FIDE Rules on ICGA - Rybka controversy

[Jeremy Bernstein]

The report is, as far as I can tell, still not public, although the involved parties have received it. My understanding is that the "Vas Is Innocent" movement (Ris, Schröder, Whittington, et al) filed an ethics complaint against the ICGA for the manner in which they prosecuted the Rybka matter. This has been going on for a long time now, I hope this conclusory report brings some closure to the matter, one way or the other. Comments from both sides indicate some amount of satisfaction, whatever that could possibly indicate...

[BB+]

Both sides always like to claim victory. For instance, in the Falko Bindrich case a few years ago, the German chess league (DSB) termed it a "formal defect" (formalen Gründen) in their statutes. Any sanctions were only imposable by the Bundesliga, as there was no "individual contract submission" (einzelvertragliche Unterwerfung) to DSB rules by participation in the event (or at least there was nothing "conclusive" from a legal standpoint that there was any such submission).

Anyway, in the given case I seriously doubt there will be any grand closure. Mr. Schröder has previously announced:

After the FIDE has ruled (and no matter what the outcome) we actively will seek media attention and publicly ask for your resignation and we will suggest Jaap van den Herik to take over and reform the computer chess branch of the ICGA.

One might note that the 3-month deadline for submission of candidates for ICGA President (to be elected at the triennial meeting this July in Leiden) passed quite recently.

[hyatt]

I asked David to check with the EC. Their response was that we can discuss this publicly all we want. We are not supposed to provide the entire 17 page document as FIDE will eventually post whatever parts they see fit.

So in a nutshell, the complaint was dismissed, FIDE did not find any FIDE rules violations or unfairness in the investigative process. FIDE's only quibble was (to me) expected, namely that our rules do not explicitly state potential punishments for rule violations, something we need to address. They do NOT, as opposed to Chris and Ed's view, not allow lifetime bans. They only want to see a written statement so that potential competitors know the risk before they undertake violating a rule. They also asked the ICGA to reconsider the life-time ban for this reason. They did not direct the ICGA to reconsider, they did not direct the ICGA to remove the ban.

Seems like the end of the story to me. This was a unanimous decision by the EC with no dissenting view reported.

[BB+]

They also asked the ICGA to reconsider the life-time ban for this reason. They did not direct the ICGA to reconsider, they did not direct the ICGA to remove the ban.

I have no inside information, but If Rajlich wants to play in Leiden in a couple of months, he can petition the ICGA Board, and I would guess that most likely the Panel recommendation would be followed, that the "lifetime" ban persist

until he can satisfy the ICGA that [his programs] are no longer derivatives
and that he has satisfied the conditions of any other penalties the ICGA imposes

in particular

the return of trophies and prize funds to the ICGA

Note that Rajlich won 1000 euros in 2010 (though half of this was offset by the entry fee, perhaps he can "deduct expenses" like the infamous Dutch bank robber).

Incidentally, the recent Anti-Cheating Guidelines of FIDE say in 5.A.3 under "Further Remedies" that

In case the offender has received a prize, he/she shall immediately return the prize to the tournament organizers.
Failure to do so shall be considered as a second violation of anti-cheating regulations ...

[hyatt]

His FIDE ethics complaint has probably exposed HIM to multiple ethics violations as well.

Can you say "strelka"?

[syzygy]

They did not direct the ICGA to reconsider, they did not direct the ICGA to remove the ban.

I don't know the exact legal framework, but it seems likely that the ethics commission has no power to give the ICGA directions. In that case "asking to reconsider the life-time ban" effectively means "we consider the life-time ban to be wrong".

[syzygy]

Incidentally, the recent Anti-Cheating Guidelines of FIDE say in 5.A.3 under "Further Remedies" that

In case the offender has received a prize, he/she shall immediately return the prize to the tournament organizers.
Failure to do so shall be considered as a second violation of anti-cheating regulations ...

Let's see. The Ethics Commission apparently found a violation of the principle of legality, and now you cite a set of guidelines dating from November 2014 as if they could be applied to an incident from how many years ago?

[BB+]

I don't know the exact legal framework, but it seems likely that the ethics commission has no power to give the ICGA directions.

Prior to recent changes, the applicable sanctions the EC could give are largely listed at the end of this interpretative document, namely: warning, reprimand, fine, and various others, some of which apply only to individuals. An example of a warning was for Nigel Short calling Azmaiparashvili a dunderhead, and an example of a reprimand was the use of phrases like "slave of mafia from fide" by Bjelica. The complaint by Rajlich asked FIDE to stop recognising the ICGA, which the (former) Code of Ethics 3.1 allowed by: ...affiliated organizations acting in contravention to this code can be temporarily excluded from membership....

Incidentally, the new Ethics rules (see Annex n31 bis) also allow sanctions of: return of awards, revocation of titles and sports results (previously the EC had no competence on this), and social work. I can only imagine what the Rybka Forum would think adequate "social work" for the ICGA would be...

In that case "asking to reconsider the life-time ban" effectively means "we consider the life-time ban to be wrong".

