OA643: Magnus Carlsen Accused Hans Niemann of Cheating at Chess. The Chess World Exploded. Now Hans Has Sued

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:01:17 Thomas: Hello and welcome to Opening Arguments. This is episode 643. I'm Thomas. That's Andrew Torres Esquire. How are you doing?

0:01:25 Andrew: I'm doing fantastic, Thomas, how are you? E4, okay, all right.

0:01:30 Thomas: E4. Play some mental chess while we're doing this. No, I am so excited.

0:01:34 Andrew: Pawn takes queen.

0:01:36 Thomas: Been really excited to get Andrew's breakdown of this. The Hans This Nieman chess quote-unquote cheating scandal. We'll see what we feel about it. This is something I've Been Following Since It Happened. I like chess. Yeah, no, I'm not actively playing chess, but I, I play a little bit of chess. I'm, you

0:01:47 Andrew: Really? Oh. He's a, you know, triple grandmaster, but.

0:01:55 Thomas: Nothing too, no. No, know, I like chess. I still follow the, you know, so it's like one of the subreddits I subscribe to and and the chess Reddit has been where this has just exploded.

0:02:00 Andrew: Oh. I find that very easy to believe.

0:02:06 Thomas: So I have been following this from the get-go. I never dreamed that it would get to the point where it'd be a great OA breakdown, but whoo, there's a lawsuit. I cannot wait to hear Andrew's take on this. Um, that's going to be a lot of fun. I'm excited. Hey, Hey, please, by the way, after listening to this breakdown of the chess cheating scandal, please share this episode. Especially, you know, if you're a member that chess Reddit, maybe share the episode, you real Harvard educated attorney breaks down chess loss. Yeah, just something like that. Just spitballing, you Know, the headline you want to use, that would be awesome.

0:02:37 Andrew: Well, Spoiler, as long as we're flagging that I am also talking about a contemporaneous and I think nearly identical situation involving uh Texas Hold'em, so uh, might, we might have a couple different subreddit, I'm sure the poker Reddit is equally uh up in arms uh

0:02:56 Thomas: We We'll see. I've also been following that, but I didn't know there's a law component. I can't wait to hear it. In the meantime, I think we are going to do a little segment first that has you amped pretty up.

0:03:00 Andrew: Yep. Yep. This is, uh, the latest news and yes, I get it. Uh. Whenever you see a headline that involves Clarence Thomas, the Supreme Court, the 11th Circuit and, uh, Senator Lindsey Graham, that that's usually a witch's brew of awful. Um, this is not the time to panic. Okay? OK, so let me kind give the background and explain what happened this week. As I think you know, I think most of our listeners know, the grand jury in Fulton County in Georgia, led by Fannie Willis, has served a subpoena on Lindsey Graham to come testify because of the uncontested evidence that in November and December, Lindsey Graham went, you know. Kind spelunking you in Georgia. By the way, he's the senator from South Carolina. He is not a Georgia senator, but, you

0:03:23 Thomas: Yep. Hmm. Interesting.

0:03:55 Andrew: Kind of close and, well given to kissing Trump's ass. And so he spoke to a whole bunch of people involving Trump's bizarre claims of election fraud. Now, ultimately, Lindsey Graham voted to certify the election results. We should say that. But when he got the subpoena from the grand jury, he, balled it up and threw it into the trash can, you know, whatever you want to say that, proverbial, you is.

0:04:21 Thomas: Ignoring subpoenas is so hot right now. It seems to be. He just went with the trend.

0:04:25 Andrew: And his argument, and look, it's not the dumbest argument that anybody associated with Team Trump has advanced. His argument is is that the Speech and Debate Clause, Article 1, Section 6, Clause 1 of the Constitution, immunizes members of the United States Senate. In fact, it uses the words, shall not be questioned about any speech or debate. And so his argument was, look, this is related to my job in the Senate voting to certify the election, and therefore I'm 100% immune. And the district court said, no, no you're not 100% immune. You're immune for things that relate to your job, but figuring out how to overthrow a democratically elected president is not your job. So, they didn't quite say it like that, but they said, so show up.

Lindsey Graham appealed to the 11th Circuit and also got a partial stay of that ruling that would have immediately required him to testify and the 11 Circuit said, okay, um, hey, trial court, you should consider, you only considered the binary question because it was the only question that was posed to you. Uh, linda right Graham did not participate below, uh, in fact he did not even timely

0:04:48 Thomas: Right.

0:05:34 Andrew: Respond, but you know the 11st Circuit is a conservative circuit and they were were going to bend over backwards to, know, maybe find in favor some of, grounds. And they said, hey, you should think about partial quashel, right?

0:05:45 Thomas: Partial quashel flows off the tongue. Can

0:05:46 Andrew: Yeah. Not just the question, is he in or out? But okay, maybe Lindsey Graham is in, but some topics are out. When you're a district court and the circuit sitting above you says, maybe you you should think about X. You do. You think long and hard about X, and so the trial court came back and said, you know what? You're right about that. Thanks for the guidance, 11th Circuit. We are going to partially quash the subpoena, and here's what they said. The court quashes the subpoenas only as to questions about Senator Graham's investigatory fact-finding on the telephone calls to Georgia election officials, including how such information related to his decision to certify the results of the 2020 presidential election, right? The court finds that this area of inquiry falls under the protection of the speech or debate clause, which prohibits questions on legislative activity.

0:06:36 Andrew: As to the other categories, the court finds that they are not legislative, and therefore the speech of debate clause does not apply to them. As such, Senator Graham may be questioned about any alleged efforts to encourage Secretary of State Brad Brad Raffensperger, or others to throw out ballots or otherwise alter Georgia's election practices and procedures. Likewise, the grand jury may inquire into Senator Graham's alleged communications and coordination with the Trump campaign and its post-efforts in Georgia, as well as into Senator Graham's public statements related to Georgia's 2020 elections.

0:07:09 Thomas: Does it not matter that this didn't happen on the Senate floor? I mean, does that speech and debate thing not just apply?

0:07:16 Andrew: It's a great question because, again, it sort of illustrates every single time. I mean, I love kind of pointing out where the history of interpreting certain provisions of the Constitutions and protections goes beyond kind of the plain meaning of the words, despite the fact that, you know, we got six. It's just about the plain meeting of the original intent of the framers. Speech or debate certainly means what happens on the floor. But that has been expanded to include with constituents, for example, right? Things that are a part of that sort of core job, courts have rather consistently held, yeah, no, that's part of what the framers intended.

0:07:16 Thomas: Oh, okay. Okay. We'll

0:07:56 Andrew: It's an expansive reading of the term, which if you want to point out that this court is ridiculously inconsistent when it comes to, you the way in which we understand terms in the Constitution, I am right there with you. So the question is, right, what counts as speech or debate? Here they're saying, all right, you gathered some information that aided you in determining whether to certify the the election results. You know what? We'll give you a mulligan on that one.

0:08:21 Thomas: Spot you that. Okay.

0:08:22 Andrew: The Yeah. First 10 billion or first 50 billion is on you.

0:08:24 Thomas: Yeah. First couple treasons are on us.

0:08:28 Andrew: You're going to have to answer questions about your calls to Brad Raffensperger. So Lindsey Graham went back to the 11th Circuit, asked them to stay that order, and this time the 11th Circuit was like, no, the district court did exactly what we told them to to do. They went down. They looked at partial quashel. They looked at this with specificity. By the way, Senator Graham, when you went down there, you didn't argue for partial quoshel, right? You didn't play by the rules. You just repeated your arguments that you shouldn't have to be here at all. And so, you know, maybe if you'd spent some effort on that, then we wouldn't be here. Then So Lindsey Graham filed an emergency petition. This is a so-called shadow docket petition to Clarence Thomas, as we know from the Mar-a-Lago case, right?

0:08:41 Thomas: Yeah. Yep.

0:09:11 Andrew: Administratively sits over the 11th Circuit asking to stay the district court's opinion. And here are the grounds, okay? This is page 11 of this emergency motion. Motion. Once on appeal, the district attorney agreed that she would not go forward with Senator Graham's testimony until, that's Fannie Willis, until his appeal was finally resolved. That would obviate the need for their stay. But just two business days before Senator Graham's scheduled testimony, the District Attorney reneged on that agreement. That is footnote seven. We're going to get to footnote 7 in a second. Senator Graham thus had to move to stay the proceedings pending appeal. The District Court denied the stay, even while acknowledging that Senator Graham would suffer irreparable harm by being subjected to questioning before the grand jury if he is correct on the merits.

0:09:11 Thomas: What?

0:09:57 Andrew: If you're Clarence Thomas, and you read that, and you assume that Lindsey Graham, by and through his counsel, former White House counsel Don McGahn, by the way, that they're not completely lying to you, what you do is exactly what Clarence Thomas did here, is you enter an administrative stay. You say, say, you know what? Fannie Willis is not willing to wait until the appeal is exhausted.

