Episode 9: The Lawsuit

[00:00:00.47] [Rooked theme music plays]
[00:00:05.68] [Nicole O'Byrne] The Rashomon effect is named after a movie directed by Akira Kurosawa in 1950. I show this to my students and they think, wow, what's-- what's happening? It's a black and white film from the 1950s, but it is about a sexual assault homicide that happens. And a lot of film people know this movie. It's quite famous that it's told from four different perspectives.
[00:00:28.49] So what they call the Rashomon effect in law is-- you don't really know the story until you explore it from all the different perspectives, and then because trials have a cut-off date, you can't be there forever debating everything. You can't have an unlimited number of podcast episodes. Somebody's got to make a determination.
[00:00:47.48] So the Rashomon effect is, you do the best from different perspectives. What's the truth? We better be careful about making any proclamations about what the truth is, but that at some point, we have to make some kind of decision.
[00:01:00.68] Now, in the context of a jury trial, the jury gets together and deliberates and says, "Okay, this is what we believe. This is the most likely way that the points of the story all come together, and the most credible narrative, and thus we will then pronounce our verdict or whatnot." The same thing with a judge sitting alone.
[00:01:21.20] So the Rashomon effect-- which I think is being demonstrated in your podcast-- is it is worthwhile trying to look at this story from Hans' perspective, from Magnus' perspective, from the perspective of maybe an outsider, from someone who's very knowledgeable about chess, maybe from a legal expert who knows nothing about chess but knows something about the law. And so, that's been really interesting about this podcast, is to see you navigate all those different perspectives. But that's why you do it, because you're trying to ferret out what's really going on.
[00:02:03.31] [Jess] We're back to our original scandal, and we've got a lot to cover in this episode, because there's been so many updates in this saga.
[00:02:12.32] [Ryan] We started out telling this story because it was something that we both connected on-- my love of chess and your love of drama. But it's become so much more now. It's really gripped the world beyond just chess fans, to the point that there's a movie coming out, based on a book, based on the Hans-Magnus scandal, and the book isn't even written yet.
[00:02:35.53] [Jess] Emma/Emily Stone is in the movie. It's going to be directed by Nathan Fielder of Nathan for You fame. The yet-to-be-written book will be by Ben Mezrich, who wrote the book that ended up becoming the Academy Award-winning movie, The Social Network.
[00:02:51.85] [Andrew Garfield as Eduardo Saverin] You. You did it. I knew you did it! You planted that story about the chicken.
[00:02:56.12] [Jesse Eisenberg as Mark Zuckerberg] I didn't plant the story about the chicken.
[00:02:57.69] [Justin Timberlake as Sean Parker] What's he talking about?
[00:02:58.32] [Andrew Garfield] You had me accused of animal cruelty.
[00:02:59.72] [Justin Timberlake] Seriously, what the hell's the chicken?
[00:03:01.32] [Andrew Garfield] And I'll bet what you hated the most is that they identified me as a co-founder of Facebook, which I am. You better lawyer up, asshole, because I'm not coming back for 30%. I'm coming back for everything.
[00:03:16.08] [Rooked theme music continues]
[00:03:16.58] [Jess] This silly little chess, anal beads, cheating story has gone way beyond what we ever anticipated.
[00:03:24.68] [Ryan] It definitely has. But also, we're not done telling this story the way we think it should be told. You'll get the A24 version later. For now, we want you to listen to the opinions of some very intelligent people, who for some reason agreed to talk to us. And what better way to jump back into this cheating scandal than through a $100 million lawsuit.?
[00:03:49.17] [Cash register chimes]
[00:03:49.66] [VLT plays jingle]
[00:03:57.08] [Jess] Because this is a tale about legal things, illegal things, and other legalities.
[00:04:04.03] [Ryan] This is a tale of cheating, of lies and conspiracies.
[00:04:10.82] [Jess] This is a tale of the game of chess and the potential collapse of its future.
[00:04:17.32] [both] This is Rooked: The Cheaters' Gambit.
[00:04:22.38] [Ryan] Taylor's Version.
[00:04:24.51] [Music fades]
[00:04:25.43] [Gloomy music plays]
[00:04:28.67] [Jess] I'm Jess Schmidt. I'm a podcaster who's bad at chess and good at drama. Plus, I've watched a lot of Law & Order: SVU.
[00:04:37.29] [Law & Order "Dun dun" sound effect plays]
[00:04:38.72] [Ryan] I'm Ryan Webb. I'm a chess player and first-time podcaster. I once took a legal studies class in high school and passed with a 70%, so I feel like I'm the right person to tell this story.
[00:04:51.14] [Jess] That's like a B, right?
[00:04:52.97] [Ryan] Sure, it's-- it's like one.
[00:04:55.13] [Jess] We're not going to analyze the details of the lawsuit with too fine a comb.
[00:04:59.24] [Kenny Rogers, singing] I set out to get you with a fine-tooth comb.
[00:05:05.21] [Jess] But we do want to know exactly what happened and why this multi-million-dollar case seemed to suddenly disappear into a smokescreen of apologies.
[00:05:15.54] [Jess] Plus, we need to consider implications of the lawsuit for the game of chess writ large, if there even are any. What does each party stand to gain or lose? Will Magnus and Hans ever shake hands and play over the board again? Because as of the time of this recording, that's still yet to happen.
[00:05:37.30] [Melodic saxophone music plays]
[00:05:37.74] [Jess] We're going to dive into some of the weirder specificities of the lawsuit. But we're not here to tear apart each paragraph, mostly because we don't really know enough about law to do that in a way that makes sense.
[00:05:50.59] [Jess] But here's some questions we do feel qualified to ask. What's with all the weird language?
[00:05:56.93] [Jess] Why are lawyers seemingly allowed to say, "You have a great argument here that's completely winning, but because of geography, all of your evidence is moot."?
[00:06:07.03] [Ryan] How do you take a war that started on the internet into a courtroom?
[00:06:11.86] [Jess] And does this lawsuit actually matter?
[00:06:15.40] [Music fades]
[00:06:16.83] [Cheerful music plays]
[00:06:17.30] [Ryan] You already heard Professor Nicole O'Byrne at the top of the episode. Without getting too far into Canadian politics, let's just say Nicole and I are from rivaling parts of New Brunswick.
[00:06:29.73] [Nicole O'Byrne] The Fredericton-Saint John, New Brunswick rivalry-- you just have to laugh. Like, every time I say things like, "Oh, but I think Saint John's really interesting. And there's lots of architecture and good restaurants." And people go, "Oooh." And it's one hour away, right? And people treat it like it's a very, very far away kind of thing. Anyway."
[00:06:47.40] [Ryan] I actually have nothing good to say about Fredericton, so looks like I win. I'm kidding, of course. We were really stoked to have Nicole on to discuss the lawsuit, even if she is from Fredericton.
[00:07:00.15] [Nicole O'Byrne] My name is Nicole O'Byrne. I'm an Associate Professor at the Faculty of Law, University of New Brunswick, where I teach evidence law, advanced evidence, Canadian federalism, and Canadian legal history.
[00:07:11.94] Someone showed me how the pieces moved about 35 years ago, and that's kind of the end of my chess experience. And I know-- I know it is a game that people play. That's about the level that I'm at with respect to it. Although listening to all the different episodes of this podcast, I've-- I've realized that maybe I should pay a little bit more attention. A lot of people play this game.
[00:07:36.41] [Upbeat piano music plays]
[00:07:37.06] [Jess] Nicole may be a bit of a newcomer to chess, but she's a complete pro when it comes to law. And this isn't her first podcast rodeo, either. She's one of the hosts for Witness to Yesterday, a weekly Canadian history podcast that examines a particular document, the people behind it, its significance, and its relevance to today.
[00:07:56.35] [Ryan] Hometown rivalries aside, we also are fortunate enough to have Professor David Franklin return for this episode. You've already heard from him previously, but this is where it really comes together. After all, he's a chess lover and a law lover.
