FIDE Rules on ICGA - Rybka controversy

[syzygy]

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).

So, a violation of the principle of legality plus a lack of sufficient guarantees for a fair "trial".

That should normally lead to unconditional voiding of any sanction that was imposed and certainly of the life-time ban, i.e. if the ICGA at all cares about what the EC thinks. These deficiencies can't be repaired retroactively.

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...

There was a bit more:

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 the trophies and prize funds to the ICGA)

So the ICGA will likely decide to leave things as they are?

Why would that be OK? Apparently your reference to the November 2014 Anti-Cheating Guidelines was not intended as a justification. So there is no justification? So you expect that the ICGA will simply not care about the EC's opinion?

(Btw, I have not read the EC's opinion. All my information comes from this thread.)

[BB+]

So, a violation of the principle of legality plus a lack of sufficient guarantees for a fair "trial".

I would say that is the conclusion, but only for the "sanctions" part, not for the other ICGA proceedings. Quoting the EC motivation:

In the opinion of the EC, ICGA’s proceedings and decisions against Mr Rajlich had a double nature:
from one side they concerned the evaluation of an assumed violation of ICGA’s tournament rules, from
another side they were extended to punish a behaviour that was considered also as a violation of ICGA’s
not written disciplinary-ethical rules ...  For any decision concerning a violation of their tournament rules,
ICGA has not to respect a given model of procedural rules, even less the principles of a “fair trial”, just
because this is not a trial. Exactly as a chief arbiter or a tournament director may impose penalties or
disqualify a player from a competition without respecting a given model of procedural rules ...

contrasted with

Members of the ICGA’s Executive Committee ignored they had to respect specific rules if they intended
to carry out disciplinary proceedings against Mr Rajlich.

So the ICGA will likely decide to leave things as they are? Why would that be OK? ... So there is no justification [for the lifetime ban]? So you expect that the ICGA will simply not care about the EC's opinion?

I have heard that Levy is drafting a statement for the next ICGA Journal issue. To the best of my knowledge, the ICGA received the decision in early April, which was a bit short of the 3-month deadline for proposals to modify their statutes at the Triennial Meeting this year. So most likely nothing can be done in this regard until 2018.

If I understand correctly your inquiry about the "justification", my response would be: there is no statutory basis in the ICGA Constitution for sanctions and thus no justification of the lifetime ban. I would definitely agree that w/o the right to sanction, any sanction (including a "lifetime ban") is void as a matter of law. At the same time, I personally don't see any reason for the ICGA to address the issue until Rajlich tries to enter their tournaments again, otherwise it is just a philosophical point. Now there are two elements that oversee the ICGA's actions regarding their sanctions of Rajlich: national law and the FIDE CoE.

For the former, Rajlich can lodge a complaint in front of the competent ordinary judge, asking the lifetime ban to be overturned. I don't see him doing this w/o a desire to actually compete, but you never know. In that case, I could expect that the decision would be in his favour. Even then, the decision itself would be operative: the national court would not order the ICGA to rescind the ban, it would simply void it ab ovo -- in particular, there would be no ICGA press release saying "ICGA rescinds lifetime ban of Rajlich" [similarly, FIDE has seen no reason to remove from their (online) Handbook some Statutes that were annulled 2 years ago by the CAS, even though said Handbook was recently changed to include the CoE modifications -- nonetheless, the Statutes should be considered null].

As for revisiting the lifetime ban so as to appease the FIDE EC, as I mentioned previously, I would expect the ICGA to fall back to the statement from the Panel report ("until he can satisfy the ICGA that [his programs] are no longer derivatives"), which is arguably not a "sanction" so much as a condition for entry [though indeed the "originality" condition must be applied to all competitors, at the same time some discriminantion based upon prior incidents should be acceptable]. But again, I don't think the ICGA needs to make a public declaration if they choose that path, and most likely Levy would prefer to send some sort of report to the EC regarding whatever the ICGA Executive decides.

I reiterate that I personally am rather surprised that, given the EC discussion of prior conditions for applying sanctions, they opined that FIDE rules could be applied, which would allow a ban of (up to) 3 years, even though such a sanction by the ICGA would not meet "national mandatory rules" to my understanding. Perhaps the EC is willing, as per the comments in the EC Tromso Report, to consider any failure in this regard to be relatively minor until member federations and affiliated organisations receive assistance to reinforce their internal structures so as to allow sanctions, and 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.