And so if required, if Lindsey Graham is required to actually come in and testify before the grand jury, before the Supreme Court's had a chance to even look at the papers, that would moot his appeal. That would effectively deny him the right to appeal all the way up to the Supreme Supreme Court. We're going to expedite this thing, mind you, what right? We're going to do is we're doing to enter a stay, we're gonna preserve the status quo so that that doesn't happen. Again, And I've said this like a dozen times on Twitter, I get why people are agitated about it, is actually the purpose of the Supreme Court's shadow docket.

This is not a settled question. Is a sitting senator being subpoenaed to come before grand jury investigating crimes by a former president, it's reasonable to say, hey, we want to make sure the Supreme Court gets a crack at this before we make a decision, right? That's a totally reasonable thing to say except footnote seven describes and contains a link that I read you, it said they agreed to stay the actual testimony before the grand jury until the appeal was resolved. But then two days ago, they just, you played takesies-backsies.

0:11:31 Andrew: So that's why we're forced to be here today. And footnote 7 is very, very odd. Just contains a link to a Dropbox that has an MP3 of the voicemail that is supposed to evidence this reneging on the agreement. Now, I would tell you ordinary lawyerly practice is to transcribe the goddamn voicemails. Yeah, you don't just put in a link, to a dropbox, to an MP3, come on, Reason you do it this way is to try and make sure nobody actually plays the vocemail. Well, yours truly played the voicemail, and now I'm gonna play it for you.

0:11:53 Thomas: Yeah. Bizarre.

0:12:06 Andrew: Or

0:12:06 Thomas: Is it going to make us sign on to Clarence Thomas's Patreon to get the behind paywalled voicemail? All right. Well, let's hit play on whatever this is.

0:12:14 Clip: Good afternoon, Brian, this is Donald Whitford. I am returning your calls, and I see that a motion has been filed. Apparently, after you were unable to get Mr. Wade or me this morning, we have been in with the grand jury today, and I am returning your call to discuss Mr. Graham's scheduled date of appearance. I can go ahead and tell you, on this message, that I haven't had a chance to talk about it, we don't object to move into date pending the resolution of appeal. But do me a call back so we can discuss your motion, and I will keep an eye on my phone and step out of grand jury if you call while we are in with a witness. I hope to speak to you soon.

0:13:00 Clip: I can still be reached at the same number, 404-375-0281. Goodbye.

0:13:05 Thomas: I got his number. Okay. What?

0:13:07 Andrew: That's a complete lie, that is the opposite of what the footnote says, they, they have accused Fannie Willis of reneging on an agreement and saying, yet we said, uh, know, we could have had a stay, but then you, did, you, the takesies backsies, the vocemail says, you just heard it, we played it, it's got her lead prosecutor's phone number on it, you give a call, it says, hey, we've chatted about it, we're okay moving your testimony pending the resolution of your appeals, and To cite that as if there was a, not, if I were Fonny Willis, I would rip them a new one, up and down, uh, in my opposition brief, which is of course due to Be, be filed Thursday evening with The Supreme Court, would say, "Yeah, they buried it in a footnote linked to a drop box of an MP3 of a voicemail. I would transcribe that word for word."

0:13:36 Thomas: What?

0:13:47 Thomas: Yeah. That is so bizarre.

0:14:01 Andrew: Lie that brazenly, because once that lie is uncovered, right, then there is absolutely no need for this administrative stay, Then right? There is no irreparable harm to Lindsey Graham. We agree. All right, fine. You're not going to come in and talk until you've had a chance to go to the Supreme Court and say, are? Are you going to enter a preliminary injunction staying the district court's order? And you know why you do that is because you're confident that the Supreme court isn't going to do that. And again, why am I confident? Reasonably confident. I mean, it would not say, you know, a hundred, but I'm 90, 10, 85, 15. We just saw this in the Mar-a-Lago case, right? We just saw this with Clarence Thomas, where this is a court that is dedicated to conservative policy outcomes and not necessarily to protecting Donald Trump personally. And I think in terms of carving out responsibility under the speech and debate clause, the limitations that the district court set are consistent with precedent, and provide, by the way, for Lindsey Graham to have a case-by-case objection, right? Like a question-by question objection.

So if you get into something and he's like, no, man, that's within the scope of the carve-out, you just object and refuse to answer, If Lindsey Graham takes advantage of that, which I imagine he will, then, you know, you got to go back to the court and move to to compel his testimony. But again, there is

0:14:32 Thomas: Yeah. Mm hmm.

0:15:23 Andrew: No risk of irreparable harm here. Once the Supreme Court rejects the sort of blanket, there's total immunity because of speech and debate. And that's just not consistent with the court's precedence. So I think that this is going to get resolved very quickly at the Supreme Court level. I think the Supreme court's going to deny and go back. Yes.

0:15:30 Thomas: Mm-hmm.

0:15:45 Thomas: I get that they're just lying. Does this mean that Clarence Thomas boomered this one and didn't know how to click link the or something?

0:15:50 Andrew: Yeah, look, it is not reasonable. I mean, I did it because I can't help it, right? But it's not reasonable to expect a Supreme Court justice to download on his computer the electronic version of what you've submitted, right, because these people, they have clerks who hand them paper copies, right. Right. And know that sounds super boobery, but

0:15:55 Thomas: Yeah. Yeah, can't you get away with anything on this method, then? Just make any claim, put some sort of technology link in there that boomer justices won't want to do, and then voila. Voila.

0:16:20 Andrew: Right. You are making that application ex parte, it I read That I'm no fan of Lindsey Graham. I am no fan again. But but that that's why I went to actually listen to the voicemail, because I looked at it and I was like, well, that seemed like a pretty dumb strategy by there. Right. Like, why would Fonny Willis do that? And then you play the voicemail and you're like, oh, she didn't. You were just a liar. Got So there we go. If you are thinking that the fix is in again, remember, we showed you the fact that Clarence Thomas administratively sits over the 11th Circuit does not give him magic powers, does not mean that the fix is in, does not mean that, you know, it's all Eileen Cannons all the way up. It isn't. There's a good reason to have granted the administrative stay here. And there'll be an even better reason for the Supreme Court to yeah, I'd say not. We've reviewed this on the merits and the application for a preliminary injunction staying the district court's relief is denied, period. Period. That's, I believe, the next step.

0:16:36 Thomas: Wow.

0:17:07 Thomas: Ungrant that.

0:17:21 Thomas: Well, we'll look forward to seeing that. And after this break, we will get to the chess story.

0:17:29 Thomas: All Right. I hope we've left enough time. I can't believe you're bringing the poker story into this potentially because I could talk for an hour about that. We'll see if we can get this all in. Let's let's stick to chess for now, um, let's do the breakdown here, Andrew. Um, I am really curious to hear your perception of this, uh. So why don't you start us off, what's going on here?

0:17:35 Andrew: Yep.

0:17:47 Andrew: Reason I wanted to bring in the poker story is because this strikes me as part of a larger category of allegations that are going to become more commonplace as we live in an era of big data. And those allegations are defamation per se, say, Magnus, right? Carlsen has has accused Hans Nieman of cheating at chess. That is defamation per se. That is to say, you conduct your business in a fraudulent manner.

0:18:02 Thomas: Okay.

0:18:17 Thomas: I think just in case anyone hasn't followed it, we should, we should actually paint the picture. They were in a tournament, uh, Hans Niemann was playing Magnus Carlsen. Magnus Carlsen, if you don't know, is the best chess player, probably arguably the best chess player on Earth, at least was as of a few years ago. I think he's taken a little bit of a step back, was my understanding, from from

0:18:36 Andrew: Oh no, he's still, he still ranked number one and And

0:18:39 Thomas: He's taking a step back from from how much he's playing He he wasn't going to defend one of his titles, he's still amazing, yeah, he's till the amazing player of

0:18:46 Andrew: And potentially, and I didn't know this until I started researching, that there is a not insubstantial argument that he is the best chess player of all time.

0:18:56 Thomas: All Time, yeah.

0:18:56 Andrew: Yeah. Thirty one years old. This was in St. Louis at the Sinkfield Cup, which is apparently, I don't know, a a Big Chess thing. Um, Hans Niemann is 19 and is the 40th ranked player in the world, a very, very, very good chess player, uh, and an up-and-comer, uh, shows all of kind of the hallmarks of being, uh, young chess, and they're not that, not young, right, like I'm gonna get to that in a minute, uh, but, you know, a a rising chess prodigy, um, was white, uh, and if you know anything, thing about chess, that is a huge advantage, uh, and so Niemann, playing black, uh, managed to defeat uh Magnus Carlsen, uh, that broke a 53 match streak of

0:19:04 Thomas: Totally. That's Yes. Yes, yeah. Yeah.

0:19:41 Andrew: Not losing, um, and immediately led Magnus Carlsen to uh suspect, uh, that there was cheating going on.

0:19:48 Thomas: Well This is where I brought it up on the Q&A at first, uh, back around when this happened, because what he did was he, he withdrew, he just quit and he didn't say anything for a minute. And everyone was like, what is going on?

0:19:51 Andrew: Yeah. This, was the, the third round of that tournament, the top seed at the time, therefore, process of elimination, Hans Niemann was the lowest remaining seed in the field at the absolutely.

