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Fact Instead Of Fiction: A True Report on the Denver Regional
(Page of 7)

During Match #4 of the final Swiss Teams of last May’s Rocky Mountain Regional, the pairs from each of two teams sat the same direction. The teams consisted of Jan Janitschke (Captain), Mark Lair, Marilyn Ebers, and Marty Seligman; and Greg Hinze (Captain), Dana Hastings, Dan Morse, Kay Enfield, David Grainger and Cameron Doner. Approximately one month later, the ACBL served Lair and each of the other team members with a complaint brought before the Ethical Oversight Committee [“EOC”] alleging ethics offenses for violation of CDR 3.13 [Knowingly Submitting False Information to a Tournament Official] and Appendix B-E7(b) [Intentionally Submit[ting] a False Result of a Hand, Round or Match]. The essential facts charged were that all the players of each team:

“(5) … knowingly agreed to submit a false result for the match instead of informing the Tournament Director that each team had sat in the wrong direction during the match, and thus no valid result could be obtained.”

The complaint also alleged less serious rules violations grounded in the same circumstances, none of which involved ethical violations or intentional misconduct. Prior to receiving the complaint, no one had spoken to Lair about the incident, and he had been unaware that any ethics, intentional misconduct or other issues were being considered against him or any others relating to the above match. Coming out of the blue, the charges shook Lair to his core.

Had the facts alleged been true, they would have been of great concern to the bridge community. But, they were not. Prior to last month’s EOC hearing, the ACBL voluntarily dismissed all charges of unethical behavior or intentional misconduct against Janitschke, Hinze, Enfield, Eber, Seligman and Grainger. In addition, in September, the EOC granted Hastings’s Summary Judgment Motion for an order dismissing all charges against her. Following a three-day hearing, the EOC ended the inquiry with a finding that there had not been any intentional misconduct and for that reason dismissed the ethics charges against all of the remaining team members. These actions left two lesser rules violations outstanding against Lair and Morse and one against Doner based on their failure to call a director before Captain Hinze submitted a report slip.

CORRECTING THE RECORD

As the lawyer who has represented Lair before the EOC since early July, I have personal knowledge of all the evidence that was presented to the EOC. That evidence stands in stark contrast to the speculation and gossip posted by others. To date, I have not spoken out because both Lair and I believed that public comment might compromise the EOC’s deliberation process and any appeals that might follow. Now, that the EOC has rendered its verdict and the time for filing appeals has expired, I write to inform the community of what happened in Denver and in the proceedings that followed. As you will see, this article presents a far different account than do previously published posts, many of which were grounded in false and disparaging information gleaned from second and third-hand hearsay.

Although Lair has given me permission to publish this article, the content is entirely my own. The events I recount are consistent with the testimony of the two directors who appeared before the EOC and all the charged parties, save in minor respects with Grainger’s. Because in one instance Grainger’s conduct differed from the others’, it will be addressed separately.

THE PLAYERS LEARN THAT THEIR PAIRS SAT IN THE SAME DIRECTION

For match #4, Lair and Seligman went to play East/West at the other table against Morse and Grainger, leaving Janistschke and Ebers to sit North/South. Lair and Seligman had a good match, and returned to their table thinking they were up about two game swings. In short order, it became apparent that their pairs had played in the same direction. Lair doesn’t recall specifically what his team members said at that time but he remembers that everyone felt annoyed. His immediate thought was that the match would be scored as a tie.

Consistent with his practice that day [the team’s captain was experiencing health-related challenges], Lair got up and went over to compare with the other team. Along the way, he ran into Morse. Since the teams were late and the directors were pressing to have all report slips turned in, the conversation was short – perhaps 20 seconds. Lair recalls that Morse confirmed his team’s pairs had sat the same direction and that he shared Lair’s view that the match would be scored as a tie. In addition, Lair vaguely remembers expressing concern that the teams might be subject to a procedural penalty. When he left, Lair understood that Morse’s team [Hinze] would fill out and turn in the score slip, and report that the pairs had sat the same direction. On the way to returning to his team’s table, Lair stopped by the Hinze team’s table to commiserate about their joint misfortune.

