The second situation is bad, and may even be cheating, although proving it (or at least gathering sufficient evidence) would be very difficult. The example was removed from the IPG because the first situation is clearly not cheating, yet fit into the example exactly.
Cheating is:
* Breaking a rule, or allowing a rule to be broken
* Intentionally, knowing that you're breaking a rule (or at least doing something “wrong”)
* In order to gain an advantage.
3-pile counting your opponent's deck is not against any rule. While a player's deck is presented to their opponent for “additional randomization”, there's no requirements on the nature of that randomization. Opponents are allowed to merely cut the deck, or even just leave the deck as-is. Without a rule being broken, it can't be cheating.
Consider an alternate scenario - a player believes that their opponent has shuffled so poorly, that all their lands are in a single clump on the top of their deck. So, when presented, they merely cut the deck, leaving all lands on the bottom. In this situation, would you say cutting the deck, instead of shuffling it, was cheating?
The player is not breaking any rules. They might be allowing their opponent to break a rule, by allowing their opponent to insufficiently randomize their deck. But, how would you prove that they realized their opponent had insufficiently randomized? It's not even always easy for a judge to tell if a deck is sufficiently randomized.
I think the previous versions of the IPG assumed that any instance of the defensive 3-pile count would be to take advantage of known insufficient randomization, in which case it would be cheating.
To be clear, even in the second scenario, the 3-pile count itself is not cheating, what's cheating is allowing your opponent to insufficiently randomize, because you think you'll gain an advantage by doing so.
Edited Talin Salway (April 28, 2014 09:51:08 AM)