0:20:00 Thomas: Right.

0:20:09 Thomas: Gotcha. And he just, just he quit, people were speculating, they didn't know. And then he released a cryptic statement that featured a quote that essentially told everybody, okay, he's quitting because Hans Niemann, he think he, he believes Hans Niemann cheated to beat him. And I think I asked you around that time, like before a lot of this other stuff happened, what's the line there? If you, if you do something that basically tells the world that Hans Niemann has cheated, even though you didn't say it, but it basically tells the world Hans Niemann has cheated, and it has, I'm sure you're going to get into it in the complaint, it has had profound effects on on Nieman, like for real. That was the first step of it, was like him just kind of quitting and leaving a cryptic statement that basically told everyone as much as they needed to know but didn't say it in so many words. Sure.

0:20:57 Andrew: And the answer, let me interject, because this is a super easy lightning round answer. You can defame someone without using magic words, that right? Statement could have been the basis standing alone of a defamation claim, right, you would then look into, you how was the statement made? What, you know what went into it? What was it perceived to be? But, but we can all imagine in an era of, you gifts and emojis, like、 you how can you communicate something without saying the word. And I've long said, right, that the, you don't get around defamation by saying, it is my opinion that Hans Niemann, right? Like, yeah, no, you're making a factual assertion. You were saying

0:20:59 Thomas: Yeah. Exactly. Yep. And

0:21:35 Andrew: Hans Niemann cheated at this match.

0:21:37 Thomas: I'm not sure if this matters as much for our purposes, but there's also pretty strict rules, I believe, uh, different kind of chess rules, uh, I can't remember, remember what the names of the whatever organizations are. Because, but this has happened a lot and I know this is something that like Bobby Fischer would accuse people of cheating, you know, like it's come up that whenever somebody loses that, you know, there's, there's an incentive to maybe accuse someone of cheating. I think they have pretty strict rules against that as well. But that might not matter as much for the legal component. I'm not sure. OK, so then what's the next salient fact for you?

0:22:07 Andrew: At the next tournament, uh, Carlsen and Niemann were matched up again. Uh, Niemann made one move and then Carlsen tipped his king and resigned from that event. So, you know, kind of multiply hey, I'm not playing against this guy. And then released a public statement over Twitter. And I will read some of that here, which says, Dear Chess World, at the 2022 Sinkfield Cup, I made the unprecedented professional decision to withdraw from the tournament after my round three game against Hans Niemann. A week later during the Champions Chess Tour, I resigned against Hans Niemann after playing only one move.

0:22:09 Thomas: Mm, yes.

0:22:43 Thomas: Yeah, I was going to say that. Magnus played the move, but yeah,

0:22:46 Andrew: I know that my actions "Many in the chess community, I'm frustrated, I want to play chess, I want the best. I believe that cheating in chess is a big deal and an existential threat to the game. I also believe that chess organizers and all those who care about the sanctity of the game we love should seriously consider increasing security measures and methods of cheat detection for over-the-board chess." Again, there's lots of Zoom chess events. That chess translates very nicely to Zoom. Over-the-board means in person, right?

0:23:17 Thomas: Yeah, there's also just chess software that people play on chess.com, people And you might think that that's like someplace where, you you could just cheat willy-nilly and no one would know. But I don't know if this will factor. There's really advanced proprietary algorithms that, you know, chess. Com uses to try to detect cheating.

0:23:20 Andrew: Yep.

0:23:34 Andrew: We're going to talk about that, yeah.

0:23:34 Thomas: Yeah, we'll talk about it. So so cheating is a problem everywhere. But at the very least, you Magnus is saying here, like, at the very least we ought to be able to trust the highest level of over the board chess.

0:23:44 Andrew: Over- the board, in person. When Niemann was invited last minute to the 2022 Sinkfield Cup, I strongly considered withdrawing prior to the event. I ultimately chose to play. I believe that Niemann has cheated more and more recently than he has publicly admitted. Refers to, uh, an internal chess.com, uh, investigation and audit, uh,

0:23:46 Thomas: Yeah.

0:24:08 Thomas: It also refers to, sorry, we skipped over, there's things, two, two, two interviews Niemann gave that might be important here. For one, the post-game interview after he beat Magnus Carlsen. The first time, a bunch of people pointed to that because they, you know, once it was clear why Carlsen withdrew, they pointed to. That is like, look, he can't even explain how he won very well. And there's a whole lot of very, I think, very suspect claims about trying to interpret his, you Know, body language, his demeanor. Look, he Can't explain how He won kind of thing. Set that aside. But then also after a bunch of that happened and after, I think, another person who I believe is named in the lawsuit, Hikaru, the most popular chess streamer, Really went out of his way to, I think he's probably said even more explicit stuff about cheating than maybe anybody else, except for the Chess.com report. And after that happened and it kind of made huge waves online, then Niemann did another post game interview in another, I think, a later round of the same tournament, where he admitted to having cheated a couple of times.

Uh And I don't know, Andrew, how much we need to get into these details, but having cheated when he was, you know, I don't, 13 and 17 or something, on chess.com. And apparently chess. Com's way of dealing with these things what has been to like work them out kind behind the scenes, and he agreed to not do it again. And then they gave him a different account. It's kind of weird how they did that. But anyway, he admitted to that.

0:24:16 Andrew: Correct yeah

0:25:33 Thomas: So Niemann proactively kind of admitted to a couple times cheating on the website, but he said he had never firmly said he had ever cheated over the board ever. And so that's what Carlson's statement is referring to here.

0:25:46 Andrew: And so to be clear on that, in 2020, chess.com sent, suspended Hans Niemann's account. Uh Hans Niemann was uh 17 at that time, on the basis of 11 events uh dating back to when. But those events occurred when he was 12, 14, and 16 to 17,

0:26:07 Thomas: That's very young, I'll say, by the way.

0:26:09 Andrew: 12 and 14 Are 16 to 70 for somebody who's 19? But nevertheless, the basis of those 11 events, they were like, hey, man, and we're going to talk about their cheating detection system. We strongly suspect that you have cheated in these events. Um they don't have an email back uh from Hans that, that meets up with the, like, "I would like to exchange goods and services for sexual favors but he says, you know, "Hey, sure, thank you so much," um, show me how to set up the new account. And and they've described this as, you, private contrition. Uh

0:26:10 Thomas: Yeah. Yeah, for not cheating anymore. Yeah Yeah.

0:26:42 Thomas: Twitch

0:26:42 Andrew: And then he, you know, sort of gets a clean slate. And And That's been the way, as you correctly describe it, the way Chess.com handles that. In light of the recent scandal, the report here has been updated. And Chess.com reports, "We have found that Hans has likely cheated in more than 100 online chess games, including several prize money events." He was already 17 when he likely cheated and some of those matches and games and was streaming. Hans Niemann also makes money as a YouTube chess streamer.

0:27:13 Thomas: Probably.

0:27:13 Andrew: Right?

0:27:14 Thomas: But yeah.

0:27:14 Andrew: Probably, yeah. In 25 of those games. And that responds to Neiman saying, yeah, I cheated online as a kid, but never for money and not when I was streaming on chess.com disputes those statements. I guess now is a good time to talk a little bit about how you cheat at chess. It's super easy online, right? The way you cheat is there are online chess solvers, um, and the way to think about this, I I don't know how the Elo score is calculated, uh but you get a a And

0:27:29 Thomas: Yeah. Yeah, that that surprises me because Elo is kind of a universal competition thing. I would have thought you knew exactly how that worked.

0:27:51 Andrew: You get an Elo score, um, Magnus Carlsen's Elo score is just about 2,900. It's not quite. The Stockfish Soliver, the most powerful chess engine, has an estimated rating of more than 3,500. And then here's what chess.com says. In a theoretical match between world champion Magnus Carlsen versus Stockfish, we estimate that it is most likely that Magnus Carlsen would lose every single game, no wins and no draws, right?

0:27:59 Thomas: Yeah yeah. It's that unbelievably powerful. Like it's It's actually astonishing how, how, how much better computers now are than than humans, because within our memory that wasn't the case, you know, there's the

0:28:18 Andrew: Yeah, Yeah. Because I remember Big Blue, right? Exactly, yeah.

0:28:30 Thomas: When Uh, Gary Kasparov famously lost, that was kind of the first, like, big moment of, oh, wow, computer to Deep, yeah, that chess computers are better and they've gotten astonishingly better since then.

0:28:30 Andrew: Yeah, To Deep Blue, yeah, we Have, I, I talked a little bit in a a TED-style talk that I gave, um, about, uh, neural, neural networking, right? And I was talking about generative adversarial networks creating lifelike faces. And so if you go to thispersondoesnotexist.com, that will show you what random computer, solely through neural networking learning, has learned about how to create realistic human faces. Uh, and it's terrifying how good they are at it. And, and, yeah, yeah, same thing. So you have these solvers that are orders

0:29:15 Thomas: Easily available, easy to use, on while you're in an online game.