[00:08:13.57] [David Franklin] I'm David Franklin. I'm a law professor at DePaul University in Chicago. I teach courses in first amendment, tort law, constitutional law, and other subjects. I'm also a lawyer. I practise appellate law. And I'm also an obsessive blitz chess addict, both online and in person.
[00:08:35.48] [Mellow electronic music plays]
[00:08:37.99] [Jess] But before we dig into our interviews with Nicole and David, I think a quick recap is in order. It feels like forever since we've talked about Magnus and Hans, and that's what this whole podcast is supposed to be about.
[00:08:50.63] [Ryan] Let's jump back into the middle of this saga-- what happened, who's involved, and why is there a lawsuit to begin with?
[00:08:58.04] [Jess] I mean, you can always just go back and listen to the first episode of Rooked if you can't remember. Honestly, we'd love the download numbers. But in case you don't have an extra hour to spare, here comes the speed round.
[00:09:11.19] [Airhorn blares]
[00:09:14.45] [Both laugh]
[00:09:15.83] [Mellow electronic music plays]
[00:09:16.75] [Ryan] This whole thing goes back to the inciting incident at the Sinquefield Cup on September 4th, 2022, when Hans Niemann unexpectedly beats Magnus Carlsen. Magnus goes to the event organizers with the accusation that Hans is cheating and requests that he be disqualified-- a request that is denied given the lack of proof to support the claim, which causes Magnus to withdraw from the rest of the tournament. Though Magnus' withdrawal does lead to an increase in anti-cheat measures that are kept in place for the remainder of the tournament.
[00:09:49.60] [Jess] But none of this stops Magnus from taking to Twitter with an ominous message. This sparks a media frenzy of speculation about whether or not Hans cheated and if that was, in fact what Magnus was insinuating.
[00:10:03.70] [Ryan] More parties than wade into the controversy-- specifically, chess.com and chess player and streamer Hikaru Nakamura. Hikaru makes a number of comments in livestreams hinting at past cheating accusations that had been levelled at Hans and says that it's obvious that this is why Magnus has withdrawn. Then, at a post-game interview later in the tournament, Hans reveals that chess.com banned his account immediately following Magnus' withdrawal. He also makes a public apology and admits to past instances of cheating online when he was younger, but says that he had not and would not ever cheat over the board.
[00:10:43.52] [Jess] Fast forward to September 19th, 2022, and to another tournament, the Julius Baer Cup. Hans and Magnus face off again, and this time Magnus resigns after one move, publicly doubling down on the implication that he believes Hans is a cheater by refusing to play against him.
[00:11:01.92] [Ryan] On September 26th, Magnus finally releases a statement with some answers. He tweets about his decision to leave the Sinquefield Cup and his forfeit against Hans during the Julius Baer Cup, calling for better security at high-level events. He comments on Hans' admission of past cheating, stating that he doesn't believe Hans is being honest about the extent of his cheating. He ends by saying there's more he wishes to discuss but cannot because of legal reasons, and that he refuses to play Hans going forward.
[00:11:35.45] [Jess] On October 4th, chess.com releases the Hans Niemann Report, which claims that Hans has likely cheated in over 100 online games, including livestreamed games and games for money.
[00:11:47.58] [Ryan] On October 20th, Hans announces via Twitter that he's suing Magnus Carlsen, the Play Magnus Group, chess.com, chess.com's Chief Chess Operator Danny Rensch, and Hikaru Nakamura.
[00:11:59.99] [Jess] For the damages caused, he demands, quote, "a money judgement against defendants in an amount to be determined at trial, but not less than $100 million, including compensatory, consequential, and punitive damages," end quote. The wording of the suit makes it hard to tell whether it's meant to be per defendant or per charge. But either way, somewhere between $100 million and $400 million-- basically half a billion dollars-- is just a lot of money.
[00:12:32.60] [Music fades]
[00:12:34.00] [Melodic saxophone music plays]
[00:12:35.41] [Ryan] To sum up the lawsuit, Hans is claiming that Magnus' decision to out him as a cheater is worth up to a half a billion dollars in lost revenue.
[00:12:45.41] [Jess] Okay, so that's basically the scandal as it was laid out in the lawsuit. Maybe a little bit longer than we thought it would be. But before we get into some of the specifics of, like, tort law and a bunch of other fairly dense legal concepts, we need to take another step back, because before we started looking into this, we didn't know anything about the legal system.
[00:13:07.42] [Ryan] Again, other than what we learned in high school.
[00:13:10.27] [Jess] And from Law & Order: SVU.
[00:13:12.50] [Law & Order "Dun dun" sound effect plays]
[00:13:13.75] [Ryan] And that one time got charged with littering for peeing in a trash can, which in my defence should not have been littering because it was into a trash can?
[00:13:23.66] [Jess] I mean, I think the cop cut you a break because public indecency that close to a playground would have gotten you on a list. Not that you were thinking about that, because I'm assuming you had been drinking, which is what led to the peeing in a trash can.
[00:13:37.56] [Ryan] Well, it was a very small town and all the bathrooms were full.
[00:13:41.37] [Jess] Mmm-hmm.
[00:13:41.98] [Fred Armisen as Raul] This kind of behaviour is never tolerated in Baragua. You shout like that, they put you in jail, right away. No trial, no nothing. Journalists, we have a special jail for journalists. You're stealing? Right to jail. You're playing music too loud? Right to jail, right away. You're driving too fast? Jail. Slow? Jail. You're charging too high prices for sweaters, glasses? You right to jail. You undercook fish? Believe it or not, jail. You overcook chicken? Also jail. Undercook, overcook. You make an appointment with the dentist and you don't show up? Believe it or not, jail, right away. We have the best patience in the world because of jail.
[00:14:20.19] [Melodic saxophone music plays]
[00:14:20.66] [Jess] Well, anyway, we're clearly not experts, but what we do know is that regardless of whatever charges any lawsuit contains, once it gets into a courtroom, the first thing they have to figure out in order to move forward is whether or not the allegations are able to be proved as true. And to prove something true, you need evidence. Hans' lawsuit is pretty comprehensive. It's 44 pages long, and it talks in very expressive language about various events and actions by the parties that Hans says support his claims. But what we as non-lawyers couldn't figure out is whether any of the stuff that Hans lists-- from accusations of blacklisting, to leaking emails to news sites, to conspiring against him through a corporate merger-- could actually be counted as real evidence.
[00:15:10.34] [Ryan] Lucky for us, Nicole isn't just a lawyer. She's a professor who teaches baby lawyers how to be lawyers. And even though she's usually talking to law students who have, you know, at least taken the LSATs and know enough about law to get into law school, she made sure to use small words we could understand in order to give us some background on what makes law, law.
[00:15:33.74] [Jess] Should the title of this episode be Law Law Land?
[00:15:37.67] [Emma Stone as Mia Dolan] I'm always going to love you.
[00:15:41.25] [Ryan Gosling as Sebastian Wilder] I'm always going to love you, too.
[00:15:44.68] [Ryan] Love me some R Gos. Anyway, here's Nicole explaining the first thing she teaches about evidence when it comes to law.
[00:15:51.49] [Nicole O'Byrne] The first lecture we always talk about, well, what's relevant? I'll take you back to the 19th century here, where there's a theorist named Jeremy Bentham, who's very infamous because when he died, he said he wanted his body stuffed and put in a glass case and then brought out to different faculty meetings at University College London.
[00:16:10.37] He says all relevant evidence is admissible. Okay, so I teach that to my students as, what would Jeremy Bentham do? WWJBD? All right. What would he do in this circumstance? So if it's relevant to the material issue, then that should be admitted, right? Now, we've got an American theorist that comes along and says, okay, well, thanks, Jeremy, but that's pretty big. Like, every trial would last forever if all relevant things were put in the mix.
