I won’t venture to guess what will happen in Hans Niemann’s $100 million defamation lawsuit against world chess champion Magnus Carlsen and grandmaster Hikaru Nakamura, who are among the many who’ve accused the young plaintiff of cheating. As others have pointed out, Niemann faces a number of straightforward legal challenges. Even if he meets them all, practical roadblocks abound.
The contretemps began in early September, when Niemann defeated the rarely beaten Carlsen in a game at a prestigious tournament in St. Louis, Missouri. Carlsen left the tournament and hinted that there were things he wanted to say but could not. Not long after, a number of players and journalists began to wonder aloud if the 19-year-old rising star might have cheated. Elon Musk tweeted on the controversy. Major papers covered the scandal. When Carlsen and Niemann faced off again at a different tournament, the world champion made a single move and then resigned.
According to Niemann’s lawsuit, the accusations of cheating have cost him income and opportunities. (The other defendants are the companies Magnus Chess and Chess.com, and Chess.com executive Daniel Rensch.) Like many defamation suits, Niemann’s action also claims antitrust violations and tortious interference with contract, but it’s hard to win on those claims unless one first makes out the case for defamation.
And historically, lawsuits by individuals accused of cheating at games have had a mixed but mostly rocky history.
Consider one of the most famous slander cases of the 19th-century, Sir William Gordon-Cumming’s 1891 lawsuit against several people who accused him of cheating at baccarat. Witnesses for the defense included his old friend, the Prince of Wales, who was playing in the same game. In his closing argument, Gordon-Cumming’s solicitor contended not that the witnesses had lied, but they had only “thought” the plaintiff cheated — a belief in which they were mistaken. Despite what one historian has labeled “serious irregularities in the evidence,” the jury gave a verdict for the defense.
A more pertinent precedent might be a 2004 decision by the US Court of Appeals for the 7th Circuit in a lawsuit brought by a professional bridge player who was suspended after allegations of cheating. The panel upheld the trial judge’s determination that the federal courts should not second-guess either the findings of the American Contract Bridge League or the judgment of an appropriate punishment. Although the suit did not allege defamation, the plaintiff did allege what the court described as “a vast conspiracy against him among the leadership” of the league. But in the absence of strong and closely pleaded evidence, courts almost never accept such contentions.
Then there’s the 2010 Indiana case in which a golf teaching pro sued after a colleague accused him of being “a cheat” because he claimed a different classification than the one to which he was entitled. The Professional Golf Association investigated the colleague’s allegations and agreed. When the pro subsequently sued the person who’d leveled the original accusation, the court dismissed the defamation claim because the “statements were true.”
But let’s notice what happened. The court didn’t undertake its own investigation; it deferred to the PGA. Why does this matter? Because the organization’s own judgment was sufficient to shield the defendant from liability.
That’s not to say that those accused of cheating at games can never win. In the 1930s, when the champion bridge player William S. Karn was accused of cheating, he sued for slander. But first, he stepped back from competition (“as any gentleman would,” huffed the New York Times). In 1941, Karn won his lawsuit, but he received no damages.
Want a more recent example? Last year, a California appellate court ruled that the defamation lawsuit by the gamer Billy Mitchell against Twin Galaxies could go forward to trial. Mitchell had once been recognized as the world record holder at the company’s popular arcade game Donkey Kong, but after questions were raised, Twin Galaxies investigated and cancelled his scores, on the ground that they were not earned on “an original unmodified” version of the game — asserting, in effect, that Mitchell had cheated. The key claim was that Twin Galaxies had acted with “actual malice” by allegedly refusing to look at evidence of the plaintiff’s innocence.
I suspect that the court will require a colorable showing of malice from Niemann as well, for, like Mitchell, he’s at least what’s known as a “limited public figure” — that is, prior to the events in question, he was well known in the chess world.
And that’s where the problem arises. Was Carlsen really acting — as the courts like to say — with reckless disregard for truth or falsity? The case lies in a murky middle ground. Niemann has confessed to having cheated at online chess when he was younger. An investigation by Chess.com concluded that he did so more frequently and more recently than he let on.(1) On the other hand, Niemann has denied ever cheating over the board (as real-world games are described), and a computer-aided analysis by Ken Regan, the leading expert on cheating in chess, found “no reason” to suspect him of cheating based on the Carlsen game and other recent results.
Yet that’s not the end of the matter. Cheating over the board is of course much harder than cheating online. Still, the stain of one’s past conduct can be difficult to avoid. As one chess blogger recently put it, “Niemann has cheated more often and more recently than he admitted, and at least for the moment his protestations of innocence aren’t going to find many sympathetic ears.”
There lies the difficulty. If, as seems likely, the court finds Niemann to be a limited public figure, he’ll have to show not just that Carlsen and the other defendants said something that wasn’t true, but that they did so out of malice, often defined to include a reckless disregard for truth or falsity. That’s a tough demand, given Niemann’s own admitted previous conduct. “He cheated before, so he must be cheating now” lacks the iron inevitability of the logical syllogism, but it’s very much the way people think.
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(1) Another defendant in the lawsuit is accused of leaking this report to the Wall Street Journal.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Stephen L. Carter is a Bloomberg Opinion columnist. A professor of law at Yale University, he is author, most recently, of “Invisible: The Story of the Black Woman Lawyer Who Took Down America’s Most Powerful Mobster.”
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