Lair remembers little about his conversation with other members of the Hinze team except that they were standing in separate groups and the conversation was brief. Doner and Enfield testified that they were standing by themselves – embarrassed - while Morse and Grainger stood several feet away. Enfield attempted to call a director but the call was aborted because with play having been completed it seemed the only thing left to do was to report what had happened. Grainger recalls saying that he thought the match would be scored as a tie to which Lair and Morse commented that they thought so as well. For his part, Morse remembers none of the conversation, which is not surprising since he was headed to the bathroom and, as all the witnesses agreed, the entire exchange took 30 seconds or less.

Like Lair, none of the players had read the Swiss Teams General Conditions of Contest and none knew about the “double-blitz” rule. The rule provides in situations like this that each team receives zero victory points. All the players on both teams emphatically denied “conspiring” or “colluding” in any way to try to hide what had happened from the directors. To the contrary, each player testified that they expected that when the match was reported, the directors would be informed that the teams’ pairs had sat in the same direction. In fact, during the turn-around, the directors were told what had happened, and prior to the start of the next round the match score was changed to accord with the “double blitz” rule. However, before that was done, an innocent error set in motion what eventually became a hugely overblown bridge prosecution.

Let me digress here to respond to a query raised several times on Bridge Winners threads: Is it credible that none of the experienced, professional players on these two teams were unaware of the “double blitz” rule? That obscure rule appears on page 3 of the 4 page Swiss Teams General Conditions of Contest. As a general practice, those Conditions are not posted at tournaments and for the most part they have never been read and are not otherwise known by the best of players or even by the directors. For example, the same Conditions require that in the event of a tie, both teams must turn in a report slip. The two directors in charge at the Rocky Mountain Regional testified they were unaware of this special reporting rule even though in this case its enforcement would have prevented any issue from developing. Similarly, the same Conditions mandate that if a team fails to complete all of the boards in a Swiss Match, a warning must be given for the first offense and a victory point penalty imposed for every instance thereafter. Not only were the same directors unaware of this mandatory penalty condition, they testified that in their experience so long as a Swiss match was reported on a timely basis, no such requirement would be enforced. Moreover, none of the national-caliber players I consulted [except for those who had a previous experience with pairs sitting the same direction in a Swiss Match] knew of the “double blitz” rule. Indeed, in years past, such a match would have been scored as a tie [see November 2016 Bridge World editorial]. So, to answer the question, no evidence or other good cause exists to challenge the bona fides of the players who thought the match would be scored as a tie.

HOW MATCH #4 BRIEFLY GOT POSTED AS A 10 – 10 VICTORY POINT TIE

 

Hinze, who was captain of the other team, had sat out and was napping in the hall when Match #4 ended. When his partner, Hastings, awoke him, Hinze went back to his table so that he could report the match result. Hinze was near the table for most of the brief conversation that followed, but because the players were scattered about he only heard part of what was said. Specifically, Hinze testified he remembers Lair and at least one other player commenting that they thought the match was a tie. Unaware that each team’s pairs had sat the same direction, Hinze grabbed a score slip, filled it out and announced he was going to turn it in. For their part, the other players assumed that Hinze had heard the entire conversation, knew what had happened, and would report the circumstances to the directors. More specifically, no one asked Hinze to report a tie or suggested to him what to report. Neither did anyone see the report slip Hinze submitted or know what it said. For his part, Lair saw that a director was standing near the table before he arrived and assumed the director already knew what had occurred. A few minutes later, Hinze did turn in a report slip with the word “tie” circled but he did not speak with any of the directors. He merely waited by the reporting table until a new assignment was posted. Hinze’s memory was clear that he never spoke about the result with any of the other players either that day or for months thereafter. The directors who picked up the slip from where Hinze had left it, saw that it was marked as a “tie” and, without speaking to Hinze or any member of either team, posted the match with 10 victory points being awarded to each team.

