How To Super Bowl Squares

[Hollis Abdelkarim]

Nowthat the February 11, 2024, Super Bowl matchup between the Kansas City Chiefs and San Francisco 49ers is set, many American workplaces will turn to the ubiquitous office pool to generate excitement and build camaraderie over the next two weeks.

Despite their popularity, those Super Bowl squares can present thorny legal risks for employers who sponsor them, because Super Bowl squares are, by definition, gambling. Whether that gambling is unlawful depends on the jurisdiction and how the pool is operated.

Given that the elements of gambling are present, absent a state exception, it is technically illegal for companies to host an office pool without a license. This is where employee confusion often sets in. Since the U.S. Supreme Court struck down the federal prohibition on sports betting in 2018, 38 states (plus D.C.) have legalized sports betting. Since that time, Americans have legally wagered more than $300 billion on sports. Given the pervasiveness of legal sports betting, most employees (and their employers) assume sports betting in all forms is legal. But it is not.

In fact, Super Bowl squares are illegal in 37 states. And even the states that do permit office pools have different requirements. For example, the state of Washington permits Super bowl squares, but with strict conditions that (1) only one board may be offered; (2) a person or business cannot charge more than $1 per square; and (3) the board must be available for state inspection. Other states like Ohio and Colorado permit office pools so long as the organizer does not make a profit or take a cut of the entry fees.

Employers that want to sponsor an office pool such as Super Bowl squares (or March Madness brackets later this year) should consider free-to-play options to eliminate the consideration element of gambling. Employers may also want to offer non-cash prizes like company apparel to minimize tax consequences of winning cash.

Employers that are set on hosting pools for real money should try to keep each pool within a single state rather than set up cross-border pools. Also, the organizer should not take a cut of any of the entry fees. Keeping the entry fees minimal, such as $1 per square, also helps to reduce any hard feelings from those who do not win.

Additionally, now is a good time for employers to revisit Internet and mobile device use polices given the proliferation of mobile gambling. Employees in 29 states (plus D.C.) have 24/7 access to gambling on their mobile devices, which can present its own issues of distraction and time wasting in the workplace.

Despite the risks, office pools can be useful tools to build camaraderie and bring some entertainment into the workplace. Before sponsoring Super Bowl squares, however, employers should consult with counsel to ensure compliance with local, state, and federal laws.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.

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