Hello folks, and welcome to one of the few articles in this column that will not deal directly with alternate formats, multiplayer, kitchen table Magic, card valuations, or decklists. No, today I want to give you a reworking of my fifth article ever published on this here site, way back in May 6, 2002, before I was even paid to write.
The topic of today’s piece is judging, which goes far outside my normal article remit. First of all, some credentials. As a judge, I ran HeroClix tourneys for a long while, as a level 2 envoy, so I have experience with judging as a role, although none with real life Magic.
Oh, and I have a ton of experience as a hearing officer. For fourteen years, I have done confrontations and hearings for residents on stuff a lot more serious than what happens in tournaments (usually). I have been the hearing officer for hundreds of cases on things from noise to arson, harassment to theft. I am also a member of the Association for Student Conduct Administrators.
What I want to do is discuss the role of the DCI in regards to sanctioning players, what the legal ramifications are to such things, and the role of an adjudicator in these sorts of proceedings.
Let’s say you go to your local tournament, and get caught accidentally forgetting to shuffle your deck; you just stacked your lands and cards from last game, and then handed the deck to your opponent for the next without thinking to shuffle. Your opponent calls a judge and you get the appropriate consequence based on rule enforcement level, history, and so forth.
However, that is all a judge can do. Later, the DCI will decide to so anything else, and for most stuff, they don’t do anything. Your Warning or Game Loss is not going to get extra attention from the DCI. What if you do more? What if you add cards to a sealed pool? What if you physically assault a judge? What if your deck mysteriously is set 2 cards/1 land throughout? What if you are caught for an infraction at one tournament, but have a history of being caught at others for the same thing?
One of the things the DCI must do, in addition to running tournaments, judges, and such, is to make evaluations when behavior has crossed the line and the sanction should go beyond one event.
This is the greyest part of the job.
It is not easy being a hearing officer. Sometimes your decisions are obvious, but many times they are not.
Judging has become much more open these days. You only have to look at Kevin’s highly detailed judge view of two recent high profile cases to see that. With such open conversations (at times), there is a good chance for players to see what happened from the judge’s perspective and get a great idea of why they made the decisions that they did.
Okay, let’s take a look at three issues that I think affect players, and are often considered by people when discussing this issue.
One of the most common complaints that you see in forums and such is the discussion that the DCI or judges are infringing on various rights, such as privacy, speech, and so forth.
While different countries have different sets of rights, most modern countries with a high Magic playing population have a similar set of rights that protect your right to say what you want, vote for whom you want, go where you want, and be who you want. Success of these on such a large scale in the modern world is one of the great advances in the past several centuries, and now many people have the same rights. Cross into Canada or fly into France, and you still have the same basic expectations.
Sometimes people think that these protections from government apply to the private sector. Note that they often do not. The expectations of privacy at work, with e-mails and such, is nil. In America, for example, courts have upheld business cameras even in bathrooms. What you say can be infringed by the business you work for. Businesses reserve the right to either fire you, or not hire you, based on what you have publicly espoused. You could be fired from a drug clinic for leading rallies to get people to take drugs, even on your off time. You can be disciplined for writing an editorial that hurts your company for the local paper.
However, note that most of these involve the question of actual rights. Certainly there is a small overlap with the DCI in things like verbal harassment and discriminatory speech at tournaments. Yet, if I were to draw a Venn Diagram of rights, and what the DCI deals with, there would only be a small overlap in the circles.
Sure, the DCI has a right to make sure that players are harassment and discrimination free. If you overhear a player making racist jokes and it offends you, report them. Frankly, I personally believe that Magic players make far too many jokes geared to sexual orientation, and I wish that more players would report them and more judges would start stamping that out at tournaments, rather than contributing or doing nothing when they overhear it. Making these sorts of jokes over and over again is not okay.
The DCI has every reason to want to have potential clients (in this case, players at tournaments) feel free from harassment and offense by other clients. In a store, you would expect the staff to ask someone who did these things to leave if they would not stop offending others around them. The same is true at a DCI tournament.
Most of the other things that the DCI can do, or polices, do not involve rights. You don’t have a right to a shuffled deck, or an extra Warning before a Game Loss. There are no contracts you signed with the DCI explaining what you can and cannot do, and explaining what the DCI is required to do as well. The DCI can run a tournament in the worst possible way, and you still cannot hold them accountable for breach of contract.
One of the ways courts adjudicate whether or not a case involves the infringement of rights is to see what is taken away. In this case, all the DCI can do is prevent you from playing in DCI sponsored events in the future (and RPGA events too). You can still play Magic, buy cards, play in non-sanctioned events, play in events by other sanctioning bodies, play online, and so forth. You are only banned from RPGA and DCI events. Since only a little is taken away, there is not much required on the part of the government. In fact, if the DCI banned every person who didn’t give them 10 dollars, it wouldn’t make the splash legally, because they have the ability to deny clients.
That’s all banning is — denying certain people from being a client. A store, as a private company, has the right to deny a client based on a good reason and no reason, but not a bad reason. The DCI can ban you for life for failure to shuffle your deck if they want. But, if they were to ban all black people, then there would be an issue of rights.
Understand, being a member of the DCI is a privilege, not a right, and no rights are denied you by being banned from participation in tournaments.
The next topic discusses things like what process the DCI and others use, and the way they make their decisions.
The first is the whole Standard of Evidence.
Decades of Law and Order and other criminal court dramas have ingrained on the American psyche the concept of burden of proof and reasonable doubt. Others countries may have similar or different burdens for their criminal courts.