[00:16:39.42] And now, I love your podcast, but you're seeing how many different avenues you can go down, right? Little pieces of evidence spin off into another story. You have to get yet another expert in. You're going down this winding, circuitous route when really we're just focused on, did Hans Niemann cheat at the tournament at Sinquefield?
[00:17:00.60] So there's an American theorist named John Henry Wigmore. He said, fine, but we've got to hive off some of this evidence, because we know through experience that a lot of it is not very reliable. So Wigmore takes off the table character evidence-- and you've spent a lot of time talking about character on this podcast-- takes off opinion evidence, because who cares what people's opinions are? Like, are we actually dealing with fact? And there's very few facts in this case, but as we've heard on some of your previous episodes, people certainly have an opinion based on Magnus' character or how Hans acted on a certain YouTube video, or post-game interview, or whatever. And then also hearsay, which is an out-of-court statement offered for the truth of its contents. That's notoriously unreliable because people can say something to somebody else, and it gets distorted, kind of like that telephone game that we all play when we're kids. And I heard from somebody, and they heard from somebody, and then all of a sudden somebody's doing something that's totally absurd, right?
[00:18:02.41] So Wigmore comes along and says, these types of evidence, opinion evidence, character evidence, and hearsay, you better just default take them off the table because they're so prejudicial. Which is another thing that you've shown on this podcast. As soon as you start saying, well, Hans admitted that he cheated.
[00:18:20.01] [Gasps]
[00:18:20.70] And now everybody says, oh, well, maybe he cheated in this other forum. They might as well be two different games, right? Like, this is the difference between American football and basketball or something, right? Like, these are two different games with two different rules, two different regulatory authorities and whatnot. So that should stay kind of off the table. But you wouldn't have much of a podcast if the evidence prof came in and said, we're going to take all the character, hearsay, and opinion off the table.
[00:18:49.34] But you can see why when you go to court that we do that. Otherwise, everything would spin out in all these very, very thin strands, and generally smoke, or things that could really distort the fact finder's perception of what's the truth in this scenario. So what we do is we protect the jury, generally, from hearsay, from opinion evidence, from character evidence, because we tend to, as human beings, be overly influenced by, oh, somebody told me that he was a good guy, or he's not the type of guy to cheat, right? Or, oh, he cheated online already. Well, maybe he's more likely to have done it in this instance. Or the author of his biography has an opinion about what this guy said,right? Like, as soon as you get to any of the things that you've basically been exploring in your podcast, you have to start to think, well, wait a second. Like, is that going to really take somebody down a road of irrelevant, prejudicial, unreliable information? Maybe, so we put up roadblocks to that information going in if there's a trial.
[00:19:55.76] Now that being said, and this drives my students absolutely bananas, there's an exception to all those rules. You can have opinion evidence in if you find a properly qualified expert, which arguably on your podcast, the guy who wrote the biography, he had very relevant, pertinent things to say, because he's done the research and, right, he knows what he's talking about, has these credentials, and that kind of thing, okay? Character-- as soon as somebody says, I'm not the type of person to do X, Y, Z, which, arguably, both of your characters in this saga have already said, "I'm not the type of person to cheat" or "I'm not the type of person to cast aspersions on someone" or "I love the game of chess" and that kind of thing, oh, we're kind of in this murky world, as well. When you open the door to saying, I'm not the type of person to do X, Y, Z, the other side can come along and say, well, yeah, actually, maybe you are. Okay? And you can offer a counter narrative to that.
[00:20:53.81] And then hearsay, everything's hearsay, but is it necessary to determining the truth, like what actually happened at Sinquefield? Or is the information really reliable? And if it's really reliable, there's a way you can get around that, as well. So this is all to say that all the things you've been exploring in this podcast are actually relevant. It's just some of them are so prejudicial. And you can see from the online comments, and Twitter, and people's gut reaction to some of this story, like, without knowing the facts. And you've spent at least a couple episodes, like, meticulously going through, like, what you actually know, what you don't know. But a lot of people you've talked to know very little about this and still have an opinion because they thought, you know, the Grandmaster champion of the world of chess or whatever, his reputation was so great that how could he ever make a false accusation, or that Hans, because he cheated online, he must be a cheater and thus has cheated at this OTB game or whatever, right? So, again, it just is something to say that you must know as much as possible before you start making those kind of judgements, which is why trials can get so long and convoluted.
[00:22:09.86] [Melodic saxophone music plays]
[00:22:10.81] [Jess] Thanks to Nicole, you now understand how modern law and evidence in court works, as well as how it could pertain to this specific lawsuit. Thanks, Nicole.
[00:22:21.89] [Ryan] There's five main allegations that Hans makes in his lawsuit, so we need to explain what these allegations actually mean, because it's going to be important in understanding the outcome of the case and what it means for the future of chess.
[00:22:35.26] [Music ends abruptly]
[00:22:35.60] [Jess] Let's start with allegation number 1--
[00:22:37.52] [Knock]
[00:22:37.77] --and 2--
[00:22:38.64] [Knock] --slander and libel.
[00:22:40.52] [Melodic saxophone music plays]
[00:22:40.93] [Ryan] What exactly is slander? According to the Merriam-Webster Dictionary, slander is, quote, "The utterance of false charges or misrepresentations which defame and damage another's reputation," end quote. So slander is saying bad, untrue things about a person out loud.
[00:22:59.56] [Jess] Libel is almost the same as slander, so we're not going to make you listen to another dictionary definition. But the difference between libel and slander is that libel is written instead of being spoken out loud. So what exactly is the slander and libel in question for this lawsuit? What is being said that Hans thinks is untrue?
[00:23:19.86] [Music fades]
[00:23:20.25] [Ryan] Drawing from the lawsuit, Hans believes that the defendants, quote, "published and repeatedly republished false and defamatory oral statements accusing Niemann of cheating during his match against Carlsen and in other unidentified competitive chess games, and lying about cheating in the past," end quote.
[00:23:38.34] [Melodic saxophone music plays]
[00:23:38.71] [Jess] Because he's saying these unproven allegations of cheating are libel and slander, Hans is also therefore claiming that these lies have caused some kind of damage to his reputation. In the lawsuit, Hans and his lawyers point specifically to Magnus repeatedly calling out Hans for cheating in various written and oral statements, including on Twitter, chess.com's Hans Niemann Report that said Hans cheated more than he'd admitted, Danny Rensch leaking private emails to media outlets about Hans' alleged cheating, and Hikaru dragging Hans' name through the mud during live broadcasts.
[00:24:14.51] [Ryan] All of these things could potentially be grounds for defamation if the claims about Hans cheating turn out to not have proof to back them up. But because this is a real lawsuit, it's also Hans' job, along with his lawyers, to prove not only that it is baseless and untrue to call him a cheater, but also to lay out exactly how this has harmed his reputation. Specifically, Hans claims the following as the exact damage to his career in the lawsuit. Quote, "1, losing his appearance fees for the chess.com Global Championship, the Tata Steel Chess Tournament and future chess tournaments. 2, losing access to potential tournament prize funds at the chess.com Global Championship, the Tata Steel Chess Tournament, and future chess tournaments. 3, losing access to the vast majority of opportunities to increase his FIDE rating by playing matches against other top-rated players. 4, having his reputation in the competitive chess industry and the public destroyed. 5, being prevented from obtaining lucrative endorsements, sponsorships, business, and marketing opportunities. And 6, being forced to incur significant costs, expenses, and fees, including but not limited to attorneys' fees, to try to remedy or mitigate the damage caused by defendants' misconduct," end quote.
[00:25:35.54] [Melodic saxophone music plays]
[00:25:35.84] [Jess] There is a lot to unpack in there, and it's hard to tell how much of it is valid, because in the suit, it all seems weirdly reasonable for the normally overdramatic Hans. But, again, we're not lawyers, so here's what real lawyer David Franklin had to say about the slander and libel accusations in the lawsuit, specifically Magnus' first official statement, in which Magnus does sort of accuse Hans of cheating.