Meanwhile, after awakening her partner, Hastings returned directly to Mike Passell’s table where she had been kibitzing. As she had gone to fetch Hinze, Hastings heard someone – probably a teammate – declare that the pairs had sat the same direction. Unsure of what that meant, she wanted to find out how the match would be scored. Passell, who had never seen this happen before in a Swiss Teams, did not know. At Hastings’ request, he went to the directors’ table, told directors Ken Horwedal and Patty Holmes what had happened and asked if each team would be credited with a tie. The directors responded no, each team would receive zero victory points. Still during the turnaround, Horwedal confirmed with Head Director Gary Zeiger what the ruling should be and corrected the awards so that each team received zero victory points. After doing that, Horwedal told the Captain of each team about the 10 victory point reduction.

GRAINGER’S CONVERSATION WITH HORWEDAL

During the next round [Match #5], Horwedal sought out Grainger to make sure his understanding of what had happened was accurate. This led to the revelation of what some on Bridge Winners have characterized as a “dummy” convention card and the claim that Grainger “lied” to Horwedal in an attempt to hide that each team’s pairs had sat in the same direction. The facts show something much more benign.

Horwedal approached Grainger while he was bidding the second hand of Match #5 and asked to see his scorecard from the last round. Grainger handed it to him. On the card, Grainger had put slashes through the scoring section of the card next to each contract to indicate that the IMP scores were irrelevant. Horwedal erroneously assumed those markings were intended to mean that boards had been properly played and each result had been tied. With that in mind, he asked Grainger if every board was a push. Wanting to speak with Horwedal away from the table, Grainger replied with a simple “yes” and completed the auction. He then excused himself from the table and walked over to Horwedal to make sure he knew that the teams had sat in the same direction. After Grainger clarified matters with him, Horwedal reported back to Zeiger. A little later, Zeiger found Grainger and reprimanded him for delaying his disclosure to Horwedal about what had happened. Grainger apologized, which Zeiger accepted. Zeiger then told Grainger that while he would be within his rights to call a conduct committee, he was going to let the matter drop.

Horwedal and Zeiger did let the matter drop. They did not call a committee, either that day or ever, and they neither filed nor requested any charges. Since they did not intend to pursue the matter, the directors did not retain either Grainger’s scorecard or the report slip that Hinze had turned in. Several days later during the Sacramento Regional, Hinze approached Zeiger to tell him that he had turned in the slip but had sat out the match and didn’t know what had happened. Zeiger told Hinze he already knew that. The next day, Zeiger called the National Recorder to make a record of what had happened. Four weeks later, the ACBL initiated the ethical charges described above against Grainger and all of the other players. The ACBL’s filing was made without further action on the directors’ part and was likely precipitated by both the 30 day deadline for filing charges concerning the Denver incident and the fact that disciplinary counsel were consumed with preparing for the Fantoni/Nunes and Fischer/Schwartz hearings scheduled for late July in Washington, D.C.

GRAINGER’S SPECIAL DEAL

During July, Hastings, Ebers, Janitschke and Hinze filed motions with the EOC to dismiss the charges against them for lack of evidence. On August 1, 2016, the EOC tentatively granted the motions but gave the ACBL a second chance [until August 10, 2016] to submit “probative evidence sufficient to create a prima facie case as to any of the original charges together with such argument or analysis of the facts or Code of Disciplinary Regulations [CDR] as the ACBL deemed appropriate.” On August 10, 2016 the ACBL submitted its Response, which relied entirely on Grainger’s testimony to support the charges of conspiracy or collusion. [The Response also cited statements submitted by Ebers in which she referenced factual contentions asserted in the ACBL’s complaint, but Ebers corrected the ACBL’s characterization of her statements to make clear that she was not present during, hear, or otherwise have personal knowledge about what was said during any of the relevant conversations].

