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

In 2011, Milwaukee Brewers star Ryan Braun became the first MLB player to successfully challenge, and evade, a 50-game suspension for suspected use of performance enhancing drugs (PEDs).  Coincidentally, that same year, Braun went on to win the National League MVP award.  Although many thought that Braun escaped on a technicality, Braun was not without his vocal defenders, most notably his good friend, and fellow Wisconsin superstar, Green Bay Packers’ QB Aaron Rodgers.  In 2012, Rodgers was quick to come to Braun’s defense when Todd Sutton, a flight nurse from Denver, tweeted that Rodgers was “delusional” in blindly believing that Braun was clean.  In response, Rodgers brazenly tweeted “I’d put my salary next year on it.”  This Twitter exchange would certainly have gone unnoticed but for the fact that, in 2013, Braun was suspended by MLB for 65 games for violating the league’s PED policy and to eliminate any lingering doubt, Braun publicly admitted to making “mistakes” and accepting “the consequences of those actions.”  Given these events, can Sutton expect to supplement his nurse’s salary with an $8.5 million payday?

Doubtful.  While courts will not enforce bets involving prohibited gambling games, it is arguable that this bet did not constitute a prohibited gambling activity so presumably the bet may be enforced if it was an otherwise enforceable contract.  For there to be such an agreement, there must be consideration.  Consideration is something of value given by both parties that induces them to enter into the agreement to exchange mutual performances.  Without consideration, there’s no contract.  Here, Rodgers has seemingly promised next year’s salary if Braun was using PEDs.  The problem for Sutton, is that he has promised nothing in return and provided no consideration.  Compounding the problem for Sutton is the fact that Rodgers statement seems conditional.  He states he “would” put his salary on it.  As worded, Rodgers has arguably left open material terms and conditions of his promise and therefore a court would likely choose not to enforce.  Reportedly, Sutton has taken the whole exchange in stride and suggested a compromise of a single game check.  Good luck.

Tilting the Scales in Your Favor

            The essential elements necessary to form a binding contract are typically described as an offer, an acceptance (in strict compliance with the offer or it will be considered a counteroffer), a legal purpose, a meeting of the minds as to the parties’ obligations, consideration and competent parties.

Will this Legislative Session impact business owners? With the assistance of our own LRM Freshman State Rep. Jeff Leach, R-Plano, Tilting the Scales will periodically post updates on bills that might affect your business, along with an occasional humorous twist.

As an example and keeping in the tone of this month’s postings on gun control, as the federal government moves forward on its plans to tighten gun restrictions, Texas lawmakers are proposing legislation to expand gun rights in the state. The latest proposal is HB 700, a so-called “open carry” bill filed last week by State Rep. George Lavender, R-Texarkana, to allow individuals with concealed handgun licenses to carry weapons in plain view on a belt or shoulder holster. Similar legislation failed last session. Other recent proposed policy changes include allowing concealed handguns on college campuses, and arming and training school officials, including teachers.

More summaries to come as we continue through this legislative session.

CHL in TexasSam Colt lives in Dallas and is a gun enthusiast.  As a result of a rash of car jackings in his neighborhood, Colt regularly carries a Glock 9mm in his vehicle for self-protection, although he does not have a concealed handgun license.  Driving to his local bank last week, Colt tosses his gun into the passenger seat so that he has easy access to it in the event of an emergency and to dissuade any anyone with bad intent.  Unfortunately, Colt gets stopped for speeding and the officer sees the gun.  Is Colt in trouble?   

Carrying a Gun in the Car

Yes.  Pursuant to the 2009 Texas Motorist Protection Act, Colt does not need a concealed handgun license to carry a handgun in his car.  However, the weapon must be concealed and Colt may not otherwise be:  (1) engaged in committing a crime; (2) prohibited from carrying a weapon; or (3) a member of a gang.  Colt’s violation would be classified as a Class A misdemeanor (the most serious level of misdemeanor) and would be punishable by a fine of $4,000 or less and/or jail time up to a year.  Interestingly, if Colt instead chose to carry a rifle/shotgun in his car, that weapon need not be concealed.

Where Concealled Carry is Prohibited

Now, assume for the moment that Colt has a concealed handgun license.  Could he bring his concealed weapon into his local bank?  Probably.  While the Texas Penal Code specifies many places that one cannot bring a concealed handgun, a bank is not one of them unless the bank has elected to post a sign forbidding concealed carry on the premises.  Types of places where concealed carry is prohibited include, among others:

  • Schools or on school buses;
  • Polling places;
  • Courts and court offices;
  • Locations where high school, college or professional sporting events are taking place;
  • Nursing homes;
  • Amusement parks;
  • Places of worship;
  • Government meetings;
  • Anywhere alcohol is sold if 51% or more of their revenue is from the sale of alcohol;
  • Secured airport areas;
  • Within 1,000 feet of the premises of an execution on the day of execution; and
  • Businesses posting signs prohibiting handguns on their premises based on criminal trespass laws.

