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Feature Article – An Unsporting DQ

I don’t know what really happened in Charles Gindy’s round six match of Worlds. He assures me that he did not cheat, and based on what I have heard, I believe him. I was initially going to ask him what exactly happened and report it to you here, but I have reconsidered and asked him not to provide his story to me. The DCI is investigating this incident and even the risk of a failure of memory, misinterpreted as a deliberate lie, is too great a risk for me to ask Charles to take on. I spoke to Charles about whether he would want one more article discussing this incident, but I deliberately did not discuss with him the events that took place. Below, I give treatment to several possible (and rumored) versions of what happened, including the version on the Wizards site.

The game state:

One version of the story (the “official” version published by Wizards) is that Charles had a 3/3 Wolf untapped and a 2/2 Wolf untapped and his opponent had a creature of unknown size targeted by Charles’ Master of the Wild Hunt. I assume the targeted creature was a 2/2 because every person who was at Worlds that I have spoken to has said it was a 2/2.

A second version of the story I have heard is that Gindy’s only UNTAPPED Wolf was a 3/3. Other wolves were attacking and tapped. His opponent’s creature was a 2/2, and it got targeted by Gindy’s Master of the Wild Hunt.

Gindy’s mental state:
In every account I have heard, Gindy was confused about how Master of the Wild Hunt worked. He believed that tapped wolves, and not just untapped wolves as the card reads, participated in the taking of and dealing of damage.

In some versions of the story, Gindy honestly believed his opponent chose to assign damage in a non-lethal way, either 1 damage each to two 2/2s, or 2 damage to a 3/3 Wolf.

In some versions of the story, Gindy knew that his opponent was not assigning any damage at all, but deliberately chose not to correct this perceived mistake.
As you will see below, I don’t think Charles should have been disqualified under any of the above versions of the facts.

I’m not saying Charles intended to cheat, but even if he did intent to cheat, but the gamestate was never incorrect, it is not a violation.

Leaving for a little later the issue of whether the gamestate was correct, I’d like to discuss the more general question: Is it illegal to intend to cheat even when your actions are not cheating? If I think it is illegal to look at my sideboard, and I sneak a peek, am I cheating even though it is legal to look at your sideboard?

The tricky issue of intent to violate a rule that you are in fact not violating has been addressed in various criminal courts in the United States. Courts usually use the terms “Factual Impossibility” and “Legal Impossibility” to describe the issue, but what exactly those terms mean, and the dividing line between them, is not agreed upon, so I will attempt to avoid the terminology.

A game of Magic is certainly the same context as a criminal trial, and these cases are in no way binding on the DCI or Gindy, but it would be foolish to dismiss decades of legal reasoning in which judges struggled with the same issues of fairness in similar (though not identical) contexts without even looking at their reasoning.

It is illegal to sell or possess heroin in every jurisdiction in the U.S. But is it illegal for someone to possess a substance that they think is heroin (with the intent to sell it as such), but is in fact some non-narcotic substance that merely looks like heroin? Courts may not all agree, but one federal court in Texas addressing this exact scenario has given us a well-reasoned opinion arguing that this conduct cannot be punished, not even as an “attempted” crime. (When you find a Texas court being lenient on criminal defendants, always be on the lookout for a fair rule, since some would argue there is a bias there in the other direction.)

First, the court describes the amusing and inconsistent examples of courts addressing this issue.

“[Examples where the court held the defendant could not be convicted:] (1) A person who accepts goods which he believes to be stolen, but which are not in fact stolen, is not guilty of attempting to receive stolen goods. [Citation]. (2) A person who offers a bribe to one whom he believes to be a juror, but who was not a juror, is not guilty of attempting to bribe a juror. [Citation]. (3) A hunter who shoots a stuffed deer, believing it to be alive, is not guilty of attempting to shoot a deer out of season. [Citation].

[Examples where the court held the defendant could be convicted:] (1) A person who fires a gun at a bed, thinking it to be occupied by a man, is guilty of attempted murder, even though the bed is empty. [Citation]. (2) A person who possesses a substance thinking it is narcotics, is guilty of attempted possession, notwithstanding that the substance is in fact talcum powder. [Citation]. (3) A person who introduces instruments into a woman for the purpose of producing an abortion is guilty of attempting an abortion, even though the woman is not pregnant. [Citation].
United States v. Oviedo, 525 F.2d 881, 883 (5th Cir. Tex. 1976)

Since the precedent is unclear, the court had to come to its own decision based on its own view of what the law ought to be. In deciding that the defendant could not be convicted of a crime, regardless of his intent to distribute heroin, the court eloquently summarized its reasoning in these 15 words:
“[C]onviction upon proof of mere intent provides too great a possibility of speculation and abuse.”
(emphasis added).