However, that’s not how most courts work. In civil court, that burden of proof does not need to be met. If you sue someone, or want custody of your kids, your burden of proof is much lower. Most cases are not subject to reasonable doubt.
Adjudications are not even required to have that standard. If you meet with an Administrative Law Judge over your Social Security benefits, there is a lesser standard of proof. When one of my residents is accused of doing something they are not supposed to do, I have a lowered standard of proof. Our standard is More Likely Than Not. If it is more likely that you are responsible than not responsible, then I find you responsible. Just 51% is required. Let me give you an example.
Suppose my RAs come into your room and find a towel under your door, the window open in January and a fan blowing out of the window with dryer sheets on the fan, and when they knocked on your door you yelled out “It’s the RAs,” and then raced to the bathroom and flushed the toilet before opening the door and spraying a bunch of that nasty air spray stuff that stinks a room up with something that is not a real smell like Summertime or Happiness.
In a criminal court, you might be found not guilty of marijuana possession.
In my office, you would be found responsible.
Make sense? If I have two witnesses saying you vandalized the hallway, but no physical evidence, and you claim you weren’t, I will find you responsible. If I have a true He-Says-She-Says, and nothing supports either side, than that is a true 50/50, and I make no decision either way.
In my job, I may assess a fine against someone, make them do extra work, send them to counseling, kick them out of the residence hall, and so forth. That’s a lot more than the DCI can do to you. An Administrative Law Judge can deny you thousands of dollars in Social Security benefits, and only needs the same standard of proof as me. If we only need that standard, the DCI certainly shouldn’t need more.
Therefore, it would be silly of any player, including me, to expect that the DCI need a smoking gun before making a decision that removes your ability to participate in the program.
Now, from everything I have read, the DCI often bends over backward at making sure they are confident before moving forward with suspensions. That means the DCI is already giving you more than they have too. The paranoid side of me says, “Of course they are, they make more money from tournaments that way,” but realistically I doubt the amount of money that a few hundred extra accounts suspended for six months or a year would make much of a drop in the bucket, so the rational side of me tells the paranoid side of me to shut up and sit down. Whether it is self-serving or not, the fact is that the DCI usually requires more evidence than a simple 50+% rule, which is rather nice of them. That should be making you happy as a player.
One of the major remaining complaints is what people see as inconsistencies. Here is the list of current suspensions, and why. Note that although the top says current as of January, date, 2009, it is actually up to date as of 2010.
When you take a look through the suspensions list, you find some obvious “inconsistencies.” For example, here are the names of two people, back to back, on the list:
Josh Queen, Centerville, NC United States 2009-08-05 to 2010-08-05 Adding cards
Donovan Redd, Taylor, United States 2009-08-10 to 2010-02-10 Adding cards
I just grabbed these two names from the list; you could grab others. Here is the “inconsistency.” Note that Josh got one year off as his sanction, and Donovan got just six months ban time. What’s the deal?
Now, obviously I don’t know what happened in Josh and Donovan’s situation. I could not tell you why either got what they got, I just chose them from the list. However, I can tell you why different people get different sanctions for the same infringement.
Degree — The first reason is the degree of the violation. I normally give out verbal warnings to a resident for their first noise violation, because noise violations are pretty common and easy to accidentally do. I would rather teach responsible behavior than punish it outright at first. However, if you turned up your music so loud that it was vibrating the floor, than that goes beyond normal issues of noise, and due to a more significant degree of violation, they would get a higher sanction. This is pretty common. Pets, other than fish, are not allowed in the res halls, but there is a big difference between a hermit crab and a snake as a violation. Snakes can get out and they can be quite problematic. You are not going to be chasing a hermit crab down a hallway. Thus two different sanctions may result.
History — Sure, the first noise violation is normally a verbal warning, but what about the second, or the third? At some point in time, it moves to the next levels of sanctions, such as fines, extra work, probation, and if it continues long enough, eventually removal. Additionally, having been found responsible of other violations more than once often increases future sanctions, even if they are not the same thing. If someone who had no history was caught vandalizing, they would get a lesser sanction than someone who was already caught with underage alcohol and then caught vandalizing.
Cooperative-ness- How cooperative was the individual? Did they admit it? Were they rude and hostile? These can factor in to the sanction I give. Someone who is polite to my RAs, admits their error, is likely to get a much different sanction than the person who refuses to give up their ID, curses at staff, and tries to tell me it was someone else’s fault in the hearing.
Mitigating Circumstances — Every year I get a handful of cases that seem like one thing, but I don’t want to give out that one thing’s penalty. I’ll give you an example. At my university, we have a zero-tolerance policy on violence. If you get in a fight in my residence hall, then I am kicking you out, period. Let’s suppose that someone starts yelling at you, and you yell back for 20 seconds, before they punch you, and the fight begins. I’m kicking you out, because you escalated it with that typical pre-fight stuff, and had plenty of time to leave or bring it down. On the other hand, let’s suppose that you were walking down a hallway when someone jumps out at you and cold cocks you. Your initial primal decision is to fight and you punch them once in reflex, before realizing what is going on and leaving the area. Yes, you fought, you swung and hit someone, but is that the same thing? It’s fighting, and it is violence, but I would argue to keep that person in the res halls if they had no history of any discipline problems.
Because of these four things, the sanction that the DCI gives can be radically different despite technically falling into the same category. There are legitimate, logical and just ways for sanctions to different without it being colluding, conspiracies, graft and incompetence.
Anyway, overall, based on what I have read and seen, I think the DCI is doing a good job with this stuff. Hopefully, this article educated you a bit about the processes and issues revolving around non-legal sanctioning bodies and hearing officers. See you next week.