[BB+]

(Btw, I have not read the EC's opinion. All my information comes from this thread.)

I seem that just about everyone at the Rybka Forum has seen it [most likely it was distributed prior to the confirmation from the EC that the judgement should possess a certain level of confidentiality], so it should be possible to obtain if you really want to read it. I don't expect it will be published by FIDE (beyond the Conclusion) as a matter-of-course, though either side could ask the EC for permission to publicise it if desired.

Even then, the decision itself would be operative: the national court would not order the ICGA to rescind the ban, it would simply void it ab ovo -- in particular, there would be no ICGA press release...

Sorry if my point here is a bit pedantic, but then again, from what I read from Schröder and others, they seem to expect the ICGA will (somehow) be forced/motivated to make a public retraction, which I don't think will be the case.

So you expect that the ICGA will simply not care about the EC's opinion?

As a strictly formal matter, I think the ICGA could ignore the EC [on the issue of the lifetime ban] without further ado or meaningful consequence, but I don't think they will (as explained previously). As far as I can tell, the EC is by-and-large done with the matter (even if the "lifetime ban" is allowed to stand), with Rajlich essentially being told to "lodge a complaint in front of the competent ordinary judge" if there are further matters (either on the internal ICGA process as a whole or simply on the sanctions). On the other hand, revising their statutes is something the ICGA probably cannot fail to do if they wish to stay FIDE-affiliated, especially if (as suggested by the EC Tromso Report) such measures end up being mandated for all FIDE members.

[syzygy]

If I understand correctly your inquiry about the "justification", my response would be: there is no statutory basis in the ICGA Constitution for sanctions and thus no justification of the lifetime ban. I would definitely agree that w/o the right to sanction, any sanction (including a "lifetime ban") is void as a matter of law. At the same time, I personally don't see any reason for the ICGA to address the issue until Rajlich tries to enter their tournaments again, otherwise it is just a philosophical point.

If the EC "asked the ICGA to reconsider the life-time ban", why is a further reason needed? It seems the EC cannot formally order the ICGA to lift the ban, but that does not mean the ICGA should not take the EC's suggestion into account, it seems to me.

If the ICGA responds to the EC's informal request in the way you suggested earlier in this thread (i.e. follow the Panel recommendation), then that would seem to fully ignore the point the EC has made.

As for revisiting the lifetime ban so as to appease the FIDE EC, as I mentioned previously, I would expect the ICGA to fall back to the statement from the Panel report ("until he can satisfy the ICGA that [his programs] are no longer derivatives"), which is arguably not a "sanction" so much as a condition for entry [though indeed the "originality" condition must be applied to all competitors, at the same time some discriminantion based upon prior incidents should be acceptable].

I hope this time ICGA will seek legal advice.

The ICGA messed up. It should now try to fix things for the future and not attempt to retroactively justify the outcome of a flawed procedure. The point of the EC is exactly that one should not try to fix things retroactively when the rights of individuals are at stake.

[BB+]

If the EC "asked the ICGA to reconsider the life-time ban"

I am not sure where this phrase is from (looks like it is from Bob). The phrase the judgement uses (but does not repeat in the Conclusion) is that ICGA has to be invited to consider revising the lifetime ban sanction imposed against Mr Rajlich. From my understanding of the legal matters, it might as well just say "consider revising the sanction imposed against Mr Rajlich" if this is intended to be quasi-legal advice as to how the ICGA should ensure it conforms with "national mandatory rules" as required by the EC.

It seems the EC cannot formally order the ICGA to lift the ban.

The Conclusion indicates the same: The EC ... has no appeal competence on the decisions of the ICGA. I think the strongest measure the EC could have taken would have been what (essentially) Rajlich had asked, namely for the EC to temporarily suspend the ICGA's membership with FIDE.

but that does not mean the ICGA should not take the EC's suggestion into account, it seems to me.

