You come at the king, you best not miss.
— Omar
Yesterday, 19-year old chess Grandmaster (“GM”) Hans Niemann filed a lawsuit in the U.S. District Court for the Eastern District of Missouri alleging chess World Champion GM Magnus Carlsen, GM Hikaru Nakamura, Play Magnus L.L.C., chess.com, and chess Intentional Master and Chief Chess Officer at chess.com, Danny Rensch, defamed Niemann and tortiously interfered with Niemann’s business relationships. The case centers on Carlsen’s allegations Niemann may have cheated against Carlsen in a game at the Sinquefield Cup, a prestigious, official competition of the International Chess Federation or World Chess Federation (“FIDE”). The allegations rocked the chess world, with pundits and experts alike speculating for weeks over whether Niemann cheated, and how he could do so in an “over-the-board” (“OTB”), in-person game. A series of escalations in the drama, from Magnus withdrawing from the Sinquefield Cup, to resigning on the first move in his next game against Niemann, to chess.com publishing a dossier on Niemann’s alleged cheating in online chess, have drawn the attention of the wider public with articles appearing in mainstream media like the Wall Street Journal. (See “Chess Investigation Finds That U.S. Grandmaster ‘Likely Cheated’ More Than 100 Times” for a factual summary of the controversy.) Considering Carlsen’s legacy as the greatest chess player of all time, Niemann’s career as a rapidly advancing top chess professional, and the future of the game and cheating therein are on the line in this case, a legal analysis of the case and its merits is in order. It goes without saying this is not legal advice, just my opinion, which other attorneys may disagree with. Corrections as to facts and law and criticism of arguments are welcome.
Jurisdiction & Venue
Niemann and the defendants have extensive contacts with the state of Missouri through their live participation in the Sinquefield Cup tournament, which is held in St. Louis, Missouri. Niemann is a resident of Connecticut; Carlsen is a resident of Norway; Nakamura is a resident of Florida; Rensch is a resident of Utah; Play Magnus is a Norwegian company; and chess.com is a Nevada company. Niemann is claiming $100,000,000 in damages. And the events underpinning the causes of action occurred in substantial part in the Eastern District of Missouri. Therefore, the Eastern District of Missouri is the proper venue, the court has personal jurisdiction over the parties, and subject matter jurisdiction over the case as there is complete diversity between the parties and an amount in controversy greater than $75,000.00. We can safely conclude this is a diversity case that will be heard in Missouri federal court. Therefore, the Erie doctrine will apply, meaning the court will apply Missouri state law to substantive issues and federal law to procedural issues.
Motion to Dismiss
The first procedural issue is whether Niemann’s complaint will survive Federal Rule of Civil Procedure 12(b), a motion to dismiss the complaint for failure to state a claim. Twombly/Iqbal requires a plaintiff’s complaint allege facts sufficient to support a clearly identifiable claim. A short and plain statement of the facts is all that is required; detailed facts are not necessary. However, the factual basis must reasonably describe a claim that is plausible on its face, not merely a claim that is conceivable or possible. And as with all motions to dismiss, the court will accept the plaintiff’s alleged facts as true for the purposes of the motion. Those alleged facts include:
§ 8 “Carlsen viciously and maliciously retaliated against Niemann by falsely accusing Niemann, without any evidence, of somehow cheating during their in-person game and demanding that the organizers of the Sinquefield Cup immediately disqualify Niemann from the tournament.”
§ 9 “Carlsen lashed out again, this time by boycotting the remainder of the Sinquefield Cup in protest—an unprecedented act for a top chess professional, let alone the reigning World Champion. Carlsen then confirmed his defamatory accusations against Niemann with a provocative post on Twitter, which had the intended effect of disseminating Carlsen’s false accusations that Niemann had cheated against him across the globe.”
§ 10 “Days later, Carlsen was scheduled to play Niemann again in the Julius Baer Generation Cup. Rather than seek to redeem himself from his unexpected loss to Niemann, Carlsen, the “King of Chess,” gutlessly forfeited the game after making one move, and then issued a press release repeating his false accusations that Niemann had cheated against him at the Sinquefield Cup.”
§ 12 “Due to his unparalleled stature and influence in the chess community, Carlsen knew that (i) the public would believe his accusations of cheating against Niemann, even though Carlsen had no legitimate basis to believe Niemann actually cheated against him; (ii) he could ensure that no reputable chess tournament would invite Niemann to compete in the future; and (iii) his false accusations would cause other top chess players to boycott Niemann as well.”
§ 14 “Nonetheless, following Carlsen’s baseless and retaliatory accusations, Carlsen unleashed his media empire to fan the flames of Carlsen’s cheating accusations, drown out the legitimate evidence refuting them, blacklist Niemann from top-level chess tournaments, and protect, at any cost, his eponymous Play Magnus brand and status as ‘King of Chess.’ Almost immediately thereafter:
Chess.com, in collusion with Carlsen and Play Magnus, immediately banned Niemann from its website and all of its future events, to lend credence to Carlsen’s unsubstantiated and defamatory accusations of cheating;
Defendant Hikaru Nakamura (‘Nakamura’)—Chess.com’s most influential streaming partner—acting in collusion with Carlsen and Chess.com, published hours of video content amplifying and attempting to bolster Carlsen’s false cheating allegations against Niemann with numerous additional defamatory statements; and
Chess.com executive Danny Rensch (‘Rensch’) issued defamatory press releases, and leaked defamatory ‘reports’ to prominent press outlets, falsely accusing Niemann of lying in his post-match Sinquefield Cup interview regarding his use of a ‘chess engine’ in a handful of recreational online games when he was a child, to bolster Carlsen’s unsubstantiated defamatory accusations that Niemann cheated against him at the Sinquefield Cup.”