The prosecution disagreed, arguing that since possession of heroin without any admission can support a conviction for intent to distribute heroin, an admission of intent to distribute should be enough to support a conviction as well, even without possession. Rejecting this argument, the court again noted the evidentiary significance of having something more than just the defendant’s state of mind:

“However, if we convict the defendant of attempting to sell heroin for the sale of a non-narcotic substance, we eliminate an objective element that has major evidentiary significance and we increase the risk of mistaken conclusions that the defendant believed the goods were narcotics.”
United States v. Oviedo, 525 F.2d 881, 885 (5th Cir. Tex. 1976)

This same reasoning applies equally well, if not better, to the DCI’s investigation of a violation and subsequent punishment. When a set of procedures relies too heavily on a judge’s ability to determine the mental state of the player, it is dangerous. Any system is sure to result in some combination of accurate determinations, false positives, and false negatives, when determining whether someone has cheated, but we must do two things:

1) Try and be as accurate as we can, and,
2) Presume innocence rather than presume guilt.

Regarding the second element, we should prefer setting a guilty person free to convicting an innocent person. For all its shortcomings, the American legal system is generally a success in this regard. The Magic community is negatively affected when a cheater receives no punishment, but there is no greater injustice in our game than the penalizing of an innocent player. With this goal in mind, we should make choices in drafting and applying the rules to account for this preference. Not allowing disqualification based solely on a player’s state of mind is one such choice we should make.

Relevant provisions in the Magic Floor Rules
1.10 Players
Players are responsible for:

Maintaining a clear and legal game state.

Bringing to a judge’s attention any rules or policy infraction they notice in their matches.

Being familiar with the rules contained within this document.
4.1 Player Communication
Communication between players is essential to the successful play of any game that involves virtual objects or hidden information. While bluffing may be an aspect of games, there need to be clear lines as to what is, and is not, acceptable for players to say or otherwise represent. Officials and highly competitive players should understand the line between bluffing and fraud. This will confirm expectations of both sporting and competitive players during a game.

The philosophy of the DCI is that a player should have an advantage due to better understanding of the rules of a game, greater awareness of the interactions in the current game state, and superior tactical planning. Players are under no obligation to assist their opponents in playing the game. Regardless of anything else, players are expected to treat their opponents politely and with respect. Failure to do so may lead to Unsporting Conduct penalties.

There are three categories of information: free, derived and private.

Free information is so called because all players are entitled access to this information without contamination or omissions made by his or her opponent. If a player is ever unable or unwilling to provide free information to an opponent that has requested it, he or she should call a judge and explain the situation. Free Information includes:

Details of current game actions and past game actions that still affect the game state.
The name of any object in a public zone.
The physical status (tapped/flipped) and current zone of any object.
Player life totals and the game score of the current match.

Derived information is information to which all players are permitted, but opponents are not obliged to assist in determining and may require some skill or calculation to determine. Derived Information includes:

The number of any type of objects present in any game zone.
All characteristics of objects in public zones that are not defined as free information.
Game Rules, Tournament Policy, Oracle content and any other official information pertaining to the current tournament. Cards are considered to have their Oracle text printed on them.

Private information is so called because players have access to this information only if they are able to determine it from the current visual game state or their own record of previous game actions.

Any information that is not free or derived is automatically private information.

The following rules govern player communication:
Players must answer all questions asked of them by a judge completely and honestly, regardless of the type of information requested. Players may request to do so away from the match.
Players may not represent derived or free information incorrectly.
Players must answer completely and honestly any specific questions pertaining to free information.
At Regular REL, all derived information is instead considered free.

[NOTES ON 1.10 and 4.1: Players are made responsible for maintaining a legal gamestate, and players must not make misrepresentations to their opponent about free or derived information. If a gamestate is legal, and arguably even if only the opponent’s perception is of a legal gamestate, a player is under no obligation to speak. Silence, as with Gindy’s silence during his match, is only punishable when the gamestate is illegal.]

4.2 Tournament Shortcuts
A tournament shortcut is an action taken by players to skip parts of the technical play sequence without explicitly announcing them. Tournament shortcuts are essential for the smooth play of a game, as they allow players to play in a clear fashion without getting bogged down in the minutia of the rules.

A player is not allowed to use a previously undeclared tournament shortcut, or to modify an in-use tournament shortcut without announcing the modification, in order to create ambiguity in the game.”

If Gindy didn’t intend to cheat, he just assumed his opponent misplayed in assigning the damage. He should not have been penalized because the gamestate was not illegal and no misrepresentations were made.

If Gindy had only a 3/3 Wolf untapped:

If Gindy’s only untapped Wolf at the time of the activation of his Master of the Wild Hunt was a 3/3 creature, then the gamestate must be that that creature had two damage on it. There is no infraction to report under Rule 1.10. The gamestate is as is it supposed to be. One might argue that Gindy needed to correct the gamestate and indicate that the Wolf has 2 damage on it, but that is already what his opponent thought. No one should have a duty to inform the opponent of what he/she already knows. The gamestate was clear to each player, though they had a differing view on what it was. Since Charles’ opponent knew the correct gamestate, Charles has not committed a violation. Tricking yourself should not be an infraction. This is where the above discussion of intent comes into play. There is an ambiguity in the DCI floor rules, just as there is in the distribution of narcotics statute in Texas, about whether one can break the rules just by thinking they are breaking the rules. As you know from above, I would argue that Gindy should not be punished for his mental state unless some illegal action has occurred. Gindy’s opponent was never mistaken about the gamestate, and nothing about the gamestate itself was mistaken, so Rule 1.10 does not apply. Gindy has not represented anything about the gamestate (he was silent), so Rule 4.1 is not implicated.