The ACBL’s Response failed to disclose that on August 9, the ACBL had offered a “special agreement” to Grainger to drop all of the ethics charges against him in exchange for his accepting responsibility for three non-intentional rules violations [all associated either with not calling a director or with Grainger’s interaction with Horwedal] and the imposition of 6 months probation. Grainger wanted to resolve the matter but told the ACBL he would not accept the offer unless its terms were changed to dispel any notion that he had engaged in unethical conduct. The ACBL agreed to this request and on August 10 incorporated a statement into the “special agreement” that Grainger “did not know the match should not be reported as a tie and he was not present when the slip was made out and delivered to the scoring table.”… “He had never been in this situation before and did not recall clearly anyone else who had been” and that “he had never read the conditions of contest.” Most importantly, the “special agreement” was changed to include an express denial that Grainger was culpable for “the charges of unethical conduct ” because “he did not conspire and did nothing to advance the cause of unethical behavior.” On that same day, Grainger transmitted an email confirming his acceptance of the revised offer. 

Within a few days, the ACBL came to appreciate that all of the exculpatory statements about Grainger in the “special agreement” could equally apply to each of the other players. Accordingly, on August 14, the ACBL sent out unsolicited offers to all of the charged players expressing its desire to fully resolve the case on the same terms offered to Grainger, i.e. all charges of unethical conduct would be dropped in exchange for the parties’ accepting six months of probation for rule violations related to their failure to call a director. The ACBL’s offer did not contain a recital of the underlying facts nor did it disclose either the existence of Grainger’s “special agreement” or its exculpatory statements.

Like Grainger, Lair was eager to resolve the charges against him but only if the agreement made clear that he had not engaged in any unethical conduct. Accordingly, Lair instructed me to reject the August 14 offer unless the ACBL agreed, as a condition precedent, to a written stipulation that (1) the “Parties’ intention in entering into the Agreement [was] to dismiss all charges related to ethical violations” and (2) that “Mark’s conduct in the Denver Regional did not constitute an ethical violation.” After consulting with its CEO and counsel, the ACBL did so stipulate.

THE DISPOSITION OF THE CHARGES

In lieu of the “special agreement,” Grainger accepted the ACBL’s new offer, as did Lair, Morse and Ebers. Hinze, Hastings and Janitschke chose to stand on their Motions to Dismiss. The other charged players declined the ACBL’s offer. On August 29, the EOC accepted Grainger’s admission of responsibility and, with the consent of the ACBL, dismissed the charges against Janitschke for health reasons. However, in light of the seriousness of the original charges and the “uncertainty and discrepancy in the information currently available,” the EOC denied the Motions to Dismiss filed by Hinze and Hastings and declined to accept the negotiated admissions of responsibility submitted by Lair, Morse and Ebers. During September, Hastings filed a Motion for Summary Judgment based on statements submitted by other charged parties. On September 21, the EOC granted that motion based on its finding that Hastings “had no involvement either in sitting the same direction as teammates, in discussing how to report the result with teammates or opponents, in submitting a report of the Match 4 result, or in being apprised of what was reported in time to bring the matter to the attention of the Tournament staff, and that there is not a scintilla of evidence to inculpate Ms. Hastings in any way in wrongful conduct.”

