Thursday, June 11, 2009

Using Precedent

(Disclaimer: As I have had no legal training parts of this post may be completely wrong from a legal perspective. If so feel free to correct me)

Having got involved with the FIDE Rules and Tournament Regulation Committee, one thing I've noticed is the difference between how players see the rules, and how arbiters see the rules. But let me explain.
Most criticism of the rules from players concern rules that are published. For example, the rule concerning forfeit time or the rules concerning insufficient material to mate (cf KN vKN controversies) attracted a lot of criticism from players. On the other hand, when the RTRC was meeting in Dresden, most of the concern from arbiters was about rules that were not written. Their big worry was that without a published rule they wouldn't know how to make a correct ruling.
Part of the latter problem is caused by the lack of published case law, or the acceptance of it. If we think of the FIDE Rules of Chess as statute law, to mimic a full blown legal system, there needs to be a repository of published case law. By that I mean somewhere where arbiters can look up decisions previously made by other senior or experienced arbiters, and use this decisions as a precedent to support their own decision making. And just as in a proper legal system, such decisions may be reviewed by a higher body (appeals panel or FIDE itself), resulting in a definitive ruling for that set of circumstances.

Here is an example of what I mean.

In the Radjabov v Smeets game at Corus this year (2009) there was an incident jut before the first time control. On his 39th move Radjabov moved a rook but in doing so knocked over Smeets' bishop. Radjabov then pressed his clock without returning the bishop to the correct square. Smeets immediately restarts Radjabov's clock, and asks him to replace the bishop. Radjabov presses his own clock, but by this stage has lost on time.

At the time the arbiters took a pragmatic approach of letting the players agree to a draw (as Radjabov claimed that Smeets acted illegally in speaking to him during the game), but that doesn't address the 'legal' position.
Geurt Gijssen was asked about it in his April 2009 Arbiters Notebook column. In his opinion he felt that Smeets had acted correctly under Article 7.3 of the rules of chess, and that Radjabov should have lost on time.

Given Gijssen's position as chair of RTRC, I would suggest that this opinion is now established precedent for situations of this kind, and therefore as an arbiter I would allow a player to act in the same way as Smeets (restarting the opponents clock), without sanction. And I would do so until either (a) the FIDE Laws of Chess are altered to deal with this situation in a different way or (b) a higher authority (the full RTRC, FIDE Presidential Board or FIDE General Assembly) offer an alternative ruling.


DieuEtMonDroit said...

This is really interesting Shaun. I had no idea there was so much dispute over the rules of chess.

Having said that though, I just finished reading 'Bobby Fischer Goes to War'. It just goes to show how important the 'spirit of chess' is in terms of ensuring fairness (Spassky obviously getting a raw deal in Reykjavik).

My gut feeling re spirit of chess is that a draw was not really a fair result since Smeets was so far ahead on time and had the more realistic chance of winning. However, as you have pointed out, once you bring subjectivity into the rules it becomes more problematic to enforce them (although for Fischer all the rules were subjective)!

Kevin Bonham said...

I would be very cautious about taking Gijssen's personal opinion as precedent for anything as there have been many cases where he has offered Chess Cafe opinions that are clearly wrong and this sometimes leads me to question the degree of care in some of his responses on Chess Cafe.

A good example of this that I will always remember concerns 10.2. Under the 2001 Laws Gijssen was given to claiming that in a case where the arbiter postpones the decision and the claimant's flag later falls, the arbiter should only judge whether the opponent was trying to win, and not whether the final position can be won by normal means.

Although it was obvious to me that there was no warrant in the rules for the distinction Gijssen was making, I specifically proposed to FIDE that it should be explicit that the final position can be judged. That is how "He shall declare the game drawn if he agrees that the final position cannot be won by normal means, or that the opponent was not making sufficient attempts to win by normal means." came to be included in the 2005 Laws (and it is in for 2009 as well.)

Despite this in 2006 Gijssen repeated his claim: "The only thing the arbiter has to do is observe whether the non-claiming player is trying to make progress."
I had to write in and correct him, and a point I made in doing so was that senior IAs like him probably had very little experience of actually using 10.2 whereas club-level arbiters had much more.

There have been many other cases in which Gijssen's views on situations in his ChessCafe columns have been shown to be totally wrong.

In terms of the legal concept of precedent, suppose that a low-level judge makes a ruling and then a very senior judge writing an opinion column somewhere on the internet says he disagrees with it. I do not think that would be seen by lawyers as overturning the original precedent, let alone setting a new one. If, however, there had been a successful appeal then that would overturn the precedent. Also if there had been a subsequent formal ruling by a higher body (as used to now and then happen) that would do the trick.

But I would not say Gijssen's position as chair carries any weight unless he is speaking in that role and with due authority to do so. I take his CC columns as being just his own opinions and not representative of his position.

The only precedent that I would say has been set is that by the original arbiter, in the absence of any overturning of it. And that precedent was that where there are arguments on both sides and the players offer to resolve the situation by agreeing a draw, let them. This is of course no guide for a position in which there is no such willingness.

However, the original arbiters also said that had the players not agreed a draw (which Smeets did only out of sportsmanship because he had been losing) then Smeets would have been awarded the win.

abeer ahmed said...

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Anonymous said...

You are absolutely right there is a huge difference between how players see the rules, and how arbiters see the rules. Can you fix this asap?? Have FIDE pay someone to do it, if volunteers repeatedly fail to produce. Thanks for considering.

Anonymous said...

"There have been many other cases in which Gijssen's views on situations in his ChessCafe columns have been shown to be totally wrong."

This is unfortunately so true, and with one of FIDE's top arbiters!! With some claims he made on ChessCafe even an amateur could see something is wrong. I find this kind of sad. Thank you for reading and allowing anon comments.

Anonymous said...

And lastly, the reason for the Arbiters disputing on the Rules and how to decide is exactly the lack of public online experts feedback from all the major decisions made in the past. I personally feel there is some sort or "arbiters conspiracy" here, and since decades ago?!