§ 15 “Niemann can no longer compete in any online Chess.com or Play Magnus tournaments, and will not receive invitations to in-person events sponsored by Chess.com or Play Magnus, which collectively comprise the majority of FIDE-sanctioned chess tournaments.”
§ 16 “Already, based on Defendants’ defamatory accusations: (i) the Chess.com Global Championship revoked Niemann’s invitation to play in that tournament in October 2022, even though Niemann earned that invitation through his exceptional play; (ii) teenage Grandmaster Vincent Keymer cancelled his upcoming game with Niemann in Germany; (iii) the Tata Steel Chess Tournament, one of chess’s most prestigious tournaments, immediately ceased its ongoing arrangements for Niemann to play in its January 2023 tournament; and (iv) Niemann cannot obtain employment as a chess teacher at a reputable school.”
§ 80 “Unable to accept the reality of his unexpected loss, Carlsen reflexively retaliated by defaming Niemann to Michael Khodarkovsky, the Executive Director of the Grand Chess Tour, falsely accusing Niemann of cheating during their game and demanding that Niemann be immediately disqualified. Carlsen knew that Niemann’s sudden expulsion from a major professional chess tournament would send a clear, albeit false, message to the public that Niemann cheated.”
§ 82 “Carlsen rose to the challenge by first convincing Khodarkovsky to dramatically enhance the anti-cheating measures at the Sinquefield Cup, including by adding military-grade metal detection scans and a 15-minute tape delay on all broadcasts of tournament games. Carlsen knew that the sudden, unnecessary, and unexplained implementation of these new anti-cheating measures would be interpreted by the chess community and the public to mean that the Tournament Operators had a legitimate basis to believe that one or some of its players had cheated.”
§ 86 “By insisting that the Sinquefield Cup impose enhanced anti-cheating measures after his loss to Niemann, resigning from the tournament immediately thereafter, and then referencing a famous video of a soccer coach refraining from publicly accusing referees of misconduct, Carlsen conveyed a clear and unmistakable message to the public: that Niemann only beat Carlsen because Niemann cheated.”
§ 94 “Immediately after Carlsen announced his withdrawal from the Sinquefield Cup in a manner maliciously calculated to communicate to the world that Niemann had cheated during their match, Chess.com banned Niemann from its website, deleted Niemann’s slack account, and forbade Niemann from participating in any further Chess.com events.”
§ 95 “By design, this sudden ban, at the precise time that Carlsen accused Niemann of cheating against him, added instant credibility to Carlsen’s false allegations and suggested that they were true. Otherwise, there would be no reason for Chess.com to suddenly ban Niemann immediately after he defeated Carlsen.”
§ 96 “To bolster this unprecedented joint ban, which effectively blacklisted Niemann from professional chess, Nakamura leveraged his platform as Chess.com’s top streamer and credibility as a top chess player to engage in an all-out blitz of defamatory accusations to further confirm that Carlsen accused Niemann of cheating and to make it appear that those accusations are true.”
§ 97 “First, on September 5, 2022, Nakamura stated numerous times during one of his widely-viewed streaming videos that it was “very obvious” that Carlsen withdrew from the Sinquefield Cup because Niemann had cheated during their match:
‘Magnus did not withdraw because he was pissed at losing the game, let’s put it that way. I mean, I’ve played with Magnus for the last 20 years, he did not withdraw because he lost the game.’
‘I mean, its pretty obvious why Magnus withdrew … Its very obvious why he withdrew and that, there’s no doubt in my mind why he withdrew. No doubt. Zero doubt.… I already said it.… Magnus literally posted a video saying if I speak I’m in big trouble, yeah its very clear what he’s implying. There’s no doubt in my mind.’
‘We know why, we know why Magnus withdrew. There’s zero doubt. There’s zero doubt why he withdrew.’
‘If they’re on a 15-minute delay, that says it all. If they’re on a 15-minute delay, then we know the reason why Magnus withdrew from the event. Plain and simple. That’s all that I need to say. They were not on a delay for the first four rounds. Yeah, yeah, its that simple.’”
§ 103 “Just days later, Chess.com and Rensch piled on their own false accusations regarding Niemann’s online chess play on Chess.com. These false accusations were specifically designed to depict Niemann as a serial cheater, and thus reinforce Carlsen’s accusations that Niemann cheated against him “over the board” at the FIDE-sanctioned Sinquefield Cup.”
§ 105 “Chess.com and Rensch’s [ ] statement is false. Niemann did not lie about the ‘amount and seriousness of his cheating on Chess.com.’ In addition, Chess.com had not shared ‘detailed evidence with [Niemann] that contradicts his statements regarding the amount and seriousness of his cheating on Chess.com.’”
§ 110 “Moreover, given that, even according to Chess.com, Niemann had years earlier resolved Chess.com’s issues with Niemann’s use of an engine during certain recreational online games, and Niemann had never done so again, Chess.com’s sudden ban of Niemann from Chess.com purportedly based on “cheating on Chess.com” could not be a more obvious pretext for its collusion with Carlsen and Play Magnus to destroy Niemann’s reputation and blacklist him from professional chess.”
§ 113 “Carlsen chose to pour more gasoline on the fire he started by resigning from his match with Niemann after making one move, another unprecedented act for any top professional chess player. By doing so, Carlsen intentionally sent another clear message to the public: that Carlsen stood by his prior accusation that Niemann had cheated against him at the Sinquefield Cup, and that the public onslaught he unleashed against Niemann was truthful, justified, and should continue.”
§ 124 “On September 26, 2022, Carlsen issued a statement on his Twitter account explicitly accusing Niemann of cheating against him at the Sinquefield Cup.”
§ 127 “By stating that Carlsen does not “want to play against people that have cheated repeatedly in the past,” and that he is “not willing to play chess with Niemann,” Carlsen sent a clear message to the organizers and sponsors of all future chess tournaments and events that if they invite Niemann to those events, Carlsen—as the reigning World Champion and number-one ranked chess player in the world—will not participate.”
