Referees should be formally given the right to use their discretion when it comes to fouls in the area – and outside it

Emmanuel Eboué's witless stoppage-time barge of Lucas Leiva on Sunday has been held up as a classic demonstration of Arsenal's inability to think straight when push comes to shove. It is also a prime example of something else: a foul in the area that should not be punished with a penalty. The referee did not get it wrong on Sunday. Rather, the law is wrong and should be changed.

Here's why: a spot-kick – ie a prime invitation to score a goal – was excessive punishment for an offence that merely denied Lucas the chance to retain possession long enough to wait for a team-mate to manoeuvre himself into a position to receive a pass and perhaps cross the ball. A direct free-kick in the area would have fit the crime better. But that option was not available to the official, who for offences in the area must award either a penalty or, in very limited cases, an indirect free-kick.

This is too extreme and, indeed, incites players to tumble like a shopper in a supermarket who spots a tomato on the floor and "slips" on it, then writhes in torment while speed-dialling his lawyer. Referees implicitly acknowledge that a penalty is too severe a sanction for some infringements in the area, which is why they often overlook fouls for which they would have blown if they had occurred elsewhere on the pitch – perhaps that was Lee Probert's reasoning on Tuesday night when he decided to ignore Anderson's lubberly tripping of Peter Lovenkrands?

Rather than be lambasted for tweaking the rules to better serve justice, referees should be formally given the right to use their discretion when it comes to fouls in the area, awarding either a direct free-kick or a penalty, depending on how likely it was that a goalscoring chance would have ensued (as well, perhaps, as on the degree of malice).

Just as many fouls in the area should not result in penalties, there are fouls that take place outside the area for which spot-kicks should be awarded. When Irishman William McCrum lobbied for the introduction of penalty kicks in 1890, he was not seeking to punish defenders who inadvertently handle the ball or bump into a forward who's going nowhere, he was striving to foil players whose cynicism or recklessness thwarts obvious goalscoring chances.

McCrum was lambasted for daring to suggest that Victorian Englanders would be so immoral as to resort to such chicanery, CB Fry famously protesting: "The lines marking a penalty area are a disgrace to the playing fields of a public school. It is a standing insult to sportsmen to have to play under a rule which assumes that players intend to trip, hack and push their opponents and to behave like cads of the most unscrupulous kidney."

Nowadays, of course, we accept that fields are awash with cads of the most unscrupulous kidney – and they don't confine their caddishness to the penalty area. In fact, they make a virtue out of pursuing their vice just outside the area.

For a defender who has no chance of getting the ball, thwarting an almost certain goal by felling a forward before he reaches the area – à la Ronald Koeman against England in 1993 or Willie Young on Paul Allen in the 1980 FA Cup final – is a triumph on a par with that of a barrister who successfully exploits a loophole to keep a drunk-driver on the road. Koeman and Young would likely be shown a red card now (assuming the referee is competent, which he was not in that Holland game) but that is not sufficient deterrent, particularly if the game is reaching the closing minutes, when being reduced to 10 men is an irrelevant hitch rather than a handicap.

If the offender was sent off and the goal-scoring opportunity was restored to the victimised team via a penalty kick (rather than a free-kick for which the fouler's team can erect a wall) there would be less incentive to foul, no loophole through which to wriggle.