0:29:18 Andrew: Online. Yeah, and so chess.com's detection systems begin, that's what they do is they look for, are you playing solver moves, right? And so they, that

0:29:18 Thomas: Yeah, Statistical Anomalies Too, and it's, and it's very complicated because Um, if you're gonna cheat, you don't just use the thing the whole time. Like, if you Were gonna cheat effectively, you might just use it a one move, two move, and like, that's enough at the high levels to make all the difference. And it's probably pretty difficult to pick that out, but that's why they have these proprietary algorithms, um, to really do this, like, statistical analysis to try to, be able to suss that out as best as they can. I'm

0:29:57 Andrew: Is exactly right. Chess Right. And talks, chess.com talks about how, you day they kick a bunch of like, you teenagers fresh off of World of Warcraft who come in and just play solver moves, right? Like, you know, I love it.

0:30:11 Thomas: Sorry. That's just such a, that's such an Andrew reference. Oh boy. The game that's like 30 years old that literally no teenagers even know about. Sorry.

0:30:20 Andrew: Yeah. Okay, fine. But glad you like that one. But no, No. So there are a bunch of like stupid kids that get on and like, you have an ELO rating of seven and like are just playing the solver move every move. And that's super easy to detect. But you are but correct. They get they testimony. There are a punch of bullets from various chess grandmasters this is what Magnus had to say about it before, you know, this investigation. He said, had I started cheating in a clever manner, I'm convinced no one would notice. I would have just needed to cheat one or two times during the match, and I would not need to be given moves. Just the answer on which move was way better, or here there's a possibility of winning, and here you need to Be More Careful. That's all I would need in order to be almost invincible, which does frighten me.

0:30:32 Thomas: Yeah. Yeah, No, that's, I believe that I

0:31:10 Andrew: Yeah. So now you have the situation, and this is where I want to detour over to the poker world. Because this that sets up kind of really nicely the dilemma here, Which right? Is, how do you go about proving, potentially proving in a court of law, to back up a statement that is 100% defamatory when the fraud can only be proven inductively, right?

0:31:31 Thomas: Was gonna say yeah Well, 'cause you didn't say it. I was going to ask you, I mean, is the only recourse for Magnus to just prove the truth of the claim and that gets him out of it

0:31:46 Andrew: Let me say it this way, okay? And this will kind of cut ahead to the punchline. If you are a cheat, and I'm not saying that either of the people we're going to talk about here are.

If you're a cheat and you would like to deploy the legal system to harass those who call you out as a cheater, and you do so in a jurisdiction that does not have particularly robust anti-slap laws, the answer to the question, could you likely take a defamation lawsuit accusing the person calling you a cheat in this hypothetical, a cheäter, all the way to a trial, right, and thereby harass your accuser, answer to that is yes, right?

The answer is that you could use the legal system in such a way as to really accomplish two goals, Number right. One, harass your accusing, and number two, kind of mount a public defense of like, see, I wouldn't possibly sue this person for defamation if I was a cheater, because everybody knows truth is the defense, so all They have to do is prove that I'm cheating, and that's the ultimate defense here, right? And the problem is that when it comes to setting up this proof in a legal sense, really you are talking about inferences that are very, very difficult to prove as a matter of law. So let's detour over to the world of poker.

It used to be, and there are clips you can find, that one of the ways in which you would cheat at poker is by like looking over at your opponent's Whole cards, stealing chips off of their stacks, right? Like basic stuff like that. But that can be proven deductively. You stick a big camera overhead and you watch somebody take the chips off of somebody else's stack. Um, and by the way, that's why most people don't cheat that way anymore. So let me explain very, very quickly the rules of Texas Hold'em. You get two cards dealt to you face down. You gets to peek at those cards, but no one else does, And right?

Then over a series of rounds of betting, there are five community cards that are laid out in the middle, and by the end, you make the best five-card poker hand you can out of those seven cards. And yes, that could be all the middle cards, So right? Imagine that the community cards come out king, 10, 7, 5, 2, and no more than two cards of any one suit, okay?

In that run out, the very best hand, which is called the nuts, will be three of a kind or a set of kings, right, that will be if your your two cards that are face down, which are called your whole cards, are both kings.

0:32:53 Thomas: Yeah. Yeah. Mhm.

0:34:23 Andrew: Then you pair those with the king, you batch those up with the King on the board, and you would say, I have three of a kind kings with a 10 and a seven, And right? That would be the very best hand someone could have. So now assume that your whole guards are, I don't know, ace 10, right, pretty good starting. You've got second highest pair, you've got an ace backing that up. Now, you might, depending on how the run out goes, you might feel like I'm raising with the ace down. I feel really, really good. This person does not have any king, any hand that beats me. You might be calling. You might fold it. You might play this the whole way and go, yeah.

0:34:59 Thomas: You're also You might be looking for a straight or a flush as well, the whole way, yeah.

0:35:03 Andrew: Right. And you could have missed. That's exactly right. Texas Oldham is a game of wildly incomplete, complete information, and it's why bluffs are such a big part of the game, right? Is also now, at most casinos, subject to a very sophisticated technological system in certain cases that that makes possible a unique kind of cheating, okay? And it goes like this: casinos that live stream their poker games, or stream on a delay, use Arfid chips, right, that are buried in the cards.

0:35:33 Thomas: Mhm.

0:35:33 Andrew: Micro-sized, computer-detected radio frequency devices that are then scanned at the table and broadcast over the broadcast. So if you turn on ESPN and you watch a poker event, you get to see everybody's hole cards. And by the way, that makes it, if you like poker, that make it fun to watch poker on television as opposed to interminable, And right? That technology came around about 2005. Before then, it

0:35:48 Thomas: Mhm. Yeah. Yeah. I'm going to say they would rely on cameras under the table and try to like get the angle of when they when they looked at the cards. It's kind of funny.

0:36:01 Andrew: Was, and it made poker not watchable on TV. Even if you like to play poker, it's just not fun to watch. But now, if there's a broadcast of hole cards, that means somebody in the casino knows what your opponent's hole cards are, and they know what your hole cards aren't. And so suppose you agree to run this scam where you find that person, and that inside man transmits the whole cards to you. That's not hard, right? Like, you don't, we don't even have to get into anal beads on that. Like, you can sit at the table with your phone, right?

0:36:12 Thomas: Yeah. I was wondering if the anal beads were going to make an appearance.

0:36:41 Andrew: Absolutely. It's not hard to transmit it to the player, and there's no rule preventing poker players from having their phones, having headphones in, having, no, yeah, all of it. And so I

0:36:49 Thomas: Really? Huh. I Feel like that's changed now. Well, whatever. Side note. I don't know if that's true, because once, once the, like, the the same A.I. that there's solvers that you could plug poker hands into as well that will tell you how much you should bet for the optimum game theory strategy and everything. So I would be surprised if there's no restrictions on that kind of thing. But

0:37:12 Andrew: Could talk about that, but that'll be a long digression, shit. So let's not. Let's that brings us to September 29th, 2022, in which one of the very best poker players in the world, Garrett Adelstein, is playing a super high stakes game. Plenty of people there with hundreds of thousands of dollars at the table. And among his competitors at the Table is an Instagram model and occasional high stakes player named Robbie Jade Liu. In this game, Adelstein's whole cards are the seven of clubs and eight of clubs.

So that's a decent holding, right? Because the seven and the eight are next to each other, so you can make a bunch of straights with it. They're both clubs, so you could hit a flush. And so before any community cards are played, he bets out $3,000. Robbie has the jack of clubs and the four of hearts, which is a terrible hand. Nevertheless, she's got part of big a blind in there, so she calls. Okay, that's not a great decision, but whatever. First three community cards, that called the flop, are played, and that flop runs out nine of clubs, ten of clubs and nine of hearts. So this is an incredible flop for Adelstein, right? Because he now has four clubs all in order, seven, eight, nine, ten, all clubs. So if he hits any club in the next cards to two come out, he'll make a flush.

If he hits six, he will make a straight. If hits any jack, he he will make a straight. But right now, although he has all of those, those are called draws, he doesn't have a made hand. He just has a lot of potential strength. So Adelstein wants to bet and have Robbie fold. He

0:38:00 Thomas: Yeah. Absolutely.

0:38:42 Andrew: Bets 2,500. She calls. That makes no sense.

0:38:46 Thomas: No sense.

0:38:46 Andrew: Whatever. That's fine. Because that flop hasn't helped her at all. And now there are only two more cards that could come out could make that her any better. So the next card called the turn is the three of hearts. Again, that helps nobody. Garrett bets $10,000, okay? Robbie should insta-fold at that point. What she does is re-raises to $20,000. Now, if you're playing, that's a minimum re-rise because it's the amount of the original bet. If you are being charitable, that is a bluff, off, right? You would say, okay, I don't buy that you are saying that you've got a made hand. I'm going to make it more expensive. Garrett re-raises all in. He puts all of his money in the center table. So in order to call, Lou is going to have to put in $110,000 into this pot, So okay? Here's the thing about poker, and I know you know it, our listeners, if you're not a poker poker player.