§ 163 “Despite the fact that Niemann did not cheat during his Sinquefield Cup match against Carlsen, or use an engine during online recreational matches more frequently than he has acknowledged, Defendants’ coordinated campaign of defamation and misinformation has nevertheless already had the desired effect of destroying Niemann’s reputation, career, and livelihood.”
§ 168 “In a typical year, Niemann could expect to participate in approximately 15 major chess tournaments, each of which would (i) generate approximately $5,000 to $15,000 in appearance fees for Niemann; (ii) give Niemann access to potential cash prizes ranging between approximately $5,000 to $100,000; and (iii) provide Niemann the opportunity to play matches against highly-rated competitors to increase his FIDE rating.”
§ 169 “By being excluded from these tournaments, Niemann has lost any opportunity to obtain any appearance fees or cash prizes, as well as the ability to improve his FIDE rating.”
The issue is whether the above facts, if true, are pled with sufficient specificity to establish a plausible case for defamation or tortious interference with business expectations.
Defamation
The elements of the causes of action are a substantive issue, so Missouri state law applies. Under state law, winning a defamation case requires the plaintiff to prove the defendant(s) published a false statement about the plaintiff with the requisite degree of fault, causing damage to the plaintiff’s reputation. (Overcast v. Billings Mut. Ins. Co., 11 S.W.3d 62, 70 (Mo. 2000) (en banc).) A “defamatory statement” must be “unequivocally so” and words “should be construed in their most innocent sense.” (Walker v. Kan. City Star Co., 406 S.W. 44, 51 (Mo. 1966).) “[I]f a statement is capable of two meanings (one defamatory and one nondefamatory), and can reasonably be construed in an innocent sense, the court must hold the statement nonactionable as a matter of law.” (Ampleman v. Schweppe, 972 S.W.2d 329, 333 (Mo. Ct. App. 1998).)
Magnus’s Statements
Statement #1: Niemann argues Carlsen’s withdrawal from the Sinquefield Cup was a communicative act intended to be an allegation of cheating against Niemann.
Carlsen knew full well that withdrawing in the middle of a prestigious, high-profile professional chess tournament like the Sinquefield Cup is virtually unheard of for any top-level chess player, let alone the reigning Chess World Champion widely considered to be the greatest chess player in history.
(Complaint at § 85.)
Statement #2: Niemann also points to Carlsen’s tweet of Jose’s infamous, “If I speak, I am in trouble” meme as context to support the interpretation Carlsen’s withdrawal amounted to an allegation Niemann cheated in their game.
By insisting that the Sinquefield Cup impose enhanced anti-cheating measures after his loss to Niemann, resigning from the tournament immediately thereafter, and then referencing a famous video of a soccer coach refraining from publicly accusing referees of misconduct, Carlsen conveyed a clear and unmistakable message to the public: that Niemann only beat Carlsen because Niemann cheated.
(Complaint at § 86.)
Statement #3: Similarly, Niemann argues Carlsen’s resignation after one move in their next game was a communicative act designed to send a “clear message to the public: that Carlsen stood by his prior accusation that Niemann had cheated against him at the Sinquefield Cup, and that the public onslaught he unleashed against Niemann was truthful, justified, and should continue.” (Complaint at § 113.) It is important context that Carlsen’s resignation occurred in the context of days of rampant speculation in the media and chess community Carlsen withdrawing had something to do with Niemann cheating.
Statement #4: Then, in response to a question about what his resignation meant, Carlsen said, “People can draw their own conclusions, and they certainly, certainly have.” (Complaint at § 116.) Niemann argues that, in context, the statement is arguably an endorsement of public speculation that Carlsen’s withdrawal and resignation were protests against Niemann cheating.
Statement #5: “Carlsen was privately disseminating his false cheating accusations to numerous members of the chess community, including chess commentator Lawrence Trent.” (Complaint at § 117.) (There is no further detail in the complaint on this point but it could be significant.)
Statement #6: Carlsen then said, “I have to say, I’m very impressed by Niemann’s play and I think his mentor Maxim Dlugy must be doing a great job.” The insinuation was Niemann is associated with other cheaters.
Maxim Dlugy is not Niemann’s coach or mentor and has no involvement whatsoever with Niemann’s training or preparation. Maxim Dlugy is a professional chess player who is rumored to have cheated in online games on Chess.com. Accordingly, for those familiar with chess, falsely associating Niemann’s play with Dlugy was a direct accusation that Maxim Dlugy somehow helped Niemann cheat against Carlsen at the Sinquefield Cup.
The reporter, well aware of the message Carlsen was sending, noted to Carlsen “you mentioned a name there, I think maybe a trainer of Hans Niemann, that he is doing a good job,” and asked if Carlsen could “say some more about that? Is that because you think [Dlugy is] helping Hans in the games?” Carlsen confirmed the accusation by laughing [Statement #7] and stating that he hoped “to say a little bit more after the tournament.” [Statement #8.]
(Complaint at §§ 119-120.)
Statement #9: In response to growing calls in the chess community for Carlsen to clarify his position, Carlsen released a written statement that affirmed his suspicions Niemann cheated online and possibly OTB in the Sinquefield Cup.
[Carlsen:] I believe that Niemann has cheated more – and more recently – than he has publicly admitted. His over the board progress has been unusual, and throughout our game in the Sinquefield Cup I had the impression that he wasn’t tense or even fully concentrating on the game in critical positions, while outplaying me as black in a way I think only a handful of players can do. This game contributed to changing my perspective.
(Complaint at § 124.)