[00:26:02.82] [Music fades]
[00:26:03.79] [David Franklin] Well, the legal question about Magnus' statements is whether they constitute actionable defamation under American law. And there I think Hans faces an uphill battle, because if the court rules that Hans is a so-called public figure-- and I think it probably will-- then Hans can only get damages in his defamation suit if he can prove that Magnus knew that his statements were false, or that Magnus was reckless about the possibility that they were false. And that's designed to be incredibly hard to do, because we have a First Amendment protection for free speech in this country. And so, I think that will be a hard hill for Hans to climb.
[00:26:50.55] I think that Magnus pretty clearly implied that Hans was cheating. I don't think he had to come out and say it in order for it to be defamation. So it's not necessarily going to be ruled a mere opinion. I think a court could take the totality of what Magnus said, and embedded in there is a statement of fact, which is Hans is a cheater. The problem is proving that that's false.
[00:27:17.31] [Melodic saxophone music plays]
[00:27:17.99] [Ryan] Here's an important question to consider in what David just said. Is Hans a public figure?
[00:27:23.90] [Jess] Based on the way Hans talks about his own fame and skill in the lawsuit, he seems to think that he is. But the problem with being a public figure is that it means that Hans and his lawyers then have to prove that the defendants they're naming acted with, quote, "actual malice."
[00:27:39.91] [Ryan] If Hans was a private figure-- someone completely out of the spotlight-- all he'd have to prove is that the allegations were negligent, that they weren't properly supported by evidence. But, again, he's not a private figure. That means they have to prove that Magnus knew the statement about Hans cheating was false.
[00:27:57.76] [Jess] This is a hard hill, like David said, because it's just as hard to prove that you didn't cheat at chess as it is to prove that you did cheat. And it seems like Magnus really thought Hans cheated. So whether or not he did cheat is moot if Hans can't prove it either way. This whole first allegation, which to us seemed the most reasonable, is just really difficult for Hans and his lawyers to prove legally.
[00:28:24.45] [Ryan] Here's Nicole's take on Hans' claims of slander and libel.
[00:28:29.15] [Music fades]
[00:28:29.62] [Nicole O'Byrne] When you've got somebody saying, "You've hurt my reputation. Look at the damages that have flowed from saying I'm a cheater." He gets banned. No one wants to play. There's millions of dollars at stake in earning loss and whatnot. I hate to say it, but basically every defamation case that I've seen, which is not that many, to be honest-- this isn't particularly my area of expertise-- but they're all kind of the same thing. You've hurt my reputation, and what's going to put me back in the place, as if that had not happened? And it's usually money, right? But also, I'm going to take you to court because you're wrong. You've lied. You've hurt my reputation.
[00:29:08.63] Now, there is a defence to defamation, and that is telling the truth, right?
[00:29:13.73] [Chuckles]
[00:29:14.06] If you do go to trial in a defamation suit, someone can say, well, actually you were cheating. Now here, boy, it's through the materials and stuff that I've been able to look at here, trying to prove cheating in chess is a very difficult thing with-- and you've had mathematicians and other chess experts on this podcast that can do a way better job than I can-- but when you're just talking about stats and probabilities and we're not sure, it gets very, very, very difficult to prove cheating.
[00:29:44.25] Now, the only thing Hans had going against him was his own admission that he had cheated online. And he's trying to say, well, I was a kid and I didn't understand, and, you know, I was just trying to maybe take a shortcut here to improve my rank-- that's not an excuse. But we're back to the original inquiry as to, is it relevant? Is it relevant that he cheated online?
[00:30:08.19] [Ryan] We'll revisit this, but for now, let's move on to Hans' next allegation to give some more context. Number 3--
[00:30:15.03] [Knock]
[00:30:15.36] --antitrust violations under the Sherman Act.
[00:30:17.94] [Melodic saxophone music plays]
[00:30:18.33] The Sherman Antitrust Act is a landmark US law from 1890 that banned businesses from forming monopolies. It basically means that corporations can't work together to make an industry less competitive. For our purposes, it means that Hans is accusing chess.com and Play Magnus of working together to tank his career and preventing him from participating in the global chess market.
[00:30:42.97] [Jess] And while Hans' position as an individual victim in this is hard to prove, the merger between chess.com and Play Magnus that kicked off in August 2022 and was completed in December of that same year, did end up involving an $83 million acquisition. So maybe Hans' accusation that this significantly increased Magnus influence in the chess world and allegedly solidified chess.com's monopoly over the competitive online chess market isn't totally unwarranted.
[00:31:16.81] [Ryan] According to the lawsuit, Hans claims that the defendants, quote, "acted in concert to improperly refuse to deal with Niemann, including chess.com banning Niemann from its platform and sponsored events, Carlsen refusing to play Niemann in any tournaments or events, and defendants acting collectively to cause organizers of professional chess tournaments to blacklist Niemann from participating in their events," end quote. Here's David to explain what exactly antitrust laws are and how they don't really apply in this case.
[00:31:47.39] [David Franklin] There's an antitrust claim in the case that I think is pretty close to frivolous. The idea here is that the defendants banded together in a kind of group boycott in violation of the antitrust laws. But I think chess.com's lawyers did a really good job of explaining in their motion to dismiss why Hans should lose on that claim. Basically, chess.com and Hans are not competitors to one another in a marketplace.
[00:32:18.60] There's also no plausible allegation in the complaint of any agreement between the various defendants. There's actually a very famous Supreme Court case that goes to this direct issue, which is that in federal court, you have to do more than just vaguely suggest that various defendants agreed with one another to fence you out of a market. You actually have to allege with plausibility that they did so. I don't see that in Hans' complaint. And even if there were a plausible allegation, chess.com does a good job of explaining why it's not an agreement that harms competition in the chess world, which is what the antitrust laws care about. They actually say this was an agreement, if it was one at all, that helps competition, because it's a good thing to get cheaters out of the game. Maybe it harms Hans personally, but that's not an antitrust violation. So I think that claim will get weeded out.
[00:33:17.76] [Melodic saxophone music plays]
[00:33:18.58] [Jess] Antitrust cases are also notoriously expensive and complicated to figure out. For that exact reason, there's a rigorous weeding process in most jurisdictions, including the one this lawsuit was filed in, to rule out any cases that aren't actually antitrust issues.
[00:33:36.20] [Ryan] It's kind of the same thing as the slander and libel. It's unlikely that this will fly. And even if it does, it'll be really hard for Hans' lawyers to prove.
[00:33:46.37] [Jess] So that's the antitrust section of the lawsuit. The next claim up is number four--
[00:33:52.15] [Knock]
[00:33:52.49] --tortious influence with contract and business expectancies.
[00:33:56.39] [Ryan] What are you saying?
[00:33:57.12] [Jess] Tortious.
[00:33:57.79] [Ryan] Torty-us?
[00:33:58.97] [Jess] Tortious.
[00:33:59.88] [Ryan] Tortoise?
[00:34:01.28] [Jess] Tortious.
[00:34:01.88] [Ryan] Tor-chi-us? Tor-cheese? Door cheese? That's-- honestly just seems like a made-up word.
[00:34:07.41] [Jess] I mean, you're, like, actively not saying the right word.
[00:34:10.66] [Both laugh]
[00:34:10.96] It's, like, absolutely a real word. None of what you said is the right word. It's tortious.
[00:34:17.17] [Ryan] Tortious.
[00:34:18.04] [Jess] There you go.
[00:34:18.86] [Jess] As in tort. It just means wrongful.
[00:34:22.15] [Ryan, whispering] Tortious.
[00:34:23.08] [Ryan, with bad English accent] May I have a tort, please? A Pop-Tart?
[00:34:26.39] [Ryan, regular voice] That's a British person ordering a Pop-Tart.