There's kind of a weird paradox right here, and that weird paradox is that Robbie technically has the best hand, even though her hand is terrible. She's got the pair of nines on the board, And right? Then she has jack high in her hand. And that is actually better than the pair of Nines plus the eight high that Adelstein is holding. But nevertheless, you cannot call in that

0:38:46 Thomas: Yeah. Yeah.

0:39:56 Andrew: Situation. If you think your opponent is bluffing because the cards that he is likely to bluff with are better than the cards you have. And you can't call because there's no way for your hand to get better. Imagine you call and a jack comes out. Well, great. Robbie, you now have a pair of jacks. That's way better than having crap. But unfortunately, that would make Adelstein is straight, right? Just on a level that is the equivalent of Magnus's response to losing to to to Neiman, every single person, now you don't have to be a world champion poker player. If you've played poker once, you're like, right, obviously you fold here. And you know what happens next, which is Robbie calls the all-in, she puts in 109 plus thousand dollars and they run it twice. I'm not going to explain that.

0:39:56 Thomas: No, there's no way. Exactly. Yeah. Yeah, yeah,

0:40:43 Andrew: And neither Of the two cards that come up help Adelstein at all. They're no club, no six, no jack. So she wins this enormous $250,000 pot with a jack high beating an eight high. Adelstein has the same reaction that Magnus Carlsen has, which is very, when the hand is over and and sees what happened, uh, suspects that that she was cheating, and and so he starts interrogating her. Is a potential sexist component to this? I don't, I don't want to endorse any of that. I will say, um, players sit across from each other, and you know, and try and intimidate, and and can take this however you want. These are aggressive, potentially intimidating questions, but not, he's not screaming. He's not yelling. And he says, hey, why'd you call there? And exactly like Hans Niemann, right, not being able to explain how he won versus Magnus Carlsen, Lou is unable to explain why she called here.

0:40:43 Thomas: Exactly.

0:41:39 Andrew: Right. Right. First, she says, I thought you were bluffing with ace high, to which he kind of dryly says, right. But you have jack high. And then she says. Well, no, I mean, I think I had a pair of threes.

0:41:50 Thomas: Yeah which is actually the truth of the situation by the way.

0:41:52 Andrew: Problem With the, "I thought I had to pair threes," is you see her very clearly check her cards like a lot before Before The call. And it's the three of hearts on the board and it's the four of hearts in her hand. And so it's really hard to say, "I thought I had the three of hearts," when you're looking at the three hearts on the board. I, you've sort of gotten behind me, I think she had a pair of threes. The problem with concluding that Robbie Jade here is cheating, is that disproving the excuses does not get you to, okay, therefore the converse is correct, right?

You also have to weigh the probability of how did you organize this conspiracy? Who at the Hustler Casino has the ARFID chips that, you how did you break that person? And then there's a subsequent part of the story in which, you know, an employee comes by and it appears to steal some chips from her stack, but none all of the conspiracy stuff is way less probable than by far the most probable explanation, which is some version of, oh I screwed up playing this hand. It was for an awful lot of money. I did an unbelievably dumb thing, and then I said nonsense word salad

0:42:00 Thomas: It doesn't matter.

0:42:21 Thomas: It makes no sense.

0:43:04 Thomas: Yep.

0:43:04 Andrew: To cover up the fact that I was embarrassed about getting stupidly lucky on one hand.

0:43:09 Thomas: Yes. Today's show is brought to you by Up First by NPR. Oh, I love NPR, I'm so excited to have them as a sponsor for today's show, and you need to check out Up First. Look, we're all familiar with the term doom scrolling. That can honestly be what it feels like to be on the show sometimes, because there's so much doom. Trouble is that we all want to know what's going on in the world, obviously, but it's hard to not burn out on bad news. So if this sounds like you, I recommend that you listen to the Up First podcast on NPR, because Up First provides the three biggest news stories to start your day. With digestible 15-minute episodes, Up First provide all the news you need, so so you can get back to your life and feel informed without losing your mind in the process.

0:43:09 Andrew: Right.

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0:44:38 Thomas: I think she clearly thought she had a three. I

0:44:41 Andrew: Funny. I don't, I don't think that at all. But I

0:44:42 Thomas: Well, Your reason for why, so, I, I don't play poker maybe as much as you, I play a little bit, and I, you know, I do this all the time, where I accidentally see the wrong card that I have, so maybe that's why I, I'm susceptible to this, but your reason of, oh, what disproves that is that she looked at the cards more, doesn't, that's nothing, because once you your brain is convinced you have a certain thing, if you look again, I, I think it's very plausible that you're just not actually seeing it.

0:44:49 Andrew: Interesting.

0:45:10 Thomas: So I think that's and she even replied to a tweet know, there was somebody tweeted that that's what they thought. And she like favorited it or whatever. But she's also doing a really kind of annoying thing where she's just not giving straight answers to stuff like whatever. She's free to do that. But like it's also kind of makes it difficult to like be in her corner or anything. But one way or the other, I guess we overwhelmingly agree that makes it no sense that she was cheating, not only for the reasons you said. But if she were cheating, the cheat move to do would have been to fold. If you have the information of all the hands, you would fold because that's the better move to do unless

0:45:21 Andrew: That Unless

0:45:45 Thomas: You know what card is coming.

0:45:47 Andrew: You Know Unless You, that's right, unless you have the information on the, the cards that are coming, that is absolutely correct, and at that point, right,

0:45:55 Thomas: I mean, that's just insane. You know? Yeah. Then that would make your betting too. Like she would have had to bet in the perfect way to keep him on the hook.

0:45:57 Andrew: That, yeah, she called and and then did that fishy min min re-raise.

0:46:04 Thomas: Yeah. Called and re-raised and Yeah.

0:46:07 Andrew: But yeah. So we're saying the same thing. How

0:46:09 Thomas: No, but imagine. So then she was doing that brilliantly rather than just be like, well, I know I'm going to win. So I'm going to bet a bunch to get, you know, like she would both have to be amazing at poker and amazing at cheating rather than, you Know, like it, it doesn't make any sense. Cause yeah.

0:46:15 Andrew: Right. Yeah. Rather than I just did a dumb thing. And now I have stumbled for words about, you pulling a Homer to succeed despite despite idiocy. I think was how it was defined in it

0:46:33 Thomas: And it's, it's frustrating. Cause a bunch of people, you who don't know anything or trying to like make calls on this. And they're like, you don't get it. She was a, she called his bluff. She won. That means she's an expert. It's like, no, you, you don't call a bluff with nothing. You have to to call a bluff with a hand that would beat a bluff you

0:46:48 Andrew: That would beat the thing that we you were bluffing. That's right. And and

0:46:50 Thomas: Yeah like you can't call a buff with nothing you have to yeah

0:46:54 Andrew: And poker pros have like plugged in all of the bluffing hands and when you do that you have seven percent equity right, like in other words she loses to 93 percent of the hands. The only bluffing hands that she beats are seven eight, right? Maybe it's possible that, you know you might take that line with just a lower club draw, right?

0:46:57 Thomas: There's no way yeah but keep in mind all also all this happened before the double river so she again would have to know because even then if she knew his cards at that point that's still a bad move like the cheat move is to fold

0:47:19 Andrew: Right, it under 50% to win even if she knows all the cards at the bottom. That right.

0:47:30 Thomas: Yeah the way you win at poker by by the way, is not winning every hand. The way you win at poker is to make sure you fold the bad hands without betting a bunch and getting, you know, hooked into betting too many chips and losing badly. It's minimizing your losses just as much as it is maximizing your gains. So the cheat move would have been to fold in that instance.

0:47:51 Andrew: Would you go about proving proving that a player like a Robbie Jade Lou uh in a situation like that assume that this player does this all the time how would you go about proving that they really are cheating leaving behind the actual inference that uh no the best explanation now is must be able to see your opponent's hole cards.

0:48:15 Thomas: So you're saying, assuming she were cheating, how would I prove it?

0:48:17 Andrew: Assuming she were cheating. Yeah.

0:48:19 Thomas: I mean, I think the only choice you have is to actually get the physical evidence of cheating?

0:48:24 Andrew: Interestingly enough that there is a case that is very, very similar to this. We don't have time to do it. Google Mike Postle, P-O-S-T-L-E or Postle. Okay. It is almost identically this case, over a year's worth of time. Right? And the idea is, yeah. Is So it possible that you make an unbelievably dumb dumb decision and get unbelievably lucky and it pays off once, it sure is. Mike Postle had a win percentage of 94%, which by the way, in and of itself is prima facie evidence, nobody wins right? 94% of the time at poker. The variable nature of the game prevents that from He was playing a 1-3-2-5, which are the lowest possible stakes, and ran up a $250,000 bankroll over the course of a year at the card room. Actually, card room near you,

0:48:39 Thomas: Yeah. Pays off once. Yeah.

0:49:16 Thomas: Oh,

0:49:16 Andrew: The Stones card room, yeah.