Statements #10, 11 & 12: Carlsen’s written statement also said, “I don’t want to play against people that have cheated repeatedly in the past”; “Unfortunately, at this time I am limited in what I can say without explicit permission from Niemann to speak openly”; and “So far I have only been able to speak with my actions, and those actions have stated clearly that I am not willing to play chess with Niemann.” (Complaint at § 126.) (Emphasis added; original emphasis omitted.
Statement #12 is an admission Carlsen meant his withdrawal (Statement #1) and resignation (Statement #3) were meant to be statements about Niemann cheating. Moreover, Statements #4 and #7 show Carlsen explicitly approved the public speculation about whether he was protesting Niemann cheating. Further, Statements #5 and #6 show Carlsen reinforced that common understanding by spreading rumors Niemann is associated with other cheaters. Carlsen then specifically identified the Sinquefield Cup game as a possible instance of Niemann cheating in Statement #9.
If Carlsen had not made his written statement, he could have argued all of his statements were in response to Niemann’s online cheating, which was a known fact among some GMs. The innocent explanation would that Carlsen was taking a stand against cheating and using Niemann’s extensive record of online cheating to make the point: that chess needs to increase measures to ensure the security and fairness of the game. After all, publication of damaging truths is not actionable. But Carlsen’s admission his conduct was sending the message he is not willing to play chess with Niemann because he suspected Niemann of cheating OTB could preclude an innocent interpretation. In context, Carlsen’s repeated statements arguably are unequivocally intended to be an allegation Niemann cheated in the Sinquefield Cup game.
Actual Malice
Niemann is a top GM who actively seeks to advance his public profile in the chess community through streaming, playing streamed events, and giving interviews. He is therefore a limited public person under the NYT defamation standard and must prove Carlsen acted with actual malice. Actual malice is a showing Carlsen made his defamatory remarks with actual knowledge of falsity or in reckless disregard as to whether his statements were true or not. Niemann must allege there is sufficient evidence to sustain the conclusion Carlsen “in fact entertained serious doubts as to the truth of his publication.” (Glover v. Herald Co., 549 S.W.2d 858, 862 (Mo. 1977) (en banc).)
Niemann argues Carlsen knew he had “no legitimate basis to believe Niemann actually cheated against him.” (Complaint at § 12.) According to Niemann, Carlsen was “motivated solely to cause specific harm to Niemann rather than to protect any legitimate competitive interest.” (Complaint at § 195.) Niemann says the revenge was personally and professionally. Carlsen wanted revenge because Niemann taunted him after he “shattered Carlsen’s historic 53-game unbeaten streak and made it practically impossible for Carlsen to ever achieve a 2900 FIDE performance rating.” (Complaint at § 79.) The younger “chess prodigy” also defeated Carlsen with the black pieces, which “should have propelled Niemann’s career to the next level and allowed him to continue realizing his enormous potential as the next great American chess player.” (Complaint at § 77.) Carlsen’s attempt to “blacklist” Carlsen from competitive chess could be seen as an attempt to stifle an emerging competitor’s professional career. (Complaint at § 1.)
Niemann’s claim is Carlsen was “enraged” by Niemann because Niemann “dared to disrespect the ‘King of Chess’” by taunting Carlsen after brazenly winning with the black pieces and ending Carlsen’s hopes of achieving his professional goals for the time being. Carlsen did not have a legitimate basis to think Niemann cheated OTB, according to Niemann, as evidenced by Carlsen suggesting his accusation was based on a gut feeling his opponent was too relaxed. (“[Carlsen:] ‘I had the impression that [Niemann] wasn’t tense or even fully concentrating on the game in critical positions, while outplaying me as black in a way I think only a handful of players can do. This game contributed to changing my perspective.’”) (Complaint at § 124.) If Niemann’s story of an angry Carlsen making up accusations of cheating is to be believed, Carlsen either knew or didn’t care Niemann wasn’t cheating in their game OTB, but decided to accuse Niemann of cheating anyway to ruin his career.
Whether Niemann’s narrative is true or not would be for the jury to decide. What matters for the purposes of a motion to dismiss, where the plaintiff’s factual allegations are presumed to be true, is whether Niemann specifically alleged Carlsen acted with the requisite degree of fault: knowledge of falsity or reckless disregard for the truth of his statement Niemann cheated against him OTB, which Niemann did.
Damages
Unlike in most other states, Missouri law does not recognize the usual presumption of damages for defamation per se. (Nazeri v. Misssouri Valley College, 860 S.W.2d 303, 313 (Mo. 1993) (en banc).) As a result, Niemann must allege “impairment to reputation” to show damages. (Kenney v. Walmart Stores, Inc., 100 S.W.3d 809, 814 (Mo. 2003).) Niemann complained of various damage to his reputation:
Niemann’s reputation has been, and continues to be, significantly damaged by Defendants’ misconduct, including by: (i) losing his appearance fees for the Chess.com Global Championship, the Tata Steel Chess Tournament, and future chess tournaments; (ii) losing access to potential tournament prize funds at the Chess.com Global Championship, the Tata Steel Chess Tournament, and future chess tournaments; (iii) losing access to the vast majority of opportunities to increase his FIDE rating by playing matches against other top-rated players; (iv) having his reputation in the competitive chess industry and the public destroyed; (v) being prevented from obtaining lucrative endorsements, sponsorships, business and marketing opportunities; and (vi) 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.
(Complaint at § 176.)
Conclusion
Niemann’s allegations are specific enough to satisfy the heightened pleading standard in federal court with regards to at least one defendant on the defamation cause of action. The alleged facts make out a plausible claim that Carlsen defamed Niemann by maliciously alleging Niemann cheated against him OTB, which has already caused and will continue to cause damage to Niemann’s professional career and financial opportunities. Thus, we can be quite sure the complaint will survive a motion to dismiss. (We can also be sure a Rule 56 motion for summary judgment at this stage will fail because, if there is no dispute as to the alleged facts in the complaint, the facts suggest that Carlsen defamed Niemann, not that Carlsen is entitled to judgment as a matter of law.)