I would say that both the conclusion and the written motivation make it clear (somewhat painfully, via citations from Swiss law on associations) that any "wrongness" of the ban was based upon two facets, namely that the ICGA Statutes did not specify its permissibility, and that Rajlich was not made sufficiently aware that something beyond tournament disqualification was at stake. I don't think the EC was concerned whether the ban was "wrong" in any sense other than this. The exact phrase used in the conclusion was: the ICGA has to be invited to modify their statutes in accordance with FIDE principles and rules. The suggestion of considering revising the lifetime ban sanction imposed against Mr Rajlich was conjunctively mentioned earlier, but not repeated in the conclusion.

The Ethics Commission apparently found a violation of the principle of legality ...

By my reading of the EC decision, the ICGA caused FIDE to appear in an unjustifiable unfavourable light and in this way damage its reputation (2.2.10) by a violation of rules that are mandatory for FIDE and FIDE organisations, namely that to impose a sanction an association must have a sufficiently clear statutory basis and procedural guarantees (the EC decision cites Swiss law as particularly applicable to FIDE, and notes that any national law would have something similar as an absolute minimum). This has certainly been something that the EC has been worried about over the last few years with the increase of cheating cases, namely that FIDE member federations (and affiliated organisations) should have a sufficient legal basis to carry out their own sanctions when desired, and this was one reason that the "joint competency" (for specific cheating cases) was proposed (see the EC Report, eg page 5, after bemoaning that: Unfortunately, no member federation get the message until now, probably because they have not yet been adequately informed and because they need to receive assistance to reinforce their internal structures it suggests minimal procedural rules for the evaluation of breaches of ethics can be added as mandatory for all FIDE members, as a part of FIDE Handbook).

and now you cite a set of guidelines dating from November 2014 as if they could be applied to an incident from how many years ago?

Perhaps my intent wasn't clear, but I did offset that paragraph and put "Incidentally" at its head... At any rate, there are two issues for the ICGA, namely how to revise their Statutes as "invited" by the EC, and how to deal ex post facto (if at all) with the lifetime ban of Rajlich. As far as I can tell, the ICGA (currently) has no proper basis for any sanction, though the EC decision seems to imply (for the purposes of FIDE ethics) that FIDE rules could be applied and thus a (maximum) 3-year ban could have been assessed.

For that matter, FIDE itself is a bit dodgy in this, given that (see page 5 of the above-linked EC Report) FIDE considers its Code of Ethics as part of the Handbook but it is not a part of the Statutes (which are listed in A1 of the Handbook), while the EC decision cites Swiss law as saying: There must be a sufficiently clear statutory basis for a penalty in the statutes or bylaws of the association. Maybe the FIDE Constitutional Commission will end up addressing this, but I think currently they are claiming the ability to change the offences/penalties w/o changing the Statutes proper, relying on the statue A1.8.1: The Ethics Commission shall consider any alleged breaches of FIDE Code of Ethics as specified in the FIDE Code of Ethics and in accordance with the Ethics Commission Procedural Rules. Depending upon the context, this could be seen as an improper delegation of what properly belongs to the General Assembly (namely to authority to modify Statutes [eg A1.4.1], specifically the basis for and extent of sanctions), as modifying the Handbook is easier than modifying Statutes. [Another example, FIDE tried to ban Touze for 5 years after the 2005 World Youth Champs, and had it overturned by the CAS, who noted FIDE's own 3-year limit].

[BB+]

[Another example, FIDE tried to ban Touze for 5 years after the 2005 World Youth Champs, and had it overturned by the CAS, who noted FIDE's own 3-year limit].

The initial Touzé case decision is here. I had the facts a bit wrong (it was not "overturned"), as the legal process is a bit odd, namely that Touzé tried to appeal to the EC about a Executive Board decision (the 5 years ban), when he could only appeal to the General Assembly (see paragraphs 43 and 44 in particular, though in 47ff it notes the fault was FIDE's [of course]). The Conclusion is that Touzé can (internally) appeal to the 2008 GA, and only then appeal back to the CAS (It would then be possible to tackle the question of the initial competence and disciplinary power of the Executive Board to order the five-year suspension).

Then in 2009 the second decision came. As can be seen (55) the GA reduced the period to 3 years. The question then became (47a) whether declaring Touzé had no right to organise FIDE events could be considered a "sanction" (no, this is an expression of not wishing to enter a contract with him, not of sanctioning, and the EB had the authority to do this). FIDE ended up paying 80% of the costs though, partially because of this (54):

This unclear context [of sanction versus EB measures] is entirely attributable to FIDE which, had it been diligent,
would have been able to spare the parties much time and energy. The Arbitration Panel regrets that such
a significant federation as FIDE could not have been able to nor wanted to manage with greater rigour
the dissensions against it with the Appellant. It is all the more deplorable as the Respondent criticises
Mr Jean-Paul Touzé of shortcomings in his organisation whereas, in the same domain, the Respondent
is clearly not exempt from criticism. All international federations have a duty to act in an exemplary manner,
which was not the case here.

Incidentally, at the Salonika meeting of1988 Touzé gave a lengthy speech (in French of course) in favour of admitting Québec to FIDE. [The Scottish representative at the same, one David Levy, criticised FIDE for "currency speculation" in British pounds, after it had previously agreed to bank in Swiss francs].

[BB+]

The agenda (as published Monday) for the FIDE Presidential Board meeting next week in Chengdu has (5.16) "no report" listed for the Ethics Commission. So I doubt that FIDE will soon be publishing anything on the matter.