[00:34:29.06] [Jess] Where would somebody be ordering a Pop-Tart?
[00:34:31.66] [Both laugh]
[00:34:32.27] You know what I mean? Like, Pop-Tarts, you eat them hunched over the sink like a dirty little raccoon. You're not, like, ordering it in a restaurant.
[00:34:39.05] [Man, singing] Kellogg's Pop-Tarts. Eat 'em in the morning. Eat 'em in the evening. Kellogg's Pop-Tarts.
[00:34:45.55] [Melodic saxophone music plays]
[00:34:45.97] [Jess] Okay, anyway, this next cause of action, or claim, is that Hans had contracts and/or business expectations with chess.com, but he was unjustly dropped from a number of tournaments following chess.com's Hans Niemann Report and site banning. He says that this violated the existing agreements.
[00:35:05.99] [Jess] Hans claims the defendants effectively coerced those involved in the tournaments to, quote, "terminate their relationship with Niemann and blacklist him from future competitive chess matches," end quote. Hans claims that because of the defendants' actions, he lost appearance fees, future involvement in chess tourneys, potential endorsements, and that these losses are worth a minimum of $100 million.
[00:35:29.58] [Jess] Now, you might be thinking to yourself, hey, isn't that really similar to what we just talked about in the Sherman Act antitrust allegation? Well, that's because it kind of is. Hans and his lawyers are throwing everything and the kitchen sink into this lawsuit because it's a difficult case to prove for a number of the reasons that we've already discussed.
[00:35:49.56] [Ryan] The nuance for this specific allegation is that the illegal cooperation of Magnus and chess.com led to contracts being interfered with. But it's still focusing on the unfairness of these parties working together against Hans. And while it's easy to get caught up in all the legalese and allegations, at the core, the thing you have to keep in mind is this tidbit from David.
[00:36:11.75] [David Franklin] The thing that interested me about the lawsuit, other than the language of the complaint that was so colourful, was that the lawsuit is sort of an interesting melange of two overlapping legal theories. There's the part where Hans says, these defendants defamed me, right, by saying damaging things about me that weren't true. And then there's the part that says, they also conspired together to shut me out of lucrative chess competitions. Now, those theories are overlapping. They go hand in hand, to some degree. Both of them are hard to prove, and I don't think the complaint does an especially good job of linking those two things. But I thought the fact that he was trying to tell those two stories at the same time was the most interesting thing about the complaint.
[00:37:01.30] [Jess] Which brings us to allegation number five--
[00:37:03.91] [Knock]
[00:37:04.61] --civil conspiracy.
[00:37:06.50] [Melodic saxophone music plays]
[00:37:06.71] [Ryan] Which, again, kind of seems like both the antitrust and tort allegations that we've already discussed. I'm sure there's enough differences in the claims that Hans' lawyers thought trying to seek damages through all three of these avenues made sense. But outside of the legal minutia, the whole suit is basically just claiming that these parties all acted together to defame Hans. Here's how it's worded in the lawsuit.
[00:37:31.80] Quote, "Defendants schemed and agreed amongst themselves to repeatedly defame Niemann to members of the chess community and the public at large in order to improperly cause the chess community to refuse to deal with Niemann, including by unlawfully banning Niemann from chess.com's platform and sponsored events, and blacklisting Niemann from participating in professional chess tournaments. Defendants took multiple overt acts in furtherance of their scheme and agreement, including by making repeated false and defamatory statements accusing Niemann of having cheated during his match against Carlsen on September 4th, 2022, unlawfully banning Niemann from chess.com's platform and sponsored events, and interfering with his professional relationships," end quote.
[00:38:16.39] [Sinister synth music plays]
[00:38:16.77] [Jess] So that's essentially what Hans and his lawyers claim in the lawsuit. And thanks to David and Nicole, we laypeople can understand that there's these two stories Hans is telling-- about being defamed and having his career tanked through some kind of unjust monopoly. I think for our purposes, the most important thing is this comment from David.
[00:38:38.45] [David Franklin, with reverb] Both of them are hard to prove.
[00:38:40.58] [Ryan] So those are the most important parts of the lawsuit explained. Now, let's go back to the timeline.
[00:38:46.65] [Mellow wlectronic music plays]
[00:38:47.48] [Ryan] After this lawsuit is announced on October 20th, 2022, Hans kind of disappears from public view. There's various motions filed related to the suit over the next few months, but we don't see Hans in many tournaments.
[00:39:00.80] [Jess] And whether the arguments Hans made in his lawsuit are true and justified or not, his prediction that he's being shut out of elite tournaments because of the cheating allegations does seem to come true. Rather than having to deal with Magnus causing further ruckus by refusing to play against Hans or dropping out of tournaments entirely, elite chess organizers just don't invite Hans to tournaments if Magnus is going to be there.
[00:39:26.97] [Ryan] Hans' FIDE record immediately following the controversy and the announcement of the lawsuit-- so from the end of 2022 to the start of 2023-- shows that he doesn't play in any of the elite tournaments that you would expect given his meteoric rise in rating. Instead, he only plays a handful of lower-level open tournaments that don't require an invitation. And in most of these tournaments, he ends up being the top-seeded player, and loses a bunch of rating points as a result. In fact, in February to April of 2023, Hans doesn't participate in any tournaments, maybe because he doesn't want to lose any more points. Without invitations to high-level tournaments, his rating and career do, in fact, suffer, just as he said it would in the lawsuit.
[00:40:16.57] [Jess] Going back to those motions that are being filed in the few months that Hans is kind of just watching his career combust, the responses from the defendants that are filed during this time all say pretty much the same thing. They argue that Hans doesn't really have any substantial evidence to support his allegations, and each defendant seeks dismissal based on anti-SLAPP laws and jurisdictional challenges. I don't know what half those words mean, but David does.
[00:40:45.52] [David Franklin] I thought the most interesting motion to dismiss was the one that was filed by Magnus' lawyers. And it was the most interesting to me because he really leans hard on the idea that Hans is a Connecticut citizen and therefore should be subject to a law in Connecticut called an anti-SLAPP law, which SLAPP stands for Strategic Litigation Against Public Participation. So without going into too much detail, this is a Connecticut law that makes it even harder for plaintiffs to win on defamation claims than it already is in every other state. So the plaintiff has to basically prove that their case is meritorious at the outset or it gets dismissed. That's what the Connecticut law says.
[00:41:35.08] And this is a fascinating issue to me for a couple of reasons, if I can geek out for a minute. First of all, it's not obvious that Connecticut intended for its law to make it harder for a Connecticut plaintiff, like Hans, to recover damages for statements that were made somewhere else. Maybe Connecticut passed this law in order to protect Connecticut defendants. But Hans is not a Connecticut defendant. He's a Connecticut plaintiff. So Magnus' lawyers try to get around that by saying that Hans' injury occurred in Connecticut, or his alleged injury. And since the injury occurred in Connecticut, Connecticut's law was meant to apply to it. So that's a really interesting question, because if Connecticut law applies here, as opposed to Missouri law, which is what Hans is claiming, then his case will be even harder to win.
[00:42:27.90] And second, to get even geekier, there's a question of whether this Connecticut law is substantive or procedural. So federal courts-- and, again, we have a federal court here in Missouri-- they're supposed to apply federal law on procedural issues. So just to take a simple example, if there's a Federal Rule on how many pages long your brief is allowed to be, right, that Federal Rule applies in a federal court case, because it's procedural. But federal courts are supposed to apply state law on substantive issues. Again, I know this is geeky, but it's interesting, I hope. So, Hans files this lawsuit in federal court, and he wants the Missouri law of defamation to apply, because although it's hard to win defamation cases under Missouri law, it's easier than under Connecticut law. Magnus then files a motion to dismiss and says Connecticut's anti-SLAPP law may look procedural, because it contains various hurdles that the plaintiff has to overcome, but we should view those hurdles as substantive, which means the federal court, even though it's in Missouri, should end up applying Connecticut state law. So that was super geeky, but that was the most interesting thing that I saw in the motions to dismiss.
