after throwing a pass.”

This play by Quinnen Williams, for instance, is almost certainly to be called targeting in 2019. And, maybe that’s for the best; it certainly would brings the college game more in line with the NFL — he’ll absolutely lose some money if it he tries this on Sundays. But, couldn’t every violent hit in the upper body during the act of throwing almost certainly be considered as against a helpless player by definition? As stated by the very terms of the rule, the presumption is helplessness.

But on film? That answer becomes a firm “maybe.”

Take a look at the clip below and tell me how many players you see that could be deemed helpless.

I suspect we all will have a different definition of defenseless here based on the film. For instance, your mental shorthand may define it as “during that act of all throwing motions”; thus, where the quarterback is not tucking or turtling. you have a defenseless signal caller. There is no guidance from the rule, no illustrations whatsoever...just a presumption of defenselessness.

It is not the last bad presumption we’ll see in this stinker of awful legalese.

Blindside Blocks as Targeting

Next, we get to blindside blocks, an offense that constitutes a personal foul now, and which may itself be defined as targeting under the new rules — and this is one I suspect will be the most maddeningly called infraction on the field.

The NCAA’s expansion of the rule to include blindside blocks further mirrors the NFL’s changes in 2017. However, it would be foolish to think that it won’t add even more subjectively close calls and razor-thin plays for review and sew confusion among players, coaches and official.

There are some obvious cases we can look at, such as when Equanimeous St. Brown tried to end Bobby McCain’s life.

But, for every easy flag, there are half a dozen of these gems a game.

Watch.

Is that player defenseless? Was the hit truly blindside? Your guess in April is about as good as a field judge’s will be in October.

And, we are by no means done. Even when we’ve sussed out the fuzziness of defenselessness, we then still have to look to the other components of the rule.

Inference of Mental State from Physical Actions

While defenselessness of the opponent isn’t the only condition for targeting, it is the predicate. There are also objective acts (what part of the player is struck and the physical actions performed by the defender) that are in turn used to divine a subjective component that gets often overlooked — the defender’s intent.

Check out the rule below, and I have emphasized the important part:

No player shall target and make forcible contact to the head or neck area of a defenseless opponent (See Note 2 below) with the helmet, forearm, hand, fist, elbow or shoulder. This foul requires that there be at least one indicator of targeting (See Note 1 below). When in question, it is a foul (Rules 2-27-14 and 9-6). (A.R. 9-1-4-I-VI)

Note 1: “Targeting” means that a player takes aim at an opponent for purposes of attacking with forcible contact that goes beyond making a legal tackle or a legal block or playing the ball. Some indicators of targeting include but are not limited to:

Launch—a player leaving his feet to attack an opponent by an upward and forward thrust of the body to make forcible contact in the head or neck area

A crouch followed by an upward and forward thrust to attack with forcible contact at the head or neck area, even though one or both feet are still on the ground

Leading with helmet, shoulder, forearm, fist, hand or elbow to attack with forcible contact at the head or neck area

Lowering the head before attacking by initiating forcible contact with the crown of the helmet

This is not the proverbial laundry list, merely illustrations; other contact can and will be deemed as against a defenseless player. The rule requires there be at least one indicator of targeting, and then directs officials to this open-ended list of examples — with the officials free to define their own set of actions they consider to be an intent to target.

Thus, the subjective intent, the mental state of the defender — that is, using contact more than is needed for a football play, is inferred by the actions above, which again should be noted, are not part of a serial list, rather examples.

Does that strike you as weird? It should. And in a lot of respects it mirrors real-world centuries-old common law murder: Every crime must possess a mental state and an act. And, for common law murder to be found, the defendant’s conduct must be “reckless or willful, wanton — the actions of a depraved heart.” That’s a mouthful, to be sure, and almost impossible to prove. So, we instead infer that intent, the “depraved heart” from the actions of the accused. Many statutes spell them out (and the classic case is driving a car onto a sidewalk), but in most cases, it is up to the 12 people in the box to determine whether the actions themselves showed the intent. Circular as hell, to be sure.

And all of this still doesn’t even get into the vagaries of the rule’s edict that a defender must be “taking aim.” The very act of tackling is to take aim. In fact, if a defender isn’t taking aim, then they are not looking at their target and/or the helmet is down...which again is targeting.

Maddening, isn’t it? Like Justice Potter Stewart said of obscene material, “I know it when I see it.”

Well, this is an obscenely-written rule.

Piss-Poor Drafting and Progressive Punishment

We gripe about the subjective nature of targeting — and in many cases rightly. It seems no one knows what does or does not constitute a violation in borderline cases. But, there two important points here: that subjectivity is very much a feature of the rule, not a bug: it is in in the firm discretion of the officials as to what actions would be forcible contact “that goes beyond making a legal tackle or a legal block or playing the ball.”

Which in turn brings us to the second point. There is no benefit of the doubt here; there are no true borderline cases. By the very terms of the rule, in all cases of doubt, players shall be deemed helpless and it shall be divined that an infraction has occurred — the contact was forcible beyond that which is required to make a play.

And all of those presumptions and subjectivity are an issue to be sure, since there are now progressive penalties in place. If a player has received his third targeting foul of the season, then the player will be required to miss the entire next contest. Thus a first-quarter infraction on a repeat offender could result in the player missing a full game-and-a-half of action.

That sounds good on paper, to be sure. We don’t want the dirtiest of players headhunting every week. We want to deter cranial kill shots. But, when that punishment rides shotgun with a built-in presumption of guilt in place, and a built-in presumption of defenselessness, all subject to a rule that that offers few non-circuitous substantive definitions, and which frankly no one fully understands, it underscores the serious problem here.

An already woefully-written rule has become even more of a morass through constant tinkering. In turn, it has turned field officials into lay judges and juries, with the worst sort of poorly-drafted statutory guidance, a baked-in presumption of guilt, and all exercised at the discretion of poorly-paid volunteers — with the fates and future careers and reputations of players and multi-million-dollar programs at stake.

Nothing about the changes here do anything to mitigate those underlying problems; if nothing else, the waters have become even murkier.

It is time for a drastic rewrite of this rule, and a subsequent unlearning. Sometimes piss-poor drafting betrays sloppy thinking or rushed execution. And sometimes it is just piss-poor drafting.

The NCAA needs to figure out which applies and correct it.

So, this is your homework assignment for the day: Tell us how you would fix targeting. Does there even need to be a targeting rule in place? Can it even be fixed? What are the strengths of the current rule? What landmines do you foresee with the recent rule changes?

There is a lot to think about.

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