Riding her beloved Packers late-game win against the Dallas Cowboys, Allfer Funn, owner of Con Genial, is polishing her cheese head hat and dusting off her Super Bowl Squares Pool from last year in anticipation of the Big Game in a couple of weeks. Electing not to “Reinvigorate [Her] Super Bowl Office Betting Pool” as some have suggested, she does, however, decide to up the ante from $10 a square on her 10 x 10 grid to $20 a square. Just good clean office fun to build morale, right? It’s not illegal… or is it?

The Legal Reality?

Yes, it’s illegal in any number of ways. It’s illegal gambling in Texas. And, for Allfer, organizing the Pool is likely “bookmaking” – receiving more than 5 bets in a 24 hour period. Under the gaming laws of all 50 states, it’s a bet with a prize that is won or lost solely by chance. Because squares pools involve randomly assigned numbers, the contest is entirely based on chance and thus illegal unless (in a state other than Texas) it falls within a state-specific “recreational gaming exception.”

And there’s more.

Beyond Texas, the federal Professional and Amateur Sports Protection Act of 1992 also prohibits gambling, specifically on professional and amateur games. Should Allfer Funn or her employees elect to bet online there’s always the federal Unlawful Internet Gambling Enforcement Act of 2006 (UIGEA) which Tilting commented upon in 2011 that prohibits nearly all types of online gambling.

Notably, the UIGEA exempts most fantasy sports competitions, classifying them as games of skill rather than games of chance – except for the Super Bowl. A fantasy football competition is based upon a single game with a limited number of outcomes as well as a limited number of players/teams from which participants can choose, whereas the Super Bowl is viewed as a game of chance rather than a game of skill.

The Practical Reality?

As reported in a Houston KTRH NewsRadio 740 interview last year by Tilting’s own Cleve Clinton, “It’s illegal. Now, realistically and practically, is anybody going to do anything about it? No.”

In the same interview, Clinton told KTRH that Texas law has such a broad definition of gambling, that technically any betting pool violates state law.  Whether or not the state chooses to enforce that depends on a few factors.

“The first thing you really want to look at is how big of a pool are we talking about, the second thing is who’s running it, and the third, will someone (the organizer) profit by it,” says Clinton.

Allfer may want to reconsider and not increase the pool size from a total of $1,000 to $2,000.

Good Clean Fun?

Notwithstanding that gambling on the Super Bowl is illegal, Allfer Funn should be wary of potential retaliation and hostile work environment claims from employees either excluded from or uncomfortable with office gambling.  What happens if an employee snitches? The Texas Penal Code seems to offer “testimonial immunity.”

Tilting the Scales in Your Favor

While Texas does have strong laws against gambling, most low-stakes office pools should be all right, as long as they are run by an individual and not the company, and nobody takes a profit or fee off the top for organizing or running the pool.  “It risks becoming a problem when you get out of bounds on size or (scope),” says Clinton. It is best for Allfer Funn that she not manage the Super Bowl pool. And, she should check Con Genial’s employee manual to make sure that she is not stepping out of bounds of her own company policy. Finally, Allfer should be cognizant of the objection of any employee and respond accordingly. Go Packers!

Read more: Houston KTRH NewsRadio 740 Super Bowl Betting Pools May Be Illegal

Tilting the Scales articles: Internet Gambling in the U.S.March Madness Basketball GamblingWanna Bet? Betting About Baseball Returns to the News

It’s March and NCAA Madness is in full swing. Cindy Rella, your office manager, is now a water cooler fixture bragging about her imminent victory in the office basketball bracket.  Sitting at your cubicle bitter that your team lost in the first round, and even more bitter that Cindy, the office sports idiot, used the best looking team jerseys to pick last year’s Cinderella team, you wonder out loud whether the office pool is even legal.

In the vast majority of states, including Texas, gambling is a crime that is defined so broadly in most penal codes that office pools are very likely illegal. Reports are that in 2008 nearly $2.5 billion changed hands in March Madness office pools and that over 25% of the American workforce participated in NCAA bracketology. NCAA tournament pools, like most other forms of gambling, are probably, technically illegal in the vast majority of states and could result in misdemeanor charges, perhaps even jail time.  So what is the risk of Cindy going to jail for betting $20 on North Carolina and this years Cinderella team?  Probably pretty remote.

Tilting the Scales Suggestions. Pay out all the winnings. Make the pool individually managed, not corporate. The bigger risk may be to your company if it explicitly or implicitly permits such gambling.  Most companies have policies to prohibit office gambling.  Allowing office pools for the NCAA basketball tournament, Super Bowl or even for the birth weight of an employee’s child may very well be technical violations of such office policies.  The selective enforcement of certain policies might even affect a company’s credibility on other workplace policies, for example harassment, theft, etc., and might expose a company to uncomfortable questions, possibly unnecessary lawsuits.  Accordingly, while most companies “wink” at office pools and judge the legal risk and lost productivity as being outweighed by the camaraderie and esprit de corps that such pools foster, this is another one of those company bets where the potential risk should be thoughtfully weighed.