[00:43:53.01] It is a little bit strange, but-- so one of the easiest ways to get a case dismissed without getting into the merits of the case is to focus on jurisdiction. Because the way the legal process works is, the allegations of the complaint are assumed to be true for purposes of a motion to dismiss. So it's harder for, say, Magnus to say this case should be dismissed because Hans really is a cheater and Magnus was telling the truth about that. That comes later, in later motions that are called summary judgement motions. But for purposes of a motion to dismiss, you'll often find the parties focusing on geography because there's this notion, right or wrong, in American law, that it's fundamentally unfair to force a defendant to defend a lawsuit in some state that they have no connection with, that they didn't act in, for purposes of the underlying claims in the suit.
[00:44:59.69] [Sinister synth music plays]
[00:45:00.07] [Ryan] On June 27th, 2023, these requests for dismissal are officially granted, and all complaints related to the case are dismissed. So apparently that means the lawsuit is finished. Here's Nicole.
[00:45:14.47] [Nicole O'Byrne] Defamation comes down to, you hurt my reputation. You should be responsible for the damages that flow from that hurt. And the other side saying, yeah, but you were a cheater, right, the truth kind of defence, or saying-- and what we saw in this case was-- this is a vexatious lawsuit. We're going to hit you with an anti-SLAPP kind of counterargument that says don't bring any lawsuits up just to get attention. So what they're saying here is that Hans, by bringing this lawsuit, was just trying to make more money, or do something that's not actually about the defamation or the hurt to the reputation.
[00:45:53.63] So, again, like most court cases, you see, it's a zero-sum game of, you did X. No, I didn't. And then here we go. And in this case, they settled. So there are allegations on both sides here. But at the end of the day, especially with a non-disclosure agreement and a settlement in place, none of this matters anymore. It's kind of performance art, if you will.
[00:46:19.80] [Melodic saxophone music plays]
[00:46:20.48] [Jess] Nicole brings up a very interesting point here regarding an NDA, but we're going to come back to that, because first, we need to talk about this question of whether the lawsuit was vexatious. Basically, the counterargument brought against Hans' lawsuit was that he launched it to frustrate the accused parties rather than to try and win. This is where the anti-SLAPP argument comes in. That's SLAPP with two "P"s, by the way.
[00:46:47.51] [Ryan] PIPI if you will. Just a little in-joke for the long time listeners there.
[00:46:52.08] [Daniel Naroditsky laughing]
[00:46:52.42] [Magnus Carlsen] Let me tell you one thing. I was a GM, I was a World Champion when you were doing PIPI in your Pampers.
[00:47:00.59] [Jess] If you don't get that joke, maybe you need to subscribe to our Patreon and gain access to some really cool bonus content.
[00:47:08.36] [Ryan] Mmmm. Snuck that in there.
[00:47:10.40] [Jess] Snuck that in there.
[00:47:12.96] [Comical slide whistle plays]
[00:47:15.37] [Cheerful music plays]
[00:47:15.86] [Ryan] Did you know that Rooked: The Cheaters' Gambit is an indie podcast?
[00:47:20.01] [Jess] Indie as in independent. We don't receive any sponsorship support. Ryan and I make Rooked in our spare time for free.
[00:47:27.42] [Ryan] And don't get us wrong. We love getting to make this podcast exactly the way we want to. But we've been thinking that maybe with some support, we could make this show even better.
[00:47:37.19] [Tim Robinson] I got to figure out how to make money on this thing. It's simply too good.
[00:47:41.34] [Jess] So like many creators, we've joined Patreon.
[00:47:44.63] [Ryan] Can I just ask, what is Patreon?
[00:47:47.33] [Jess] Great question, Ryan. Patreon is a way for fans to join and engage with their favourite creators' community. Basically, it's a platform that allows you to support creators financially. Currently, we have two tiers open: the Pawn level, if you want to support us for 5 Canadian dollars a month-- cheaper than mailing us an envelope of loonies and toonies-- and the King level for $20 per month. If you choose to support us at the King tier, we'll also mention you by name in the episode credits. And if you support us at any level on Patreon, you'll also be able to access bonus content.
[00:48:20.91] [Ryan] Patreon looks like they Stole their logo directly from Target.
[00:48:24.47] [Jess] You are the only person I've ever had to describe Patreon to, so I don't really trust your judgement here, honestly. But that's a good point. If you want to support us but monthly donations don't fit your budget, you can also buy us a coffee instead at buymeacoffee.com/rooked. Or we also really appreciate ratings, reviews, and shares, too, and those are free.
[00:48:46.38] [Ryan] We love making this podcast, and our motivation is listeners like you, so we really appreciate your support at any level.
[00:48:54.39] [Jess] Go to patreon.com/rooked to support the podcast. That's patreon.com/rooked. Thanks for listening.
[00:49:03.98] [Music fades]
[00:49:04.90] [Comical slide whistle plays]
[00:49:06.75] [Melodic saxophone music plays]
[00:49:07.21] [Jess] Anti-SLAPP lawsuits are defined as seeking, quote, "not so much a legal as a political victory," end quote, by silencing critics and suppressing debate on matters of public interest. So, like Nicole said, the opposing lawyers used this argument to say that Hans' case was invalid because it was seeking attention over real justice.
[00:49:27.19] [Ryan] Hans submitted two separate proposed amendment complaints to prove the antitrust component of the case, each of which were found to be deficient. He requested leave to prepare a third proposed amended complaint, but he hadn't submitted it by the required deadline ahead of the June 27th ruling. This is what the lawsuit stated. Quote, "Further leave to amend in this respect would be futile, and the court will thus dismiss the antitrust claims with prejudice," end quote.
[00:49:56.20] [Jess] Because claims 3 and 4 of the amended suit-- the ones pertaining to the antitrust violations-- were dismissed with prejudice, Hans can't refile the same claim in the same court.
[00:50:09.27] [Gloomy music plays]
[00:50:09.74] Hans couldn't prove how chess.com and Play Magnus conspiring together harmed general market competition rather than just his personal interests. But the rest of the claims in the case were dismissed without prejudice, meaning that Hans is welcome to bring them back into court, but this time without the antitrust claims attached. And as far as we know from court records, that hasn't happened.
[00:50:34.37] [Ryan] So that's the end, right? You'd think so. But actually, this is just the end of the lawsuit. It's not the end of the story.
[00:50:49.78] [Music fades]
[00:50:52.16] [Sombre electronic music plays]
[00:50:52.65] [Jess] It turns out that in trying to figure out how to tell the legal parts of this story as two non-lawyers, we needed help in figuring out more than just what the actual words in the lawsuit meant, because a lot of what happens in dispute settlement doesn't happen in the courtroom. It happens in the outside world, where there's no paper trail. So even though we know with 100% certainty how the lawsuit officially ended, we can only guess at what happened after that.
[00:51:21.46] [Ryan] We asked Nicole whether the lawsuit, as we saw it, was regular or not, and what she thought the part that didn't get said out loud for the court record could entail. And because she is an excellent professor, she ended up just giving us another crash course on how exactly law typically works-- both inside and outside a courtroom.
[00:51:43.26] [Nicole O'Byrne] It looked pretty normal. I'll tell you why. Trials are a zero-sum game. Okay? So you have one side that says the Earth is flat. The other side says the Earth is round. They're not going to agree at all. We're going to a neutral third-party objective decision maker, a judge. That's why we're taking it into a different forum. Right? Where someone has the authority to sort out from these extreme narratives on each side.
[00:52:11.92] So what happens in most trials is that the judge makes a decision that kind of ticks off both sides, right, because the judge very rarely-- the factfinder very rarely-- says, oh, one side is 100% being truthful. Once you start getting the evidence, and the witnesses come in, and they're sworn under oath, and they're subject to cross-examination-- and we've all seen enough movies and TV shows and whatnot where that all happens-- that the story's usually a lot more complicated than what gets filed at the courthouse.