If Gindy had a 3/3 Wolf and a 2/2 Wolf untapped:
If Gindy had a 3/3 and a 2/2 entering the “Wolf arena” with his opponent’s 2/2, he should still be permitted to assume that the opponent assigned one damage to each Wolf or two damage to the 3/3 Wolf. Keep in mind that we know Gindy asked his opponent after the match about why he chose not to kill a 2/2. This is strong evidence that Gindy assumed his opponent had known what the Master did and chose not to kill anything. Is this assumption foolish? Perhaps. Would someone trying to cheat and get away with it bring up the incident after the match? Almost certainly not.

Gindy did not say anything during the game, he did not make any representations, so Rule 4.1 is again not implicated. Rule 1.10 is a little trickier, as we don’t really know what Gindy’s opponent thought had happened. Again, based on Gindy’s post-match question, we have to assume he thought his opponent had chosen not to kill a Wolf. I will argue here that the Tourmament Shorcuts rule, Rule 4.2, allows Gindy and his opponent to tacitly agree that neither Wolf dies, without explicitly stating how much damage each Wolf has taken. Again, here is the text of the rule:

“4.2 Tournament Shortcuts
A tournament shortcut is an action taken by players to skip parts of the technical play sequence without explicitly announcing them. Tournament shortcuts are essential for the smooth play of a game, as they allow players to play in a clear fashion without getting bogged down in the minutia of the rules.”

 

A player is not allowed to use a previously undeclared tournament shortcut, or to modify an in-use tournament shortcut without announcing the modification, in order to create ambiguity in the game.”

If I attack with a 2/2 Grizzly Bear into my opponent’s 3/3 Hill Giant, he blocks, and I place my Bear in the graveyard, no one has to state that the Hill Giant has received two damage. Thus, damage on creatures is not information that requires explicit tracking. The tracking may be done implicitly, via a shortcut.

If I attack with two Grizzly Bears, and my opponent says “blocks one of them with Hill Giant,” it is legal for me to put either one in the graveyard and move on with the turn. This is also an accepted shortcut. Since the timestamp of which creature came into play first is generally irrelevant information, we are allowed to ignore it and make the decision for our opponent, assuming he does not object to the shortcut. No ambiguity is created in the game, even if the players lose track of the whether the surviving bear is the one that came into play on turn two or the one that came into play on turn three. If I am mistaken about this application of the shortcut rule, then the shortcut rule is not capturing the shortcuts players actually use at every level of play. Irrelevant information is permitted to be ambiguous.
The rules do not make me keep track of the order of my library while I am searching it, even though that order could be relevant if I have a Panglacial Wurm in my library and a Millikin in play. Why am I allowed to use a shortcut to create ambiguity about the order of my library? Because in that particular gamestate, the information is irrelevant and need not be tracked.

This is how shortcuts in Magic work. Damage on creatures can be implicitly tracked, and irrelevant aspects of the gamestate can be ignored and shortcut.

Gindy is permitted to assume his opponent dealt damage to his wolves in some non-lethal way (1 to each or 2 to the 3/3), as a shortcut, unless his opponent objects, and unless the damage on the creatures is relevant and ambiguous. Gindy’s opponent did not object, and just like the searching the library and rearranging it example, the damage on the wolves was ambiguous between one on each Wolf or two on the 3/3 Wolf, but not relevant. Gindy’s opponent’s tacit approval of the wolves staying in play leaves no ambiguity about whether the 2/2 took lethal damage (it did not), and the other ways of assigning 2 damage can be ignored as a shortcut because they are irrelevant, just like many many other aspects of the gamestate.

Unsporting Conduct:

“5.4 Unsporting Conduct
Unsporting conduct will not be tolerated at any time. Tournament participants must behave in a polite and respectful manner. Unsporting conduct includes, but is not limited to:

Using profanity
Acting in a threatening manner
Arguing with, acting belligerently toward, or harassing tournament officials, players or spectators.
Failure to follow the instructions of a tournament official.”

One of the things that makes this case easier than those confronted by the criminal courts is that the floor rules, as far as I can tell, don’t have an “attempt” violation that can turn a failed effort to violate any rule into a violation itself.

To the extent the Unsporting Conduct rule could be read this way, it should be more explicit so that players know what to expect. Even without such clarity, United States v. Oviedo presents sound reasoning for interpreting the Unsporting Conduct rule as requiring something more than mere intent.

Sheldon Menery, in his blurb on the Wizards website, did not in any way state that a penalty was handed out for Unsporting Conduct. For this reason, as well as those articulated above regarding the danger of penalizing purely mental infractions, I do not believe the Unsporting Conduct rule was or should have been applied in this case.

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