Discovery
It is of course impossible to predict what discovery will bring. But it is worth noting Niemann would be quite the fool to expose himself to discovery if he did in fact cheat against Carlsen. The two main theories of how Niemann could have cheated OTB are that, either, Niemann receives cues from someone else in the playing hall, or, Niemann has an electronic device on or around his person that is linked to a remote chess engine. Unless Niemann has written code to remotely scrape a live video feed of his matches, input the moves into a chess engine on a remote computer, and send the recommended moves to Niemann’s device, which seems highly unlikely and, in any event, would be discoverable with forensic analysis of Niemann’s computers, both theories require a second person to be involved in the cheating. Carlsen seemed to give credence to the idea of an accomplice when he dropped GM Dlugy’s name in connection with Niemann. (“I have to say, I’m very impressed by Niemann’s play and I think his mentor Maxim Dlugy must be doing a great job.”) (Complaint at § 118.)
Any communications between Niemann and his accomplice would be discoverable, unless they only discussed how to cheat in person. If the method of cheating was by giving signals to Niemann in the playing hall, that strategy would be easily detected by discovery of surveillance and broadcast footage. The most likely theory is cheating by sneaking an electronic device into the playing hall past security, before the anti-cheating measures tightened with metal detectors. The idea is not completely implausible at first, but any financial records of Niemann purchasing the device or parts to build the device, and any records of electronic communication regarding purchasing or building a device, would be discoverable.
But let’s just say, for the sake of argument, Niemann devised a brilliant, premeditated plan to execute a one-time cheat against Carlsen OTB at the Sinquefield Cup. Niemann acquired a device from a friend or bought it in cash, without engaging in electronic communication, and then had an accomplice or some automated system send him engine moves while he was playing Carlsen, before destroying or disposing of all the hardware he used to cheat — even in that event, Niemann cannot be sure to avoid unfavorable discovery because his accomplice(s) could be untrustworthy. If Niemann did in fact cheat against Carlsen, filing a lawsuit now would surely be a losing gambit.
From the defendants’ perspective, discovery will bring forensic analysis of Niemann’s computer(s) to ascertain the extent of his online cheating on chess.com and other platforms. It is worth noting Niemann denies chess.com’s allegation that he cheated more extensively on their platform than he has previously admitted. (“Chess.com’s Defamatory Report falsely claims that Niemann ‘cheated much more than he has publicly admitted to, including in many prize events, at least 25 streamed games, and 100+ rated games on Chess.com, as recently as when he was 17 years old.’”) (Complaint at § 152.) Evidence of frequent and recent online cheating by Niemann online could strengthen the defendants’ position in settlement and possibly at trial.
One of Niemann’s primary goals in discovery will be to ascertain the extent of the communication, if any, between Carlsen, Nakamura, Rensch, and other chess.com officials, or any intermediaries, at the time of the allegations and during the subsequent fallout. Niemann’s complaint is built on a narrative the defendants worked in concert to amplify and echo one another’s false claims. Niemann accuses chess.com of “tactically” releasing their press release on September 8th to bolster Carlsen’s accusations. (Id.) He says there is a “coordinated campaign of defamation and misinformation” against him. (Complaint at § 163.) But if there is no communication between the defendants on the cheating issue at the time of the underlying events, then Niemann will struggle to show the defendants acted in concert.
Tactics
It is also a little premature to discuss evidentiary tactics, as we have not yet seen the result of discovery and what evidence is in play. But we can make two observations. First, Niemann could struggle to discover evidence of Carlsen’s coordination with chess.com due to attorney-client privilege. Carlsen’s, Play Magnus’s, and chess.com’s attorneys were no doubt already speaking to each other due to the ongoing merger. Those attorneys would have been sensitive to any potential litigation against the parties to the merger as lawsuits hold up deals. It is possible Carlsen customarily communicated with chess.com through his attorneys or directly with Rensch — we do not know. But for what it’s worth, it seems to me as if Carlsen’s initial reaction, namely withdrawing from the tournament and then resigning in the next game, were his own doing, and that his counsel had stepped in by the time Carlsen made his written statement.
Second, the elephant in the room is Hans’s alleged history of prior cheating. A preliminary question is whether chess.com has any further evidence than what they put in their public report. The report itself concluded more than 100 games of Niemann were suspicious based on various metrics and highlighted 10 games in particular. However, the report stopped short of concluding Niemann cheated in any one game or on any one move. Nor did the report highlight particular moves that warranted further independent analysis. Further, we do not know whether chess.com’s ability to monitor a player’s tabbing behavior (one of the metrics used to detect cheating) includes the detail of what the player was doing in their open tab. Niemann could have had chess.com open in one tab and an engine in another, or he could have been browsing the internet while playing a game of chess. Moreover, other top GMs have analyzed the 10 games highlighted by the report as suspicious, finding some games to be completely normal and others to have one or two inspired moves. All of this is to say that the extent of Niemann’s online cheating is unknown at this point. Chess.com and Carlsen say Niemann cheated more frequently and more recently than Niemann has admitted, but Niemann has denied those claims in his complaint.