0:49:17 Thomas: I remember This story. Well, I, I guess, okay, to take that bait, I suppose if you had like a year's worth of data, if we weren't talking about, and you said that, you said, "Dude does this all the time." I missed that. So yeah, I could imagine building a statistical model. Now, again, you have to convince a jury of this. So you have to explain math to a jury, which I think is a really tough, tough battle, but I bet you could do that. You could get expert testimony of pro poker players saying like, "Hey look, this is, you know." You could build some models, you could say this is just not possible under chance, like

0:49:46 Andrew: That takes us back to chess.com, because that is exactly how the chess.com secret sauce works for detecting cheating, which the inference gets stronger over time. The more evidence you have that maybe somebody is using a solver, because what they do is they assign a score to how well you've played the, the overall match in Yeah. In addition to for each potential move. Right. Here's the thing. Hans Niemann is a very, very good player. Right. Hans Nieman has an ELO score of 2460, had an ELOs score of twenty four sixty five in 2020 and again is in the top 40 players right now. So, yeah, it's I think it's twenty seven hundred now. Yeah, that's right. Who are that good will have what they call so-called perfect games, You will right? Play a game indistinguishably well from

0:50:14 Thomas: Accuracy, yeah. I Yeah. It's quite a bit higher than that now, right? I Think he's 2700. I want to say or Okay, yeah. Right.

0:50:51 Thomas: Yeah.

0:50:51 Andrew: The Optimal play. The thing is, even if you're Magnus, right, are still rare, right? And so the way in which you establish this inference in such a way that you would prove it to a jury is by collecting longitudinal data over time. What the chess.com report does, we'll link it in the show notes, is it looks at the, because they have, right, all of Hans' career. And so what they can do is they can point to individual anomalies, right? Over the course of that career. So, there's some things that are really that that would make would you say, hmm, I have some skepticism here. So, for example, very So Hans's rise, Hans Niemann's rise as a player, I'll read this. Outside his online play, Hans is the fastest-rising top player in classical over-the-board chess in modern history. With each new generation of chess players, there's a small group who eventually emerges the top players. Looking purely at ranking,

0:50:51 Thomas: Yep.

0:51:07 Thomas: Yeah. Well,

0:51:53 Andrew: Hans should be classified as a member of this group of top young players. While we do not doubt that Hans is a talented player, we note that his results statistically extraordinary. Are In other words, from 2014, he had an average strength of 67.7.

0:52:08 Thomas: Keep in mind, he was like 10.

0:52:09 Andrew: Yeah, that was eight years ago. He was 11 years old. That's right. In 2022, that was 90.899, right? That slope, if you plot that, is the sharpest slope of any chess player in history, right, and that includes Magnus, right you break that down year by year, you wind up with granular data where it's not just, so you zoom in on the slope, it's this hugely vertical line. But when you actually zoom in it, it is an even sharper line, and then a plateau, and then a sharp line, then a plateau, and another sharp line again. In. And the way chess.com describes that is Hans had two rating plateaus that are uncharacteristic of the class of improving chess prodigies who become elite grandmasters.

0:52:13 Thomas: Yeah.

0:53:01 Andrew: And then they sort of give the data. And they talk about other aspects where the data doesn't seem to match up. So, for example, another key data point that informed our analysis is the fact that there are 13 players currently ranked in the world's top 50 who are younger than 25. That includes Hans. Hans is the the only player who became a grandmaster at age 17. The other 12 players all achieved the title between ages 12 and 16. As an active rated player at ages 15, 16, and 17, Hans' rankings had of 23, 13, 24, 60, and 24, 65. The conventional wisdom is that if you are not a grand master by age 14, it is unlikely that you can reach the top levels of chess. While that statement may seem discouraging, it has been borne out in modern chess. Greats like Fischer, Kasparov, Carlson, and all the modern grandmasters who have been established as top five players were notable grandmassters by age 15 at the latest.

0:53:53 Andrew: So put all of that together, and what situation do you have? I think you have a Garrett Adelstein situation here, right? You have Magnus Carlson is looking He's white, he's got the advantage. He's the white pieces. Wouldn't say he's a white piece.

0:54:07 Thomas: They're both white. Let's be real.

0:54:08 Andrew: Yeah, he seems, you know, Scandinavian. Yeah, that's right. He's looking across at somebody. As Magnus says in his own statement, he says, this person doesn't seem to be unnerved in playing me right now, right? And as black, right, he says Quote, "I had the impression he wasn't tense or even fully concentrating on the game in critical positions while outplaying me, black, as in a way that I think only a handful of players can do. This game contributed to changing my perspective." So what you have is, again, you know, who knows? Maybe, situation right? Is you have a single data point. The chess.com report, by the way, very, and in such a way as to protect themselves from defamation, very clearly says we do not believe the evidence establishes that Hans Niemann cheated in that particular match against

0:54:25 Thomas: As black, by the way. Yeah, as you said. Yeah as though he wouldn't have been tense if he were cheating. That's kind of weird, but yeah, sure.

0:55:07 Thomas: Interesting.

0:55:07 Andrew: Magnus Carlsen. Yeah, will not take that line.

0:55:11 Thomas: Then wouldn't you think it's weird that they would publish an entire report about? It could have anything to do with the fact that they're in business with Magnus Carlsen and we're set to buy his app for like 80 million dollars. Or something like that,

0:55:22 Andrew: And those allegations, that brings us to the complaint. Those allegations are laid out in pretty significant detail in Hans Niemann's lawsuit, which is that Play Magnus has grown into one of the two largest online chess companies in the world, second only to chess.com. In August of 2022, Chess.com agreed to acquire PlayMagnus for nearly $83 million and merge the two companies in order to monopolize the chess world. So yeah, there absolutely is an economic component here. Year. This lawsuit, if we were doing the reading backwards, right? Cause of action number one is slander. Cause of Action number two is libel. Those are just two aspects of defamation.

Cause of Action Number Three is a violation of the Sherman Antitrust Act, which is a clever argument that we do not have time to kind of go down that rabbit trail. Cause Of Action Number Four is tortious interference with prospective business, right? In after accusing Neiman of cheating, nobody wants to hire Hans Neiman to tutor them in chess anymore. Cause of action number five is a civil conspiracy, you by and among the defendants. And so the important thing to note is, other than the unfair competition claim, which again, just have to strip out for for purposes of this discussion, the two other torts, right, the tortious interference and the conspiracy, require as the predicate action, right? That defamation take place, right.

So those are contingent upon there being a wrongful action. That wrongful action is wrongfully accusing Hans Niemann of cheating. Because the Sinkfield Cup was in Missouri, this lawsuit was filed against Magnus, the Magnus Group, and other folks, Danny Wrench, Karu Nakamura, who commented on the stream and chess.com in Missouri.

0:56:19 Thomas: Definitely,

0:57:14 Andrew: The reason for that is because Missouri has very, very, sehr limited anti-SLAPP laws. And so to go back to the Mike Mike Postol example. Mike Postola filed his claim in California. And as you know, Yeah, California has great anti-SLAPP laws. Mike Postol dismissed out his complaint before answering the anti-SNAP charges filed by the folks that he had sued for defamation and so took default judgments, eventually went into bankruptcy. Eventually, there was a settlement out of that bankruptcy bankruptcy related to the legal fees there. So the bottom line is, and again, I have not accused anybody here of cheating, not even Mike Postol. But the bottom line is, if you were a cheat, it is very, very difficult to prove, for anybody to prove that you're a cheat. And if you file in the right jurisdiction, it is sehr easy to use and to weaponize a potential defamation lawsuit to silence your critics and change the narrative.

0:57:28 Thomas: Has good anti-slap loss.

0:58:15 Andrew: And is willing to say, than Magnus, nobody who's looked at the data is willing to say on the basis of one data point that Neiman definitely cheated in that one match against Magnus. All you can do is look look at it and go, man, Sherlock's really suspicious, right? Sherlock's awfully, and that's what Magnus is feeling. And you totally understand that reaction. There, yeah, are only five people in the world that could beat me as black, and this guy isn't one of them.

0:58:39 Thomas: That is so this is so interesting, uh, because I have the exact opposite opinion. I don't know if you're just expressing the argument or not, but I think he didn't cheat in that game, and I think that Magnus, I, I actually hope he wins this lawsuit, because I, hope that Neiman wins this lawsuit because I think what If you look at the analysis of the game, Neiman didn't play particularly well. Magnus played badly, he made two bad moves that led to his loss. I think that it's possible maybe some of these mind games played into it. I also think if you break down what's happening, nothing makes any logical sense here. Like, by the way, even the chess.com report indicates that what you just said, like, you, there's no evidence that he cheated on the board, so why is there a chess.come report?

What does that have to do with anything? Would it Why, why, why would a side company do something they've never done with anyone else, which is publicly reveal all these, like, things that Neiman that may or may not have done that, by the way, don't even bear on the question of over the board anyway, because it's one thing to build a model of somebody's potential cheating in an online forum where the matter of how they would cheat is a given.