[00:52:44.00] So what we've been able to read here is one side's story, where Hans is a victim and, you know, he's been defamed, and the subject of tortious acts, and all those kinds of stuff. And the other side's saying, well, no, this is a vexatious lawsuit. He's just looking for publicity. We're going to bring in anti-SLAPP to say that this lawsuit has no merit and it's just being used to destroy reputation of some other chess player and whatnot. So overdramatic is kind of what it is. That being said, you have to be able to then bring in evidence to support the assertions that you make in the statement of claim. And we'll never know that because these statements, they went into negotiations-- which, actually, like most issues, do not get litigated. Most issues, this is the stage where things get filed at the courthouse, and then the judge has a pretrial management conference, or the parties go into negotiations or whatnot, and there's some back and forth-- pretrial examination of discovery, where you can see what evidence the other side actually has, and there's discussions and whatnot.
[00:53:49.52] Most things settle. I don't know what the number is, maybe 90%. But what's different in this case is that you have a non-disclosure agreement. So we don't know the terms of the settlement here. We don't know how much money went back and forth. It could be $0, it could be $100 million, and we'll never know.
[00:54:06.58] [Sombre electronic music plays]
[00:54:06.97] [Jess] Just to be clear, we're officially outside the world of fact now and can only speculate about what's happened in the year following the resolution of the lawsuit. But Nicole seems pretty confident that there's a nondisclosure agreement, also known as an NDA, at play here. So what does she see with her legal eyes that were missing? How can she be so sure that there's been some kind of settlement that's barred from public knowledge by an NDA?
[00:54:37.46] [Music fades]
[00:54:38.34] [Nicole O'Byrne] Often, one of the clauses in an NDA is that you can't even tell the world if there's an NDA or not. So listening to your podcast, where people are like, oh, well, things have just been resolved, that's a way to avoid saying there's an NDA with a clause in it that says you can't talk about the NDA. So it's secret on top of secret. And we will not know. There's some external evidence that points to the fact that there's this settlement. I mean, they're back playing on the same circuit, right? So, obviously, this has been resolved, because there was so much bad blood not so long ago, and now they're, like, it's fine, we're in the same tournament. Let's go business as usual.
[00:55:22.33] [Sombre electronic music plays]
[00:55:22.68] [Ryan] Here's what the back to business actually looked like. On August 28th, 2023, chess.com released a statement that read in part, quote, "Since June, both sides have negotiated privately in a good-faith effort to resolve their issues and allow the chess world to move forward without further litigation. We are pleased to report that we have reached an agreement with Hans Niemann to put our differences behind us. At this time, Hans has been fully reinstated to chess.com, and we look forward to his participation in our events. We would also like to reaffirm that we stand by the findings in our October 2022 public report regarding Hans, including that we found no determinative evidence that he has cheated in any in-person games. We all love chess and appreciate all of the passionate fans and community members who allow us to do what we do," end quote.
[00:56:14.78] [Jess] Magnus' statement read, quote, "I acknowledge and understand chess.com's report, including its statement that there is no determinative evidence that Niemann cheated in his game against me at the Sinquefield Cup. I am willing to play Niemann in future events should we be paired together," end quote.
[00:56:32.21] [Ryan] And here's what Hans put out. Quote, "I am pleased that my lawsuit against Magnus Carlsen and chess.com has been resolved in a mutually acceptable manner and that I am returning to chess.com. I look forward to competing against Magnus in chess rather than in court and am grateful to my attorneys at Oved & Oved for believing in me and helping me resolve the case," end quote.
[00:56:54.23] [Sombre electronic music plays]
[00:56:54.67] [Jess] So it's pretty clear from those statements that something happened in terms of a settlement to make everyone play nice together again. I don't think you go to the trouble of thanking your lawyers if the case doesn't land at least a little bit in your favour. But if that's not enough proof for you, here's what Hans and his lawyer said when Piers Morgan asked them directly about this.
[00:57:17.09] [Hans Niemann]
[00:57:17.56] [Piers Morgan] You dropped that?
[00:57:20.14] [Terrance Oved] The case has been resolved, Piers.
[00:57:22.19] [Piers Morgan] Yeah. Did he-- did he pay any money, or...?
[00:57:27.24] [Terrance Oved] We can't discuss that.
[00:57:29.99] [Piers Morgan] Okay.
[00:57:31.03] [Sombre electronic music plays]
[00:57:31.74] [Ryan] Let's say you agree with our postulation that a financial settlement happened and that there's an NDA. Great. Glad that Nicole helped us to win over. What's not so great is that's not a very satisfying ending to this story. Something happened, but we don't know what it was. Great journalism.
[00:57:52.35] [Jess] So we asked Nicole, is it likely that we'll ever get to know what kind of deal was made?
[00:57:58.78] [Nicole O'Byrne] It's not a zero chance, but usually if you breach an NDA, you're financially responsible for a whole lot of consequences that flow from that. I mean, where NDAs are particularly outrageous is in the context of sexual assault. Right? And you see that with the Bill Cosbys, and the Harvey Weinsteins, and those big cases. The women who signed NDAs weren't able to warn other women. And so, then these things just keep happening and cascading. The NDAs, they silence people, because then if you breach that NDA, you're then on the hook financially. Like-- and so, there's a big incentive to not-- and like I said, there's often a clause that says you can't even mention that this NDA exists, right? So people get kind of caught up in that.
[00:58:50.45] With respect to this lawsuit, it's defamation. It's not sexual assault. As a historian, yes, I am an evidence prof, but really, I'm a legal historian-- generally, people tell their stories eventually, maybe not this year, next year. But I bet you 30 years from now, someone will have felt that it was in the public interest to leave their, you know, diary or their writing, or talk to some reporter or something. So I guess I'm telling you to be patient, and eventually a lot of information tends to find its way to leak out. Someone will leave something in their will, you know, part of the story that's long gone, or someone will generally talk. You guys can come back, you know, 20 years from now and see if there's any updates.
[00:59:38.18] [Gloomy music plays]
[00:59:45.58] [Ryan] Even though Hans and Magnus are the main story we're unfolding here, they're not the end of the line. We mention the potential collapse of the future of chess pretty much every episode. But other than explaining about how OTB chess and online chess are at odds with one another, we haven't really gotten into it much.
[01:00:05.12] [Jess] But at this point, we're more than halfway through our planned episodes. And because Hans and Magnus have now kissed and made up, we don't have any other details about their story to share.
[01:00:15.80] [Ryan] But what we do have is three more episodes, and we want to use those episodes to talk about the history and present moment in chess, and why we think the future is in jeopardy-- plus, what needs to change in order to fix it.
[01:00:30.10] [Jess] Because even though we love chess and think it's a truly incredible game, in a lot of ways, it isn't really that special. It's facing a lot of the same problems other big institutions are also facing as our society is sucked deeper and deeper into capitalism and digitalization-- institutions like law and journalism.
[01:00:53.16] [Ryan] Here's Nicole again.
[01:00:54.90] [Nicole O'Byrne] There's a big divide between public and private. And here I'm saying I'm an evidence professor as a legal historian. But really what I am is a constitutional lawyer on the public side of things. Okay? So when you have freedom of speech, and you can go yell on the corner downtown or wave your placard and walk down the street and say, I've got a perspective on something, I want to talk to people or whatever-- our democracy is basically based on that, right? Like, we have a freedom of expression. We can have very unpopular opinions. We can do all sorts of things. You take that same person with a placard who's got something to say and they want to go to the shopping mall that's privately owned, they don't have the same kind of freedom of expression there. That's a commercial enterprise. So those folks can be shut down.