In any event, let us presume chess.com has or discovers slam dunk evidence Niemann cheated online. Federal Rule of Evidence (“FRE”) 404(a)(1) prohibits the use of character evidence to make the argument Niemann has a propensity to cheat online, and so therefore Niemann probably cheated against Carlsen. “Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.” However, Niemann’s online cheating was an open secret against some in the chess community. It is possible Carlsen knew of Niemann’s online cheating at the time of their OTB game either independently or as a result of his relationship with chess.com. (Chess.com has denied sharing their information on Niemann’s games with Carlsen.) Carlsen could seek to introduce the evidence of Niemann’s online cheating to argue Carlsen had reason to be suspicious while playing Niemann. Niemann will argue Carlsen cannot get around a rule against using character evidence to make propensity arguments, by introducing the evidence for practically the same purpose. “Evidence of any other crime, wrong, or act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.” (FRE 404(b)(1).) There is too thin a line between offering the evidence to show Niemann cheated in accordance with his alleged character and offering it to show Carlsen thought Niemann might have cheated because of his alleged character. If the defendants do have proof that Niemann cheated online more than he has admitted, however, then it could be possible for Carlsen to introduce Niemann’s prior bad acts indirectly through impeachment to show Niemann was lying when he made his admission to cheating online at the ages of 12 and 16 and denied further wrongdoing. The credibility of a witness is always at issue, and if the defendants can prove Niemann’s denial was false, I expect Niemann’s prior online cheating to come in on cross-examination.
FRE 404(b)(2) is an exemption to the exclusion of character evidence, which allows evidence to be used for a purpose other than making a propensity argument, such as to show “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” (The “MIMIC” exemption.) Motions in limine to suppress Niemann’s prior bad acts as inadmissible character evidence might focus on the similarities and differences between online and OTB chess. Consider comparing the opportunity to cheat OTB compared with online. Cheating online is as easy as opening up a free chess engine in a second tab on one’s computer browser while playing an online game. The opportunity to cheat is clear and present, with the game operating primarily on an honor system. Conversely, the opportunity to cheat in an OTB tournament at the Sinquefield Cup is less clear cut. There is more security, significant consequences for getting caught, and greater difficulty to successfully cheating. For similar reasons, a judge might not allow Niemann’s prior bad acts on the basis Niemann’s preparation or planning in online cheating is related to cheating OTB. But a judge could find Niemann’s motivation to cheat online was sufficiently similar to his motivation to cheat OTB. Niemann has admitted he cheated online to gain rating points so he could play top players. Playing top players online would not only be good practice for Niemann, but would also boost Niemann’s stature and streaming revenues, and increase the chances of him gaining admission to lucrative tournaments. Carlsen can argue Niemann has a financial and professional motivation to cheat OTB, just the same as when cheating online.
Niemann’s complaint attempts to head-off this argument by distinguishing official FIDE ratings and tournaments, which determine professional standings, from unofficial chess.com online ratings and games, which have no impact on FIDE ratings and rankings. (Complaint at §§ 29-30, 35-41.) “[A] professional chess player’s performance on chess.com has absolutely no effect on their professional rankings, qualification for official FIDE-sanctioned events, or official records or statistics.” ( Complaint at § 41.) Niemann might argue his motivation to cheat online is not at all the same as his motivation would be to cheat OTB. Getting caught cheating OTB would end Niemann’s professional career in disgrace, while cheating online is not uncommon amongst titled players, and hitherto has been treated with much more leniency. Niemann can also argue he no longer has any professional incentive to cheat; even if he cheated to breakthrough into the ranks of super-GMs online and used the competition for practice, he proved the improvements to his game OTB. Now that Niemann is a top 50 player who is regularly invited to major tournaments, any further benefits to cheating are far outweighed by the risk of getting caught.
The bottom line though is Carlsen will argue Niemann has a financial motivation to cheat whether it is OTB or online. The rewards may come in different forms, but if Carlsen and chess.com can prove Niemann cheated online for financial gain, they have a good argument the same motivation applies to games Niemann plays OTB.
Niemann can also argue in the alternative that, under FRE 403, the probative value of any character evidence is substantially outweighed by the danger of prejudice to his case because the jury will confuse the issues of online and OTB cheating. If the jury hears that Niemann cheated online regularly, they may come to the conclusion that, “Once a cheat, always a cheat,” which could result to a judgment based exactly on the kind of propensity reasoning FRE 404(b)(1) prohibits. Carlsen again though may have the better argument that the jury can hear about the online cheating under MIMIC if the evidence comes with a limiting instruction from the judge warning the jury not to infer Niemann’s online cheating means he was more likely to cheat against Magnus OTB. (FRE 105.)
In short, while the extent of Niemann’s online cheating is disputed by the parties, in the event there is evidence Niemann has a history of online cheating, the evidence will likely be admissible only for the limited purpose of showing Niemann had a financial motivation to cheat or on cross-examination to show Niemann lied about the frequency or duration of his online cheating.
The Merits
The first point to make is, again, that it is not possible to judge the merits properly without discovery and full pleadings. Depending on the outcome of discovery, as we have discussed, Niemann may or may not be able to prove the defendants made an agreement to coordinate their statements. Niemann needs to provide evidence of such an agreement to prove a civil conspiracy.
If Niemann can prove conspiracy, then each defendant is liable for any defamatory statements their co-conspirators make. For example, if there is a conspiracy, a jury could find Carlsen’s own conduct and statements were mere expressions of opinion and not actionable, but that Nakamura’s statements constituted defamation, or, alternatively, that chess.com’s report on Niemann’s online cheating was defamatory, in which case Carlsen would still be held liable.
Defamation
Suffice it to say the complaint includes a litany of allegedly defamatory statements by Nakamura, Rensch, and chess.com. However, if Niemann loses on the conspiracy cause of action, it becomes less obvious where liability lies.
Chess.com & Rensch’s Statements
Chess.com’s report, while arguably a biased hit job on Niemann, stopped well short of accusing Niemann of cheating OTB. Nor does Rensch’s statement that “information [ ] contradicts [Niemann’s] statements regarding the amount and seriousness of his cheating on chess.com” concern cheating OTB. Without conspiracy, Niemann’s argument the statements were made to buttress Carlsen’s accusation about OTB cheating likely fails, meaning chess.com and Rensch could escape liability if their statements about Niemann cheating online more than he admitted are true.