0:58:53 Andrew: How very interesting. I

0:59:42 Thomas: That's very easy. We all know anyone could pull up the chess solver and cheat instantly, easily, unless you're doing an extremely fast blitz game, perhaps. It's very easy. So when you're dealing with that, it makes sense to be like, okay, just look at statistics, the you can pretty easily establish, establish when you're talking what he would have had to do to be cheating over the board in real time. And by the way, you know, in a game that that that Magnus lost because he made bad moves rather than, uh, Neiman making particularly good moves, I, I just think that because they had this relationship, I, I, my speculation is that maybe Magnus was privy to more info. I think he even admitted that in his statement, that he's privy zu more info than the general public was, and maybe, maybe that colored how he was looking at the game, the very game he was playing. Maybe it got into his head. I don't know. Maybe he had a bad day, but he made bad moves.

1:00:28 Thomas: He lost and then overreacted, in my opinion. I think this is very weird. I mean, I don'T know

1:00:34 Andrew: Love that, you know, we can sort of look at the same set of data points. Me, To what I also kind kind of factor in in terms of understanding, sympathizing with Magnus's view that, you know, sort of must this be cheating. So you've got several things, right? The first you have, and again, didn't we sort of reduce this to a sentence, but OA listeners will know, right, you have on the one hand, you now, the carjacker Willie issue, right. I want to characterize this person is a cheater in order to prove that they were likely cheating in this instance. And that is something that is absolutely a facet human of nature, right? And that when you read between the lines, not that buried far between the line, but a of Magnus' statement, right, Magnus is like, yeah, I almost didn't play this event because, you know, this guy Niemann was there, and I think Niemanna's a cheat. Why does Does he think Neiman's a cheat? Because he's been working very likely.

1:01:29 Thomas: Relationship in my head with chess.com.

1:01:31 Andrew: Yep. Exactly, right? He's beenworkingcloselywithchess.com and chess.com very likely in disclosing, right, its due diligence, If right. They're buying out your company, they're going to show you, hey, you're going become a part.

1:01:43 Thomas: Well, And another component of this that we haven't talked about that I'm more privy to because of following it on the Reddit is like the chess. Chess.com CEO's statements and tweets during this, it just, to me, it reeks of like really just bias in terms of helping out someone you're, you're in a relationship with. And I, I just, I find it so inappropriate what, Chess.com has done. I mean, if if Magnus wants to make this claim, make the claim, but for, you let me put it this way, if chess. Com didn't have this relationship with Magnus, there is no way any of this would have, they would have done any of this.

1:01:48 Andrew: I Agree with that. I would throw sort more, ask data points at you, um, the first is, and it's why I gave the the Robbie Lou example, um, the post-game interview with, with Neiman, is I on a par with the post game interview with.

1:02:30 Thomas: No way, not even close, I disagree, I.

1:02:32 Andrew: Uh, but they, like, it's utter lack of specificity in in terms of, you know, how'd you make, well, you know, I just, I pulled off a miracle, and you know, sometimes what, and, and like, as the interviewer is attempting to ask about specific moves, he's kind of brushing it off. I I thought it was a bad interview.

1:02:49 Thomas: Don't think it was a good. Interview, but but I, I, I think that, that he also discussed having specifically prepped that line because Magnus had played it before and he was on the lookout for it. That stuff, that's at the very least way more plausible than the poker example, example, which is just nuts. Like, there is no world, there's no possibility in the world that that was anything but a mistake based on how the game of poker works. Whereas, I, it, at least we can disagree, but I find at least a different league of claim to say that, like, that interview could have happened if he was a guy who just beat Magnus freaking Carlson and was trying to like do an interview about how he did it, and he at least offers that he prepped a specific line that. That might account for the.

1:03:32 Thomas: Fact that, maybe you got, he lucky in this instance.

1:03:32 Andrew: So the chess.com report is a section 10 does address that claim. And what they say is Neiman says, by some miracle, I checked this opening today. And it's like, it's such a ridiculous miracle that I don't even remember why I checked it. And then Chess says, in fact, Magnus has only played this opening twice previously, both before 2010, despite the fact that I remember in the interview, Neiman says, yeah, he did it in this 2018. Chess continues, in the position after Hans castled on move four has never been seen in any of Magnus' games. You're talking first three moves tops, it's

1:04:07 Thomas: You are really Putting a lot of faith in this chess.com. I'm curious if.

1:04:12 Andrew: Interesting.

1:04:12 Thomas: You looked at any other analysis beyond the analysis from the entity that is very biased to come to a certain conclusion. I've watched a lot of videos of other analysts who are kind of in disbelief that this chess.com report came out. There's another thing about chess, you can argue that exact positions haven't happened before, but there's. There's yeah.

1:04:31 Andrew: But they're related. I was going to

1:04:33 Thomas: Related positions, mere position.

1:04:33 Andrew: Point that out. I And was gonna give sort of the last equivocal fact. And then I feel like, and I did look at other sources, so I feel Like I am I was just mention that point. And I'm gonna mention the counterpoint to this as well. Well, final argument is we also measured that for the first three games of the Sinkfield Cup, Hans played with a Chess.com strength score of 97.17. That was including his round against Magnus, which, again, I would quibble with the idea that Magnus played. Neiman also played very well, statistically speaking, above his rank in that particular match. So it wasn't just like, know, all of a sudden Neiman showed up drunk or like you or I could have beaten him on

1:04:35 Thomas: Yeah.

1:05:11 Thomas: I, I granted that, but but I think if you look at the flow of the game, what happens first is Magnus makes a bad move first. So it's another layer of like, boy, what are the odds? Like he's cheating, but also Magnus made the bad move First when he's white, by the way, like it, I don't know. It's a, I hear you, But

1:05:26 Andrew: Yeah, fair. First three rounds, score of 97-17. After round three, after the allegations, which again, I want to be clear, you are 100% correct. Chess.com would not have done this if Hans Neiman beat Thomas Smith. Absolutely, it is that relationship. After round three, the event organizers, in response to the cheating allegations, added a 15 minute delay to the broadcast of the chess moves. For rounds four to nine, Hans achieved a strength score of 86.31. Other players had some interest. So that's a pretty, that's 11 point swing, 10.86 right? Point swing that his games got much worse after there was a 15 minutes delay in. However, in the same field, there's a player named Alireza Ferruja, whose strength score in rounds 1 to 3 was 88.25, and for rounds 4 to 9 was 100.96. In other words, he got 12.7 points better.

1:05:40 Thomas: Do you get the extra 100.96? How do you go over 100?

1:06:26 Andrew: I don't know how the strength... The strength score goes to 150, but it's very rare to...

1:06:29 Thomas: Oh, I thought you were doing a percentage accuracy score.

1:06:32 Andrew: No, no, no. This is their internal strength score.

1:06:34 Thomas: Oh, oh, OK. I'm sorry. There's also they also do percentage accuracy scores. So, yeah.

1:06:37 Andrew: Yeah. So, in other words, is that potentially a statistical artifact? It is potentially a statistical artifact. Somebody in the same pool had an equal change in the opposite direction, and there's no plausible causal statement.

1:06:43 Thomas: I no. And you're a baseball fan. Does someone who bats 325 for the season bat 325 every game? Game.

1:06:51 Andrew: Yep. Nope. Nope, no, and that's absolutely correct. And you used to call it aliens inhabiting the body when some player, a career 220 hitter, would hit 350 for a month, right?

1:06:57 Thomas: Yeah, that's

1:07:07 Andrew: Yep.

1:07:07 Thomas: How probabilities work.

1:07:08 Andrew: That is how probabilities work. It led to, here's how chess characterized it. In our view, this game and the surrounding behaviors and explanations are bizarre. And in light of Hans' past and his record-setting rise, it is understandable that some in the chess community have used this game as a way to justify additional scrutiny of Hans's play. However, we are currently unaware of any evidence that Hans cheated in this game, and we do not advocate for any conclusions regarding cheating being made based on this one encounter. And I endorse that. So again, I want to make sure that I'm very, very clear here. I am not saying, uh, I believe that cheating took place in that game. I matched it up against the the, Lou example, because I think in both cases, right. The The, more parsimonious explanation is the less interesting one, the less, you know, controversial and certainly the less anal beady one, um, yeah. Like, weird you things happen.

1:08:00 Thomas: But well, even taking them at their word, there's no evidence he cheated in that game. And I guess what I want to ask, I'm worried that we won't have delivered what people would have wanted from this episode is, you know, For one, I want you to answer the quick question of he asked for $11 billion, and some people took that as a sign that it was the whole bullshit thing. So if you wouldn't mind kind of addressing that part real quick.

1:08:23 Andrew: Glad you asked the question this way, because one of the things that I said is that this is a way in which cheaters could weaponize the system, um, but remember, this is also a way in which part of defamation law is a way in which people who are, uh, defamed can, can vindicate their... And so the numbers here, in my view, are not out of line. You, I'm not going to make Alex Jones's argument for him, right, that the largest dollar figure is the dollar figure in the Sherman Antitrust Act. Well, there are several hundred million dollar figures, anti-competitive seem, you the kind of thing that are perfectly in line.

1:08:41 Thomas: Defamed?

1:09:09 Thomas: Furthermore, you get to ask for whatever the hell you want, right? I mean, that's kind of the legal point that I think maybe some people are missing.

