As has been widely reported over the last few days, the latest chapter in the Phil Ivey edge-sorting saga involves a counter-suit by Ivey against the Borgata Hotel Casino & Spa. The original case dates back to April 2014, when the Borgata sued Ivey to reclaim $9.6 million after he beat the house in mini-baccarat using a technique known as edge-sorting, and with the assistance of Cheung Yin Sun, the so-called “Queen of Sorts” for her mastery of the technique.

Ivey has already lost a similar lawsuit against Crockfords Casino in London, although that decision is under appeal. In both cases, the casinos claim that Ivey and his accomplice had identified decks of cards with manufacturing flaws in order to pull off their win, but the countersuit alleges that the deck used by the Borgata was within the manufacturer’s cutting tolerances and therefore not technically flawed, and that the Borgata destroyed the decks in question in order to prevent Ivey from proving this.

All of this raises interesting legal, ethical and philosophical questions about what is and isn’t cheating. Such questions come up all the time both in poker, when it comes to angle-shooting, and in professional sports when it comes to things like embellishing fouls or deliberately committing an infraction because the penalty is less serious than the consequences for not doing so. That said, the closest analogy I can think of for this particular case comes neither from poker nor conventional sports, but from the emerging world of eSports.

Two sets of laws

eSports is a very new phenomenon, and as such, is bound to produce a whole bunch of new and unanticipated questions. To some extent, one can expect that real-world notions of sportsmanship will extend into the digital realm, but there are important differences as well.

One such difference is a blurring of the distinctions between the rules of a game and its environment. Physical sports are played according to two sets of rules: those written down on paper which describe the game’s objectives and permitted behaviors, and the laws of physics and human biology. Pushing the boundaries of the latter is important and an implicit part of the game; examples include high-tech exercise equipment and techniques to produce better humans, and engineering efforts to produce better golf balls and clubs. Explicit limitations often have to be imposed – certain drugs outlawed, minimum and maximum dimensions and weights for given pieces of equipment and so on – but it’s expected that players and teams will seek any advantage they can find within those constraints.

When it comes to eSports, however, both sets of rules are determined by the code which is running on the computers in question. Modifying that code to gain an advantage is what’s meant by hacking, and that’s unambiguously cheating… but what happens when one competitor or team discovers a pre-existing glitch in the code which can be used to their advantage? After all, given the complexity of modern computer games, it’s inevitable that players discover features and techniques which weren’t anticipated by the developers of the game. In physical sports, breaking the written rules is cheating, but breaking the laws of physics is simply impossible; when it comes to games – both real-world and digital, it’s a lot more complicated, because the game environment itself is man-made and therefore likely to contain flaws.

Fnatic’s map-glitching scandal

This exact ethical problem came about last year, in the world’s largest Counter-Strike tournament to date at a Swedish eSports event called Dreamhack. Counter-Strike is a team-based, first-person shooter game and has been one of the most popular eSports since eSports became a thing. Because the first-person shooter genre takes a lot of its cues from real-world physics – simulating gravity, acceleration and so forth – players and fans alike naturally have much stronger feelings about how things are “supposed” to work than in more abstract or fantastical eSports, like StarCraft.

What happened at Dreamhack was that Swedish team Fnatic was facing the French team LDLC and not doing very well at first. They were down nine games when suddenly they started winning – ten straight, in fact, to win the series. What they did to accomplish that was to combine a known and accepted (but probably unintended) feature known as “boosting” with a previously unknown-to-others glitch in the specific map the battle was being played on.

Boosting, in a nutshell, involves jumping onto the heads of other players on one’s own team and, from there, to higher points on the map, often places which would otherwise be inaccessible. You know that it’s a glitch because it looks silly, but it’s acceptable because it provides only a modest advantage and actually adds some tactical interest to the game. It’s also justifiable through analogy with the physical world, as suggested by its name; it’s entirely possible for people in the real world to give one another a boost up to otherwise unreachable places, even if it’s not usually done by jumping onto one another’s heads.