Certainly the EC must realise that it is playing as much of a role as a mediator as anything else here. I would agree the ICGA should take the EC's suggestion into account, but as previously noted, I would guess the EC thinks its job is done, that it has pointed out the "correct" way from a legal standpoint, and that any further action would be in a national court. To my reading, the EC seemed more concerned with the Statutes and procedural framework reformation than the actual Rajlich case (which might be proper if they are principally worried about FIDE appearing in an unjustifiable unfavourable light). This can be inferred both by the fact that the Conclusion doesn't mention any revisiting of the sanctions, and that the lowest possible sanctions were applied, namely "warning", when "reprimand" would have a similarly non-actionable status while making it undubitably clear what the EC's opinion of the matter was (the judgement notes that some leniency is apropos since the ICGA executives were not jurists and they were convinced to act in the best interest of their organisation).

If the ICGA responds to the EC's informal request in the way you suggested earlier in this thread (i.e. follow the Panel recommendation), then that would seem to fully ignore the point the EC has made.

Here I disagree, because I don't think the Panel recommendation is a "sanction" per se (I could be wrong, the point is at least arguable). As I've stressed in this thread, to me the main point the EC made was that there was neither a statutory basis nor sufficient procedural guarantees for sanctions to be applied. On the other hand, the EC clearly accepted that the ICGA has exclusive competence on the interpretation of their tournament rules. If requiring Rajlich (and/or his entries) to undergo greater scrutiny because of a prior disqualification really is a "sanction" (rather than say a common sense action and/or application of tournament rules), then I would agree with you. [And demanding the return of trophies/awards similarly does not seem to be a "sanction" to me, given that Rajlich was in fact disqualified from the relevant events].

I hope this time ICGA will seek legal advice.

If Rajlich takes the case to a national court, then I would suppose they will. Until then, my guess is that they will fly by the winds (whether or not this is wise is a different issue).

The ICGA messed up. It should now try to fix things for the future and not attempt to retroactively justify the outcome of a flawed procedure. The point of the EC is exactly that one should not try to fix things retroactively when the rights of individuals are at stake.

I agree that the ICGA messed up (in applying sanctions), but it is not clear to me that Rajlich went in the right direction by approaching the EC (rather than a national court) if he wanted the "lifetime ban" overturned and/or the ICGA decision reviewed. His complaint already made it clear that he accepts that the EC is not competent on many matters (particularly any review of the ICGA decision), so one wonders why he chose this path in the first place (other than that the EC is cost-free!). Perhaps I am underestimating some "rights of individuals", but I don't see why the ICGA shouldn't just have an attitude of "we'll consider revising the lifetime ban if/when it becomes an substantial issue" (either by attempted entry into an ICGA tournament or instigation of legal process), as opposed to the "formal" issue that I currently see it as.

[Chris Whittington]

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).

So, a violation of the principle of legality plus a lack of sufficient guarantees for a fair "trial".

That should normally lead to unconditional voiding of any sanction that was imposed and certainly of the life-time ban, i.e. if the ICGA at all cares about what the EC thinks. These deficiencies can't be repaired retroactively.

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...

There was a bit more:

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 the trophies and prize funds to the ICGA)

So the ICGA will likely decide to leave things as they are?

Why would that be OK? Apparently your reference to the November 2014 Anti-Cheating Guidelines was not intended as a justification. So there is no justification? So you expect that the ICGA will simply not care about the EC's opinion?

(Btw, I have not read the EC's opinion. All my information comes from this thread.)

"If violation of principles of legality and lack of suficient guarantees for a fair trial" should normally lead to unconditional voiding of any sanction; do they not also normally lead to unconditional voiding of the verdict? Am I missing something here?

The "violations" all took place in the lead up to the ICGA acting as investigator, decider, judge and punisher - all as one entity. Does this not void the subsequent process?

[syzygy]

"If violation of principles of legality and lack of suficient guarantees for a fair trial" should normally lead to unconditional voiding of any sanction; do they not also normally lead to unconditional voiding of the verdict? Am I missing something here?

I haven't read the report, so I don't know the extent of the EC's criticism. What I responded to was:

namely that to impose a sanction an association must have a sufficiently clear statutory basis and procedural guarantees

This is about the imposition of the sanction. Of course others defects might have been found as well; I have not read the report.

[BB+]

"If violation of principles of legality and lack of suficient guarantees for a fair trial" should normally lead to unconditional voiding of any sanction; do they not also normally lead to unconditional voiding of the verdict? Am I missing something here?