[01:01:42.40] So what we're used to in our democracy, right, is the history of the town square, or that marketplace of ideas, and things are really open and transparent and whatnot. And as that has kind of shifted more and more to profit-making commercial enterprises, having more and more control over that public space-- and we see it in journalism-- have they got the resources to really get at the stories that something like a public broadcaster could do that actually has a public mandate that's funded by public money? They're going to do things slightly different. They're going to have the radio station in Iqaluit. And so, you know, like, in some smaller places and be able to do it in Inuktitut or whatever just because it's the right thing to do in the public interest if we want to be like a pluralistic community that values everyone's participation.
[01:02:32.11] You put in for-profit enterprise-- and this is why we see that crisis in journalism right now-- boy, you can't make money. You're out. Another voice is silent, right? So we really do have to think about the public good versus private. And this is a good example of things moving into the private sphere where, actually, just money is being transferred. How much of a public interest have we got in this? More and more things, in my opinion, are getting pushed into the private realm, where they try to say, well, you don't have a right to know because we're conducting business.
[01:03:07.67] Listening to your podcast has been really, really great to see kind of the difference between, like, FIDE feels they have a responsibility to have rules that everybody knows about. They're transparent. Their processes are fairly open, generally-- maybe a little slow, but they're generally open. And then chess.com can just do whatever it wants.
[01:03:25.99] Like Elon Musk running Twitter, right? He can just pull people off that space. And you can see people being very disoriented off of Twitter or X, or whatever it's called now. But he-- he owns that and can make those kind of decisions. And people are used to it being more of a free-flowing exchange of ideas kind of platform. We've seen it with the internet too. So I think that if you want to have, like, what the meta theme of your podcast, it's the public versus private sphere. And I think that's how you divide out those two worlds of chess. It's not just one's on a computer and one's not. They're regulated and they're controlled and monitored in a very different way.
[01:04:07.07] [Melodic saxophone music plays]
[01:04:07.87] [Jess] Back to the original question--
[01:04:10.39] [Distorted voice] Does this lawsuit actually matter?
[01:04:13.63] [Ryan] Obviously, we think so because we've dedicated an entire episode to it. But if you don't just want to believe us, here's Nicole.
[01:04:24.59] [Music fades]
[01:04:26.04] [Nicole O'Byrne] And I think the bigger issue is, what if this happens again? If they're going to be an effective regulatory body, better have these kind of situations in mind when they're trying to draft and enforce rules and procedure. If people don't actually have faith in these processes, they're going to lose some of the control over this.
[01:04:46.67] They say justice delayed is justice denied. To take a year to make this kind of decision doesn't instill a whole lot of confidence in people if they're trying to say, there's no cheating here, we've got a lot of rules in place, we've got proper processes and procedures. Well, arguably, they didn't in this case. So have they done what they need to do to do the introspection, to maybe change what needs to be changed so that people actually have faith in that governing body? So I would think that this case-- lawsuit or not or whatever-- would have caused a bit of an existential crisis at the FIDE board level. They'd be well advised to take a look at their processes and procedures and make sure that they're up to date, because if this kind of thing can happen once, it can happen again, right?
[01:05:31.01] [Sinister synth music plays]
[01:05:31.41] [Jess] None of this really answers the question of whether this lawsuit matters, though. And maybe that's because that's a bigger question than we expected.
[01:05:41.55] [Mellow electronic music plays]
[01:05:41.95] But when in doubt, you can just make your guests answer the hard questions. That's the whole point of a podcast, isn't it? Here's Nicole again.
[01:05:50.74] [Nicole O'Byrne] I think the scandal matters because it's really shaken up the chess world, I guess. I mean, the amount of media coverage. I asked my students if they'd ever heard of this, and one student was talking about some of the more salacious-- he's like, this is not appropriate to talk about in class, right? But the amount of money and the high profiles and whatnot. Like, it matters. The story matters. It has really resonated with people. People are talking about this. Coverage in the New York Times and all sorts of places. So it matters on that side.
[01:06:24.13] From a legal perspective, I'm going to stick to that answer that says it's a defamation case. You've hurt my reputation, and the other side saying, no. And, in fact, I don't even think your lawsuit has any merit. We shouldn't be wasting court time. And none of your claims have any kind of basis in fact or reality or whatnot. So zero-sum game.
[01:06:46.39] Any kind of precedent coming out of that? No, because it's gone to settlement, and there's arguably an NDA, and the players are back on the circuit playing one another again. And so, time heals all wounds or whatnot. But I think it's the story of this lawsuit that matters more than the intricacies in the statement of claim, or the statement of defence, or any of the legal arguments, or the claims asserted in those documents, because we haven't had a trial, and we just don't know. And there's been no independent judge or jury making a determination on any of these assertions. So we just don't know.
[01:07:26.02] [Rooked outro plays]
[01:07:29.54] [Ryan] Next time on Rooked, We're going back.
[01:07:31.98] [Jess] Way back! All the way back.
[01:07:34.80] [Ryan] Back to the birth of chess. Because even though we're pretty much through all the gory details of the Sinquefield Cup anal beads scandal, we still have some questions about where chess is headed that we need to figure out.
[01:07:47.54] [Jess] And sometimes you need to look at where you came from to get closer to that answer.
[01:07:54.67] [Music fades]
[01:07:55.56] [Magnus Carlsen, distorted voice with reverb] PIPI in you Pampers.
[01:07:58.97] [Rooked outro plays]
[01:08:01.71] [Ryan] Thanks to our King-tier Patreon subscribers: Umaima Bagg, Madelyne, Gourd, and Mya Schmidt, Stefan Vezina, Marie Edwards.
[01:08:12.03] [Jess, whispering] And Derek Keane.
[01:08:13.51] [Ryan] And Derek Keane.
[01:08:21.22] [Music fades]
[01:08:24.15] [Rooked outro plays]
[01:08:28.08] [Jess] Rooked: The Cheaters' Gambit is written and produced by me, Jess Schmidt.
[01:08:32.02] [Ryan] And by me, Ryan Webb.
[01:08:33.61] [Jess] Our amazing music is by the ever-talented Lorna Gilfedder.
[01:08:36.91] [Ryan] Our marketing is by media genius Bailey Simone Photography.
[01:08:40.15] [Jess] Our executive producers are Rooney and Indigo.
[01:08:42.37] [both] Speak.
[01:08:44.52] [Rooney and Indigo howling]
[01:08:46.88] [Rooked outro plays]
[01:08:48.30] [Jess] This podcast is recorded on the traditional Treaty 7 territory of the Blackfoot Confederacy, the land of the Siksika, the Kainai, the Piikani, as well as the Stoney Nakoda and the Tsuut'ina Nations.
[01:08:59.71] [Ryan] We acknowledge that this territory is home to the Metis Nation of Alberta, Region 3, within the historical Northwest Metis Homeland. In the spirit of respect, reciprocity, and truth, we honour and acknowledge all nations, Indigenous and non, who live, work, and play on this land, and who honour and celebrate this territory.
[01:09:18.57] [Jess] This gathering place, and therefore this podcast, provides us with an opportunity to engage in and demonstrate reconciliation. The government of Canada has not followed through on a number of the Calls to Action that have been suggested by the Truth and Reconciliation Commission of Canada.
[01:09:34.65] Indigenous people are overrepresented in the Canadian criminal justice system as both victims and survivors and accused or convicted individuals. The implementation of culturally relevant community-based justice programs is one solution that helps to address the impact of cultural differences within the criminal justice system. The development of justice-related programs and services by Indigenous communities based on local needs and tailored to local cultures and traditions have had positive results.
[01:10:03.02] Indigenous approaches often reflect restorative justice, principles and healing. They often directly involve those that the harm was done to, including the community. The mainstream punitive measures our justice system is currently built on creates a revolving door that perpetuates the criminalization of colonial trauma. Community-based justice programs offer support and opportunities for healing that have long-lasting remedies. Our justice system is broken, but there's ways for us to fix it. Do better, Canada.
[01:10:34.45] [Music fades]