The trouble with what Fnatic did, however, was that they had found an unassailable sniping spot with a near perfect view of the entire map, accessible only through boosting and unknown to other teams. Multiplayer maps for modern first-person shooters are scrupulously designed so that there are no such positions of unreasonable advantage, or at least they’re supposed to be. It was the combination of this flaw in the map design and the fact that it was reached by way of an unintended feature which caused the community to cry foul. The match was annulled and originally scheduled to be replayed from scratch, but ultimately, Fnatic themselves threw in the towel and ceded the victory to LDLC.

What does this have to do with Ivey?

Ivey’s case is similar to Fnatic’s because it falls into a gray area in between legally exploitation of a discovered design flaw, and outright cheating.

At one extreme, consider counting cards in blackjack. It might get you thrown out of a casino, but it’s not cheating – legally or, in my opinion, ethically. Furthermore, ruling against card-counting in blackjack would be as philosophically absurd as having a chess tournament in which players are forbidden from thinking more than three moves in advance; the point of a game is to win, so how can you expect players not to play as well as they can? If the house wants to avoid being exploited by card-counting, they can and do simply refuse to serve known card-counters. If they don’t want to do that, then they can offer only multi-deck blackjack. Likewise, if a Counter-Strike map is discovered to contain a conventionally accessible but overly advantageous sniping spot, it can simply be redesigned or retired from competitive play, but you can’t leave it in and ask players not to use it.

At the other extreme is outright card-marking in casino games or hacking in eSports. These are things which everyone rightfully considers to be cheating.

In Fnatic’s case, the problem arose through a combination of factors which were outside of the rules of the game as written: a glitchy but ordinarily inaccessible part of the map, and the unintended but accepted technique of boosting. Similarly, in Ivey’s case, he was able to beat the casinos through a combination of the environmental factor of imperfect card manufacturing, and his unconventional request to rotate certain cards, which the casinos nonetheless decided to allow.

The trouble with “fairness”

I expect that most people feel, intuitively, that both Ivey and Fnatic were behaving unfairly, and don’t get me wrong, I feel the same way. The reason it feels this way is because in both cases, victory came about by means we didn’t previously consider to be “part of the game.” Some of us might be pulling for Ivey a little bit because we like humans more than we like casinos, but if you imagine someone pulling an equivalent trick in a card game with friends, you’d probably disapprove. As such, it seems at first glance that justice has been done in both Fnatic’s case and the first Ivey lawsuit, which he lost.

But the trouble with fairness as a principle on which to base decisions – whether legal or sporting – is that it’s impossible to define precisely. Everyone has a slightly different sense of what it means, both in the real world and in the smaller paradigms of various sports and games.

The fact that Fnatic ended up resigning from the tournament suggests that they ultimately agreed that their actions had been unfair, though whether they thought so at the time or were subsequently convinced by public response is a separate question. Ivey, on the other hand, has readily admitted to the basic facts of his case, but continues to deny adamantly that his actions were unfair or could be considered cheating. That’s unsurprising, given the amount of money on the line, but the judge in the Crockfords suit was in fact convinced that although it could legally be considered cheating, Ivey himself was sincere in his beliefs that he’d done nothing wrong.

However, it doesn’t really matter whether you believe that Ivey is sincere, or think that Fnatic did or didn’t feel they were cheating at the time they exploited the glitch in question. Whatever the reality in these cases, the fact remains that if we’re going on abstract notions of fairness and “spirit of the game,” there will always be potential for a person to be following both their own moral compass and the rules of a game as written, yet end up suffering consequences based on someone else’s notions of fairness. That in itself would conflict with some notions of fairness.

Moreover, appealing to ethical intuition in this way after the fact is a deflection of the responsibility of game designers and developers, casinos, sports leagues, etc. to take measures to ensure the integrity of their games. When the blame and consequences fall on the players exploiting flaws, rather than on the people ultimately responsible for the existence of those flaws, there’s considerably less incentive to take sufficient precautions to avoid such things happening in the future. Again, we can’t expect people not to do whatever they can within the rules to win – what we can expect is a game in which there aren’t easy routes to victory which violate our notions of fairness.

In other words, “don’t hate the player, hate the game.”

Alex Weldon (@benefactumgames) is a freelance writer, game designer and semipro poker player from Montreal, Quebec, Canada.