1:09:11 Andrew: Right. Yeah, yeah. Yeah. And Well, here's what I would say is I think those numbers are defensible for the Sherman Antitrust Act. And then you tend not, since that's your worst cause of action, it's also your most clever, like you would not want to undersell your better causes of action by putting a lower dollar value on it. So you say, you know, know, $100 million for defamation and $100 million for the civil conspiracy, notably the tortious interference claim, right, which is much more closely tied to, okay, what kind of hard business losses can you show here? You can absolutely show real harm, specifically, right? This is paragraph 196, Neiman has suffered extensive damages as a result of defendants' conduct, including but not limited to the loss of one, appearance fees for the tournaments that he was not allowed to participate in after this event.

1:10:09 Andrew: Two, access to potential tournament prize funds at the Global Championship, the Tata Steel Tournament and future chess tournaments. Three, access for the vast majority of opportunities to increase his rating by playing matches against other top-rated players. Four, his reputation in the professional chess industry and the public. And five, and this I think is by far the strongest because he can show past contracts matched up against future contracts, potential endorsement sponsorships and business and marketing opportunities like coaching people at chess. Are things I have won tortious interference claims, right? Those are kinds of torts that juries are very very well established in, uh, in figuring out and going, Oh yeah, you, you would have signed this contract, but for this third party came by and said, Hey, don't sign this contract with them. You know, to say, Hey every year, you I'm considered this meteoric rising young chess champion. Lots of people come and want to learn chess from me. And now nobody wants to come and learn chess for me anymore. That, will help backstop, you those potential claims. So, yeah.

1:11:10 Thomas: That all makes sense. Ask is the kind of granularity of what matters here because again if produce no evidence of any kind that Hans cheated in that game does Magnus still get a get out of jail free card by producing evidence that he cheated when he was 12 or 17 on online in a different forum like genuinely I don't know how that would work like we could even stipulate okay he did cheat in online games let's say but

1:11:40 Andrew: Well, he did. I mean, that, you know.

1:11:42 Thomas: Yeah. Well, Or, more than, sorry, more to the extent that Magnus claimed, like, more than, you know, he admitted or whatever, does that mean, if somebody has cheated once, is it, free a you get to slander them forever in the future about cheating, even when they aren't? Yeah.

1:11:58 Andrew: So, no, we elided right over this, as, you know, the carjacker Willie inference. But I would struggle as a lawyer, I'm sure there's a creative way to try, but I think that the prior bad acts plus the general catch-all of prejudice outweighing evidential value is going to keep out the the past cheating, because that's exactly the inference that human beings do draw, right? That Magnus, is he's like, oh yeah, this guy's a cheat, so he's probably cheating in this game against me, and that's exact exactly what you can't rely upon at trial, right?

1:12:33 Andrew: You cannot introduce evidence before the jury of, you know, character that says, yeah, this guy's a a cheat, so he's probably cheating here. Well, prove it.

1:12:33 Thomas: And Magnus Said Specifically, like, in the game he played against him, he made claims about, like, he wasn't trying, da-da-da. So, like, in order for Magnus to win here, in this case, lawsuit, would he have to specifically prove to the jury, or at least, you know, like, convince the jury that Neiman cheated in that game that he quit during, or in any, like, what do you think would be the the minimum he would need to prove? They cheated at some point in the tournament, in that specific game. You know, like, how would that, what's the granularity of that?

1:12:40 Andrew: Yeah.

1:13:11 Andrew: The granularity depends upon the statement that you've identified, uh but, as as we've pointed out, right, and as the complaint makes clear, there are specific allegations by Hans Nieman regarding that particular game, right, the Sinkfield Cup game, and so, to to prove your case of defamation here's. The fact that this is defamation per se, right, it is accusing you of fraudulent business practices, that only means that then the plaintiff to prove the does damages portion of entire tort, right? So, in other words, damages are presumed when you defame people in a particularly bad way. And we've talked about this before, right?

Other kinds of defamation, per se, are accusing someone of having a loathsome disease, which gives you an example, you know, which give you an indication of old-timey Saxony was developed. When so that element is out. So you only have to prove three remaining elements to prevail on a defamation claim. Number one, you have to prove that the statement was false and purporting to be fact. So that is the statement that says Hans cheated in the Sinkfield Cup. That is a statement that is capable of being proven true or false and is purported to be a fact. Right.

Magnus did not mean that as an exaggeration. He did not mean that, as you you know. Probably it's a statement of fact. Number two, you have to prove that you published or communicated that statement to a third person. Well, you did it on Twitter and publicly and in interviews. So

1:13:26 Thomas: Yeah. Yeah. Yeah,

1:14:45 Andrew: That's not a hard element. Yep. And number three, you have to prove fault amounting to at least negligence, right? That's going to be kind of the hardest element of that. Because if you, again, remember, at the end of the day, we're talking about a civil court system. So the question of truth is, you more likely than not, is it true or false? I don't know. It's part of why I spent all of that time suggesting that that it would be virtually impossible to persuade a jury on the basis of a single event

1:14:45 Thomas: That's easy.

1:15:07 Thomas: Right. Yeah.

1:15:18 Andrew: Inferred fraud took place. So I me to believe that Hans is likely to prevail on those first two elements. And then really what it is going to come down to is, there something to fault how Magnus reacted here? Or is a jury going to be sympathetic to the idea of, hey, is the level of reasonable investigation that I did to determine whether this was true, and I stand by that. And not, I was not, remember, the standard is fault, culpability at the level that is at least negligence, right? So at least careless, right, at some point, if you admit, okay, man, I shouldn't have called you a cheat, but like, I still you think you're shady or something like, right like, well, that that would actually work to your detriment in this example, right.

1:16:09 Andrew: Because you would be admitting that you were at least negligent in kind of jumping from what you saw to the statement that you made. How, if this goes forward, it will break down. But if you're asking, you is there going to be a motion to dismiss, gravamen of this complaint is not going anywhere on a motion to dismiss, right? Like this is a fact-intensive inquiry and we

1:16:23 Thomas: I'm going to ask your prediction. Yeah. Well, of course.

1:16:35 Thomas: Wow. So we're headed to settlement or trial, you think? All

1:16:38 Andrew: Are headed to discovery and then settlement, in my view.

1:16:42 Thomas: Right. Well, there you have it. A very long breakdown, but a good one. Uh, be very, I imagine this will be one of those difference of opinion among the listeners, one people have strong opinions about this, but thanks for the breakdown.

1:16:51 Andrew: Love it.

1:16:55 Clip: And thank you, Let's go!

1:16:56 Andrew: Woo-hoo!

1:16:57 Thomas: Now it's time to thank our new patrons at patreon.com/law, enjoying all the goodies. The Law'd Awful Movies, by the way, is Lot Awful Podcasts with Morgan Stringer, talking about uh Norm something. Norm pat is his podcast where he talks about losing his client a billion dollars It's, uh, whew, it's good. You're going to want to hear this Law'd Awful Movies available on patreon.com/law. Uh, so why don't you start us off? Thank you. Our new patrons and

1:17:08 Andrew: Norm Pattis. It's so good. Yeah, a big thank you to Alice Jade, to Nick, to Aga Reece, to Mike Williams, hopefully the uh receiver, um, Erin Carlson, maybe some relation to Magnus who knows, Christopher Sienko, a dash to Ranked Choice Mangos, Joseph Morse, TrayTableMafia, ArtieFitch, Knit Wit, that's K-N-I-T wit, Fraa Paul and Andrew Philpott. Take it away, Thomas. This

1:17:52 Thomas: Thank you. Hot mess response team. Nice. Don't take illegal advice from a podcast. Sure. Robert Oberlies. Sean j callot. Sif. Mary, Mary, quite contrary. How does your garden grow? Peekis Art. Shara Safer. Don Thompson. MTG for VP, or how white sheet hoods came out of remission... Adam, Aaron, Tyler Floyd. Will you marry me? He, he JK made you flinch. Enjoy the pod. Also. Hi, Jacob. That was great. And J. Tanner Martin. Thank you so much. New patrons.

1:18:16 Andrew: All right. Oh, Jay Tanner Martin, that sounds like a captive industry if ever I've heard one.

1:18:34 Thomas: And that's our show. Thanks so much for listening. Everybody. We'll see you next time.

1:18:37 Clip: I move for a bad court thingy. You mean a mistrial? Yeah, that's why you're the judge and I'm the law talking guy.

1:19:11 Clip: www.openargs.com. Be sure to join the Facebook group at facebook.com slash groups slash Yodel Mountain and follow us on Twitter at OpenArgs. This podcast is a production of Opening Arguments Media LLC, all rights reserved. It is produced with the assistance of transcriptionist Heather Leverage, production assistant Ashley Smith, and additional contributions from Morgan Stringer and Debra Smith. Special thanks to Teresa Gomez, who runs our live shows and heads up the OA Wiki, follow at OA Wiki on Twitter. Additional thanks to the moderators of the Opening Arguments Facebook community, Emily Waters, Alicia Cook, Eric Brewer, Natalie Newell, Brian Ziegenhagen, and Teresa. And finally, thanks to Thomas Smith, who edits the show and created the fabulous theme music, which was used with permission.