Disclaimer: I am not a judge, and therefore welcome any corrections to my understanding of the rules and penalty guidelines discussed below.
This past weekend during the Legacy portion of the StarCityGames.com Open Series in Memphis, TN, Drew Levin was given a game loss going into game 3 of his quarterfinals match versus eventual winner, Alex Bertoncini, for presenting a 59-card deck. Bigheadjoe and I were doing the SCGLive commentary for the match, and while I presented my initial opinion on the broadcast, I wanted to clarify/summarize/update my thoughts on the situation.
Most of my statements on the broadcast were from the perspective of a viewer—not a player in the match. The analogy I made on screen was this: It’s as if you were watching an NFL game, and one of the teams accidentally sent 12 men onto the field. The play starts, the whistle blows. “12 men on the field, offense. Game loss.” Team loses. Game over.
We invited two judges in the booth to explain things, and they did a great job of clarifying the situation. Everything was done entirely by the book, and the penalty was applied accordingly. However, even after some further discussion since the event, I question whether this penalty is appropriate for this situation.
The arguments/reasoning I’ve been hearing all seem to be one of the following:
1) “These are the rules.” (I don’t dispute this.)
2) “It’s been this way for years.” (I don’t dispute this.)
3) “The reason it is this way is due to the potential for abuse.”
As noted above, I’m not disputing the existence of the rule, nor its longevity. What I am doing—and what I think should be done for anything of this nature from time-to-time—is questioning this rule and the logic behind it, to see if improvements can be made. Healthy discussion of these topics is imperative, in my opinion.
Let me pause here for a quick anecdote.
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Last summer, a friend of mine and his wife gave birth to their first child. On the way home from the hospital, she was in significant pain, so they stopped at a pharmacy for the painkiller prescription given to them by their doctor. While his wife waited in the car, my friend gave the prescription to the pharmacist, only to discover that the doctor had left the “Quantity” field blank. The pharmacist would not fill the prescription. My friend requested whatever the minimum amount that would normally be prescribed, but the pharmacist refused. This is no fault of the pharmacist. The law is set up the way it is due to the potential for abuse. Thus, the innocent are made to suffer at the hands of the laws that are supposed to protect them, simply due to the existence of the guilty.
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The reality of the situation is that Drew presented a 59-card deck, leaving the 60th card in his sideboard. Whether this was intentional or accidental cannot be determined.
However, it has to be one or the other, right?
Option A). Drew intentionally attempted to gain an edge by presenting a 59-card deck.
Option B). Drew accidentally—unintentionally—presented a 59-card deck (miscounted his sideboard/maindeck, sleeves stuck together, distracted by table discussion—the reason is irrelevant).
My questions are these:
If there were a way to prove one way or the other:
○ Is a game loss an appropriate penalty for Option A?
○ Is a game loss an appropriate penalty for Option B?
I’m going to make some assumptions and say the answer to both of the above is No. Option A is downright Cheating, and a game loss is not penalty enough. Option B is accidental—and thus implies some amount of innocence—making a game loss too harsh of a penalty.
Was this penalty put into place to find some sort of middle ground? Was it deemed appropriate to treat both possibilities incorrectly in order to split the difference? Since a game loss can have several different repercussions (getting a game loss in Round 1, Game 1 certainly stinks, but allows you to recover; getting a game loss in Game 3 of a top 8 after working hard for several hours to get there is an entirely different punishment), was this put in place in the hopes that maybe the variable nature of both the infraction and the penalty would allow punishment and crime to occasionally align?
The way it works now, at least as far as I can tell, is that essentially we are punishing players for a crime they could potentially be guilty of, but tempering that by not punishing them to the extent we would if we could prove they were guilty. By making this the procedure, we are accepting the unnecessarily harsh treatment of players who commit an infraction by accident.
Is this how we want the rules to work?
UPDATE: I am getting some really great responses to this already, and as a result I am seeing things differently (or maybe just more clearly). I wanted this to stir up some discussion, and it has.
All the responses have been excellent, but I want to highlight one in particular, so I am moving it here to the main post:
Joey, I think your attitude is in the right place. The problem is the implications of changing the penalty.
Penalties are issued for one of two reasons: The player is attempting to cheat (and thus must be disqualified) or the player’s actions have caused disruption to the game state, whereupon the severity of the penalty is (in theory) warranted by the level of disruption to the game state and/or the potential for abuse. With all that kept in mind, let’s look at the presentation of a 59-card deck.
If a player is running the cheats, a DQ is warranted.
If a player is not cheating, the issue gets a little trickier. You’re right, getting a GL for presenting 59 when it’s discovered at the start and so easily fixed before the game begins seems a little harsh. So, let me ask you this: Is a Game Loss an appropriate penalty if the fact that one deck is 59 cards is discovered in the middle of the game? I’d say yes. The fact that pro players almost always hew true to the doctrine of 60 in Constructed and 40 in Limited bears witness that diluting one’s deck is a bad idea. If the minimum deck size were lowered, people would run with whatever that was. Having a smaller deck gives an advantage. If the problem were discovered in the middle of the game, the disruption to the game state is high – all the cards drawn to this point have been affected – and as such the only equitable penalty is giving a game loss to the offender.
So, having established that this happening in the middle of the game is a serious problem, we now run headlong into the issue you raised: what do we do when one player presents 59 and it is found right then and there? I think it *has* to be the same penalty as the midgame discovery. Why? Because otherwise we run into all sorts of awkward incentive issues – e.g. players would count their opponents’ decks while shuffling after a midgame fetchland instead of during pregame procedures. You could mandate that at Competitive REL and above, players are required to count their opponents’ decks during the pregame procedures, much in the way that players are required to shuffle – but, not only is that a little too much nanny-state for my liking, then the incentives become a little more perverse. What if a player counted pregame, didn’t find 59, counts after a fetch, finds too few cards, and calls a judge? Then the judge has a Cheating investigation on their hands too, because there is of course the suspicion that player B did not say anything during pregame procedures in order to get the penalty now. It’s a bigger mess than what we left behind.
In short: It sucks for Drew that he got this penalty during an important game. But it’s important for the health of the tournament game that deck integrity be defended, and I just don’t see any options better than what we’ve got.
-David Kotsonis
Level 1 DCI Judge
two_eyes on twitter
UPDATE 2: More responses have been coming in. In the comments section below, Arthur Halavais correctly points out the difference between a “penalty” and a “punishment,” noting that “Drew was penalized with a [game loss], not punished.” In this post I used them interchangeably to mean “the consequences of an infraction as applied by the judges according to the rules.” While this use may not have been 100% correct according to Webster, I believe the intended definition is clear, for the most part.
MTG judge and all-around awesome guy, Riki Hayashi (who was present at the event) posted a response to this on his own blog. Check out what he has to say here. His response is different from all others I’ve seen, and is definitely worth a quick read.
Last weekend, former pro mainstay and longtime burn-slinger Patrick Sullivan won the 
Affinity For Islands 