Exactly.
If I contract someone to do some work for me, and not only do they not do it but they cost me money, there is no way I'm going to pay them. In fact I'd probably penalise them and try to recover costs, especially if others are affected.
This is not exactly what has happened here. *Contracts* were not broken.
What is happening here, it seems to me, is that an error was made, and the person making the error did not fully disclose it or try to remedy the error in a honest and forthright manner, rather chose to call foul and claim the withheld BTC - relying on the trust-less, mathematical nature of the system.
The error was discovered and the pool op decided to withhold payment - taking the position that the work was not done to the required standard.
Is Eligius going to retroactively apply a contract based on some arbitrary statistical measure of block finding luck on all its miners? What exactly is that measure? Where is this standard going to be documented?
Bitcoin and its protocol is not meant to require "judges" and the decisions of "trusted" people.
One in a position to be able to make such a change (such as the case here with wizkid et al) should consider the impacts of doing so carefully - it is a large responsibility.
Similarly, I also think that brucexie should also consider the impact of his obvious attempts at non-disclosure and the apparent withholding of his knowledge regarding the scale of the errors. It is easy to assume that he must have known about negative impact this would have had on others.
A good outcome would be for Brucexie to apologize and *allow* the money to be distributed; then Eligius sets about creating a statistical measure of work quality going forward that everyone has the opportunity to accept or reject.