After last month’s hearing, the EOC dismissed all remaining charges against Ebers, Enfield, Seligman, Hinze and Hastings. The EOC also dismissed all ethics and intentional misconduct charges against Lair, Morse and Doner, together with the rules charge based on CDR 3.1 [violation of the laws of bridge]. The EOC’s actions left two charges for non-intentional rules violations against Lair, Morse and Doner. Those charges related to “noncompliance with conditions of contest consistent with awareness that a director should have been consulted before a result was reported” and “failure to notify an appropriate official in a timely manner of a score that one should recognize as incorrect.” Lair and Morse were found culpable for both, and Doner for one. In its decision, the EOC noted that although the players had previously “unblemished records for ethicality and sportsmanship,” in the case of Lair and Morse their extensive experience should have led them to immediately consult a director. Most importantly, however, the EOC also expressly found that none of the charged parties had “engaged in a deliberate effort to claim Victory Points they had not properly earned.” That overarching finding fairly reflects the 850 pages of prehearing evidence and the hearing testimony from 10 live witnesses that the EOC considered. In sum, the players’ honest mistake in not immediately consulting a director had combined with Hinze’s innocent error in not verifying the circumstances of the tie to lead to the brief posting of an incorrect victory point score. Although the posting was swiftly corrected and caused no significant harm, it spurred an overly zealous prosecution of ten players for serious ethical charges. As was inevitable, all of those charges were eventually dismissed for lack of evidence.

A FEW PERSONAL COMMENTS ABOUT LAIR

Many of those who have written in Bridge Winners over the last few months about Lair have extolled his qualities as a bridge player and a person. They had good reason to do so. During his more than 50 years of play, Lair has accumulated in excess of 65,000 master points, many national titles and a world championship. He is almost universally well liked and admired by strong and not-so-strong players alike for the many ways in which he has reached out to help others. Most importantly, Lair has consistently conducted himself in accordance with the highest standards of the game as is reflected by his superb reputation for fair play among national caliber players.

In closing, I would like to comment on a different aspect of Lair’s character – his steadfast honesty and his unfailing sportsmanship. Lair’s extraordinary ethical conduct at the table has been the subject of multiple published reports. Here is a previously private example that Peg Kaplan recently brought to my attention:

In 1993, Kaplan was playing on a client team in an NABC Mixed Teams Board-a-Match with Lair. Mike Passell was at the other table. The team made it to the finals where they had a strong first session [19.5 out of 28]. Lair and Kaplan were doing just as well in the final set and they believed they were in contention to win. That’s when Lair and Kaplan went to play against a couple they did not know but who were arguing. Neither appeared to be a strong player. I will let Kaplan tell the rest of the story:

“The opponents bid to a part score. When dummy came down, declarer began yelling at his partner. He did not stop throughout the hand telling her that she should have done this and that, that they were in the wrong contract, that she had lost the board for them, etc…Finally, without stating a line of play, declarer claimed [saying] he was going down one. I was ready to score it up – but not Mark. Having been watching closely throughout, Mark realized that a pitch I had made would allow declarer to make the hand. So, despite the fact that declarer made no statement [and it was possible for him to go down], Mark felt he should score the hand as making."

"As I had not played for a long time at this stage, particularly in NABC events, I was not going to argue with Mark. That being said, I didn’t think then that it was necessary for Mark to let declarer know that he could have made the hand. Honestly, this guy was so out of control it was not clear to me what he would have done even if he had played the hand out. Still, that was how we scored it up. Mark did not want to take a trick to which we were not entitled."

"As it turns out, with the scores so close, we would have won the event had the board been scored in accordance with declarer’s claim [Kaplan’s team finished fourth less than half a board out of winning]. Though I was sad not to have been able to win, Mark’s behavior has stuck with me. I’m not sure how many players, and especially how many professionals, would have done what they thought was right and ethical in these circumstances. All I know is that Mark Lair did."

"Recently, Mark and I spoke about this incident. Mark apologized for depriving me of my first national win – it took me 10 more years before I finally won one. But I told him it was no big deal; and that is truly how I feel. Today I remain so impressed with Mark’s ethics and his concept that ‘doing what is right’ supersedes ‘winning at all costs.’ That is the kind of person Mark is and those are the values by which he lives.”

Lair has long been a distinguished member of our community. In light of the EOC’s dismissal of the charges of unethical conduct alleged against him and the extensive false and unjustified things that have been said about him on Bridge Winners, I look forward to hearing of your experiences that reflect the real Mark Lair.

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