I think the bare-bones situation would be:

• Association X informs member M that action A is being considered him
• Member M decides that action A is insufficient to motivate him to mount a defence
• Assocation X takes actions A and B against member M
• Action B is later determined to be without cause
• Member M then argues that if he had known B was at stake, a defense would have been provided, ergo A is invalid

Given that Action B was never known to M in the first place, and its application was overturned in the end, I don't see how it relates to A, which I would think should be considered on its own merits and procedural background, independent of B.

Or to make this a more real-world example:

• The IRS informs you that it plans to levy a tax lien on your property (ie, seize it)
• You decide it is not worth the effort in fighting this
• The IRS ends up both levying the lien and freezing your back account (though not [yet] seizing the funds)
• After multiple years of onerous legal efforts, the latter is found to be unjustified (for multiple reasons)
• You then argue that the tax lien levy is thereby procedurally invalid

[BB+]

Of course others defects might have been found as well; I have not read the report.

The Conclusion implies that the proceedings themselves were legitimate: By carrying out proceedings against Mr Rajlich for an alleged violation of ICGA tournament rules and by deciding to disqualify Mr Rajlich from the World Computer Chess Championships 2006/2010, the ICGA has not violated the FIDE Code of Ethics, nor any other FIDE rule or general principle of law. I'm not sure exactly sure why the EC threw in the final "general principle of law" (as it does not properly relate to FIDE interests), maybe they felt it would give some clarity. The gist of the argument was that: FIDE has no appeal competence; the ICGA has no need to respect a given procedural model (including "fair trial") in applying its rules, and there is no evidence that the ICGA Executive acted in a partial manner. As noted above, the EC made a strong bifurcation between rules infractions and disciplinary measures.

[syzygy]

The "no need for a fair trial" part referred mainly to the case where a TD rules in the course of a tournament. The TD must be given a lot of leeway, or he won't be able to guarantee a smooth running tournament. In my opinion that also means that the TD should not be able to impose sanctions more severe than disqualification from the tournament.

ICGA rule 2 was supposed to be enforced by the TD. If during a tournament a reasonable suspicion would have arisen against Rybka and Vas would not have been willing to provide the TD with "a listing of all game-related code running on the system", then the TD could have declared the program invalid and the tournament would have continued without the program.

Such a disqualification could later turn out to be an incorrect decision, but arbitral errors are part of the game. In football, an offside goal counts as a real goal if the referee messes up. Football teams do not enjoy the right to be heard while the game is in progress, because that simply wouldn't work.

What happened here is that the ICGA decided, many many many years after a tournament was held, that rule 2 could still be used, not by the TD but by the ICGA Executive Committee, to change the outcome of the tournament. And not only that, they could also impose sanctions going beyond what rule 2 provides for.

Or at least, this is how the EC put things. The EC obviously found it curious that the outcome of the tournament was not final even though there was no clear legal basis for the ICGA Executive Committee to revise it. But the EC let the ICGA escape: "It's a possible interpretation of their rules."

I'm not so sure that rule 2 was actually viewed by the ICGA as the legal basis. The purported legal basis for the whole investigation including the sanctioning was the "Charter of the ICGA forum". The EC never seems to mention the Charter, most probably because it dates from 2011 and therefore cannot serve as a legal basis for retroactively disqualifying Rybka.

Anyway, since in 2011 the tournament was not running anymore and it was not the TD that had to take the decision, there was no justification for not ensuring a minimum degree of fairness. In so far as the EC's judgment suggests that the ICGA Executive Committee could, today, strip let's say the 1983 winner of its title without even giving that person the right to be heard, I cannot help but feel troubled by it.

It is strange that at the same time the EC requires the "sanction procedure" to guarantee the right to be heard. Obviously that applies to sanctions imposed post-tournament and not to sanctions imposed by the TD during a tournament. It is difficult to understand why the post-tournament application of "tournament rule 2" (including the imposition of its sanction) does, in the EC's view, not require the right to be heard (and other obvious principles of fairness) to be guaranteed.

So on the point of the non-independent panel investigation (leading to a report that included nothing less than a guilty verdict ("Not a single panel member believed him innocent")) the ICGA escaped again thanks to the EC's willingness to consider it part of the application of a "tournament rule".

There are quite a few other issues that could have been raised. For example, how could the ICGA Executive Committee ever come to the decision to disqualify Rajlich from tournaments in which he did not enter any of the Rybka versions that were investigated... I have to say the CSVN's statement from as early as August 2011 shows remarkable insight in the matter.