Super Bowl Squares and March Madness Brackets – What Employers Need to Know

This Sunday is the Super Bowl, and while it will not be as great without the Lions there, there is a good chance your employees are betting on it. The American Gaming Association estimated that upwards of 28 million Americans participated in office pools for the 2023 Super Bowl. This was up 50% from 2022 and it is expected even more employees will be in office pools this year. How should employers feel about that?

On one hand it can be said office betting pools generate excitement and camaraderie. On the other hand, its gambling, and in many jurisdictions – illegal.

So technically what is gambling? An interesting article by an attorney at Littler Mendelson PC, Steve Silver provides this definition and example:

“The three basic elements of gambling are consideration, chance, and prize. Generally, most states define gambling or “games of chance” as any contest or scheme where a person risks or provides something of value for the chance of winning a prize where chance cannot be eliminated through skill. In terms of Super Bowl squares, participants blindly purchase one of 100 boxes from a ten-by-ten matrix.”

For an employer to sponsor a gambling event without a license is illegal. The Littler article points out that 37 states consider Super Bowl Squares illegal. The few that do allow it, have some pretty narrow restrictions. Michigan does not permit Super Bowl Squares or Brackets. Our friends in Ohio; however, do have a narrow exception as long as nobody profits from the game.

If an office pool crosses state lines, it can now be a federal offense when including “Bob” or “Rita” who work out of state in the Squares game. It’s possible (maybe not probable though) you could hear from the “Feds.” Communicating the Squares game to them by electronic means may violate the Interstate Wire Act of 1961.The Littler article reports even your personal pay processor app may reject transactions if they believe they may be unlawful gambling.

To protect yourself as employers, Littler Mendelson advises employers to remind employees about their no gambling policies. If they do not explicitly prohibit gambling it might be prudent to say if office pools are allowed or not and under what circumstances.

So now that I’ve thrown water onto everyone’s good time (sorry, I’m only the messenger) what might an employer do? Littler Mendelson suggests sponsoring and office free-to-play option? How about offering non-cash prizes such as company swag and trinkets?

If you insist on letting the good times roll, it is advised you make sure the organizer is not taking a cut for running the pool and keep the entry fee minimal. $1 per bet or square is suggested.

Lastly, Littler Mendelson says to remind employees not to use the employer’s mobile devices or internet to place their private action. This will also keep employees’ attention more on their work and not on their gaming at this time of year. That said, remember it’s only five or six months before fantasy football starts back up.

By Michael Burns, courtesy of SBAM-approved partner, ASE. Source: What Issues Do Super Bowl Squares Present in the Workplace? Littler Mendelson PC (1/30/2024)

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