Nakamura’s Statements
Nakamura’s statements are more problematic. Despite his best efforts to rely on insinuation, Nakamura’s pattern of commentary clearly establishes he thinks that Carlsen thinks Niemann cheated against Carlsen OTB:
“I mean, its pretty obvious why Magnus withdrew . . . It’s very obvious why he withdrew and that, there’s no doubt in my mind why he withdrew. No doubt. Zero doubt. . . . There’s no doubt in my mind.” (Complaint at § 97(b).)
“We know why, we know why Magnus withdrew. There’s zero doubt. There’s zero doubt why he withdrew.” (Complaint at § 97(c).)
“If they’re on a 15-minute delay, then we know the reason why Magnus withdrew from the event. Plain and simple. That’s all that I need to say. They were not on a delay for the first four rounds. Yeah, yeah, its that simple.” (Complaint at § 97(c).)
“[I]t’s very clear why Magnus is name-dropping Dlugy. There is no doubt in anybody’s mind . . . The reason he name-dropped is because Dlugy has been caught doing something wrong in . . . tournaments on chess.com.” (Complaint at § 122.)
“As we know now, Hans Niemann did go to Max Dlugy’s academy in NYC for a short while.” (Complaint at § 123.)
“You know what the million dollar question is: who is the student.” (Complaint at § 134.)
In other words, Nakamura “knew” Carlsen withdrew because Carlsen thought Niemann cheated OTB; Nakamura knew Carlsen mention Dlugy because it implied Niemann cheated with Dlugy; and then, according to Niemann, Nakamura falsely alleged Niemann went to Dlugy’s academy, before going on to imply Niemann was the student who helped Dlugy cheat. It is not impossible a jury could find Nakamura liable for defamation if the allegation Niemann went to Dlugy’s academy is false.
Defenses
In summary, Niemann has a valid if not compelling argument against Carlsen and Nakamura. It is important to bear in mind Niemann only has to prove each element of defamation by a preponderance of the evidence, meaning the question for the jury is whether it is more likely than not Niemann proved each element of his defamation claim.
In most states, the plaintiff has the burden to prove a defamatory statement by a preponderance of the evidence, and the burden of proof then shifts to the defendant to show a valid defense by the same preponderance standard. (Burdens of proof are a substantive issue where a federal court applies state law.)
Substantial Truth
At common law, truth was a complete defense to defamation, where the burden was on the defendant to prove truth. Missouri law currently requires public officials, public figures, and private persons who sue media defendants to prove falsity by a preponderance of the evidence. (Anton v. St. Louis Suburban Newspapers, Inc., 598 S.W.2d 493, 498 (Mo. Ct. App. 1980).) It is not exactly clear whether a limited purpose public person, like Niemann, suing a non-media corporation and streamer (who arguably was engaged in journalism at the time of the alleged defamation) would have the burden to prove falsity under Anton, or whether the common law rule giving the defendants the burden to prove truth would apply, but, the bottom line is that one side has to persuade a jury their story is more believable than the other side’s story.
With regards to Carlsen’s allegations, no doubt a jury could be persuaded either way by dueling experts. But the low burden of persuasion could be in Niemann’s favor given the widespread expert consensus he did not cheat in his game OTB against Carlsen. In addition to expert evidence, Niemann can appeal to the jury’s common sense that Niemann passed through tournament security with no problems and the event organizers had no issue with his participation. Carlsen’s problem is proving a negative: if he does not have proof Niemann cheated; doesn’t know how Niemann could have cheated; and does not find any evidence in discovery that Niemann did cheat, how is Carlsen going to prove Niemann cheated OTB against him? A hunch based on Niemann’s body language is not going to cut it; if that is all Carlsen has to go on, then Niemann’s case for reckless disregard for the truth is strong and Carlsen’s substantial truth defense is weak.
With regards to Nakamura’s statements, the truth or falsity of whether Niemann went to Dlugy’s academy and helped Dlugy cheat is a separate factual question with its own answer. If Niemann never studied at the academy, Nakamura cannot argue substantial truth as a defense.
Opinion
Some protected opinions cannot be the basis of a defamation claim. Under Missouri law, the test for whether a statement is a protected opinion is “whether a reasonable factfinder could conclude that the statement implies an an assertion of objective fact. . . . The issue of falsity relates to the defamatory facts implied by a statement — in other words, whether the underlying statement about the plaintiff is demonstrably false.” (Nazeri v. Missouri Valley College, 860 S.W.2d 303, 314 (Mo. 1993) (en banc).)
Carlsen’s withdrawal and resignation are arguably statements implying the assertion Niemann cheated in the Sinquefield Cup game. Niemann’s complaint shows many could-be jurors reasonably concluded Carlsen’s conduct implied Niemann cheated:
“As Carlsen intended, the chess world and the public at large received Carlsen’s defamatory message loud and clear. On September 6, 2022, worldchess.com posted an article titled ‘Did Hans Niemann Actually Cheat? All the Info So Far,’ which stated, ‘Yesterday, Magnus Carlsen withdrew from the Sinquefield Cup 2022 after his loss to Hans Niemann in Round 3. Multiple tweets, streams, comments, and security checks later, the accusation of Niemann cheating is pretty obvious!’” (Complaint at § 87.)
“On September 7, 2022, Slate posted an article titled ‘The Chess World is absolutely losing it over cheating allegations after massive upset,’ stating that Carlsen’s implications rocked the chess community, which quickly began speculating online that Niemann must have cheated, despite no evidence of foul play being presented from Carlsen or event organizers.” (Complaint at § 88.)
“Also on September 7, 2022, ABC News Australia released an article stating that, ‘Carlsen announced his withdrawal via a cryptic tweet on Tuesday morning (AEST) which was interpreted by many commentators – including leading American grandmaster Hikaru Nakamura – as alluding to foul play.’” (Complaint at § 89.)
“As the Daily News wrote on September 19, 2022, ‘Carlsen, the world’s best player for over a decade, abruptly quit an online match amid allegations that his opponent, American grandmaster Hans Niemann, is a devious cheat.’” (Complaint at § 114.)
“In an interview on September 21, 2022, Carlsen was asked about the meaning behind his abrupt resignation against Niemann in the Julius Baer Generation Cup. Carlsen laughed and declined to comment, but then boasted ‘people can draw their own conclusions, and they certainly, certainly have.’” (Complaint at § 116.)
Nonetheless, Carlsen can argue he did not directly accuse Niemann of cheating OTB, and that his written statement is merely his opinion that Niemann might have been cheating at the Sinquefield Cup. In general, when a statement is based on disclosed facts, a reasonable opinion based on those facts will not be actionable, even if the opinion is factually wrong. Carlsen can argue the disclosed facts — Carlsen’s perception of Niemann’s body language; Niemann’s unusual strong progress in chess; Niemann’s strong play over the board with the black pieces against Carlsen; and possibly Carlsen’s prior knowledge of Niemann’s online cheating — might lead a reasonable person to suspect their opponent was cheating.
Whether it is reasonable to accuse your opponent of cheating on little more than a hunch is usually a question for the jury. In Missouri though, statements that are proceeded by cautionary phrases like “it is my position” or “it is my belief” are, as a matter of law, not actionable. (Pape v. Reither, 918 S.W.2d 376, 380 (Mo. Ct. App. 1996).) Carlsen’s statement, “I believe that Niemann has cheated more — and more recently — than he has publicly admitted,” is therefore not actionable as a matter of law. (Emphasis added.)
Carlsen goes on to say, “[Niemann’s] over the board progress has been unusual, and throughout our game in the Sinquefield Cup I had the impression that he wasn’t tense or even fully concentrating on the game in critical positions, while outplaying me as black in a way I think only a hand. This game contributed to changing my perspective.” Carlsen will argue he is again not making a direct assertion Niemann cheated OTB in these remarks. Further, his statement about his perspective changing is vague and ambiguous. Is Carlsen talking about his perspective on chess? On cheating? On cheating in chess? On whether Niemann cheated against him? It’s not clear enough to be defamatory.
But Niemann can counter by arguing that, while Carlsen may have later couched his statements in the legal language of opinion, two of his first three statements on the controversy — withdrawing and resigning — amounted to an assertion Niemann cheated OTB in Missouri. Those assertions were not made after Carlsen’s lawyer inserted cautionary language in Carlsen’s statements, nor were they accompanied with any explanation of the underlying facts to substantiate Carlsen’s allegation. It was only after the potential for litigation arose that Carlsen stopped fanning the flames of speculation about Niemann cheating against him. Carlsen might explain away the withdrawing from the tournament as a decision made in the heat of the moment for various reasons, but resigning after several days of rampant speculation over Niemann cheating is arguably defamatory, especially considering Carlsen said people had the right idea about what his actions meant. If Carlsen is found liable, I suspect it will be on the basis of his resignation combined with his statement immediately thereafter. (“People can draw their own conclusions, and they certainly, certainly have.”) In context, the statement is clearly meant as an accusation of cheating. And, at first, it was a bare accusation without any evidence or basis, before Carlsen’s lawyers got involved. In my view, it’s likely Carlsen’s passive-aggressive reaction to the situation is his own childish immaturity and was not counsel’s idea. By the time Carlsen’s lawyers started writing his statements, the damage might already have been done.
Yet even Carlsen’s early conduct and related statements could be “too imprecise” to support the interpretation Carlsen was accusing Niemann of cheating in the Sinquefield Cup game specifically. (Henry v. Halliburton, 690 S.W.2d 775, 789 (Mo. 1985) (en banc).) Since Carlsen did not use language, there is arguably no specific meaning to his conduct. Not only is it hard to prove Carlsen’s statements false, it is hard to identify exactly what needs to be proven!
As for Nakamura, again, his statements are more problematic. Instead of clearly stating the basis for his opinions, Niemann argues Nakamura suggested he had non-public and special knowledge of the situation. “I heard about this directly from someone in Saint Louis, one of the players during the rapid and blitz, who said that they’re basically certain that Hans has done something, and then Magnus withdraws from the tournament. So its . . . very, very strange.” (Complaint at § 98(b).) (Emphasis added.) Combined with Nakamura’s repeated comments he knew the reason Carlsen withdrew was because of concerns over cheating, Nakamura is essentially reporting hearsay that Niemann had “done something” to cause Carlsen to withdraw, like cheat. A statement of opinion based on undisclosed facts is a mixed opinion, which can be actionable where the underlying facts, if disclosed, would be defamatory. If someone at the tournament told Nakamura Hans might have cheated, and then Nakamura repeated that statement to his audience, Nakamura may not have as strong an opinion defense as Carlsen.
Conclusion
Niemann’s claim is likely to survive a motion to dismiss and reach discovery on the defamation claim. The complaint is a little thin on facts to show Carlsen et al. intentionally interfered in Niemann’s business relationships, so that may be the subject of an amended complaint once the defendant’s answer. While there are strong arguments on both sides, pending further evidence that will change the strength of the parties’ positions, a preliminary analysis suggests, first, that chess.com and Rensch’s statements are not related to the core allegation of defamation OTB, so there may be no liability for them; second, that Carlsen has a good opinion defense, but it is far from perfect given the number of statements he has made and the nature of his making them over time; and, third, that Nakamura may be liable for defamation, because his statements about Dlugy and what his contact at the Sinquefield Cup said could be false and potentially defamatory in context. But if Niemann’s narrative is anything close to the truth, and it’s not just his attorneys’ spin, and this is all some big conspiracy between chess’s powerbrokers to shut him down . . . well, that would be the bigger scandal than a couple super-GMs piling on a disrespectful upstart they simply do not like.