Tilting the Scales in Your Favor

The best rule of thumb for those who do not have a concealed handgun license is to always transport your gun in its case in the back of your car.  If you are keeping the gun in your car for safety reasons, then store it in the glove box or under your car seat. 


Justin Thyme is a member of the U.S. Olympic swim team and is returning from London with a gold medal in the 400 meter individual medley.  After 10 years of dedicated training, Thyme secured first place when he edged out the next closest finisher by a mere .0007 seconds.  After the medal ceremony, Thyme is excited to learn that U.S. gold medalists are given a cash prize by the U.S. Olympic Committee of $25,000.  Thyme, however, is disappointed when told that he might have to pay $9,000 in taxes on his medal and prize.  Is that the law?

Taxes on Gold Medals

Yes.  Although a gold medal is not worth much in actual terms (about $655, as it is only 1% gold), The USOC awards a nice honorarium for those fortunate enough to win a medal.  In the United States, gold medal winners are awarded $25,000, $15,000 for silver, and $10,000 for bronze.  (While this may seem like a lot of money, it pales in comparison to the prizes awarded by other countries.  An Italian who wins gold would be awarded nearly $182,000.  A Russian would be awarded nearly $135,000.)  While Olympic medalists do have to pay taxes on their winnings, it is unlikely that Thyme will be hit with a tax bill for $9,000.  The $9,000 figure is based on the earnings of someone in the top tax bracket of 35%.  This is usually not the case for Olympic athletes (forget the Kobe Bryants and Michael Phelps of the world).  Also most athletes would be able to write off their prize winnings against their significant training costs expenses.

Supporting Case Law

There is legal precedent for the taxation of the medal itself.  In 1963, Maury Wills (shortstop for the Dodgers) received the S. Rae Hickok Award for being named the outstanding professional athlete of the year.  The award was an alligator skin belt with a gold buckle and diamonds.  A lawsuit was initiated to determine whether Wills was required to report the value of the belt as income.  Finding that the belt could be taxed, the court noted, “The law as it presently exists requires the foregoing conclusion.  We dislike it, for we are convinced it is an inequitable result.  The next step would be for the IRS to tax the gold and silver in medals awarded to Olympic Games’ winners.”  Commissoner v. Wills, 411 F.2d 537 (9th Cir. 1969).

Proposed Solution

Republican Florida Senator Marco Rubio has recently proposed a bill entitled Tax Exemption for American Medalists or “TEAM” to amend the Tax Code to make the medals and cash awards tax-free.  President Obama announced his support of the legislation.  The legislation would apply to awards received after December 31, 2011.

Conner “Big Hit” Carter retired from professional football 10 years ago after a highly acclaimed career. Big Hit’s punishing tackles earned him numerous pro bowl appearances as well as a hefty pay check and several head injuries. Recently, Big Hit has experienced Alzheimer’s-like symptoms including memory loss, depression and severe mood swings causing him to join the lawsuit recently filed by over 2,000 NFL players alleging that the NFL promoted the violence of the game and deliberately concealed evidence that there were no long-term effects from concussions and no link between football related head injuries and long-term brain damage. How will the NFL likely respond to these allegations?

The Likely Litigation Strategy. Big Hit and his fellow plaintiff players will almost certainly employ many tactics successfully used by tobacco litigation plaintiffs, which resulted in a landmark $206 billion settlement. Players will argue that, like the tobacco companies that hid the connection between smoking and long-term congenital issues, the NFL hid important evidence downplaying the risks of multiple concussions and failed to disclose that head injuries could have been avoided if the league provided players with accurate and truthful information. It is likely that the NFL’s will move to dismiss the lawsuit arguing that that federal employment law preempts the player’s ability to file a lawsuit that is fundamentally a dispute under their collective bargaining agreement. Like a workers’ compensation claim, the labor agreement provides exclusive remedies for issues relating to player safety, treating injuries and compensating for head injuries. The NFL successfully employed this strategy in the past when the Minnesota Supreme Court refused to allow a claim brought by the widow of Vikings tackle, Korey Stringer when he died of heatstroke following a 2001 team practice. The NFL will also argue that it is impossible to prove with any certainty when the injuries took place. Was Big Hit injured while playing pee wee football, high school football or college football? Were the injuries the result of diet or simply hereditary? Another likely strategy employed by the NFL will be to avoid class certification and force players to file individual lawsuits (which will be both time consuming and expensive), by arguing that each state has different tort laws and remedies, that a class action is inappropriate because the injuries to each plaintiff are so unique and therefore separate lawsuits are required.

Tilting the Scales In Your Favor.

Workers’ compensation insurance is a powerful and often necessary tool for employers. As discussed in prior Tilting the Scales posts, workers’ compensation is a state-regulated insurance system that provides covered employees with income and medical benefits. Workers’ compensation coverage limits liability by preventing an employee from filing a claim in a civil suit, except in cases of gross negligence.

Reports surfaced last week that several NFL teams were linked to a “bounty” scandal in which defensive players and coaches pooled cash together to pay players for big hits, which resulted in “knockouts” or “cart-offs.”

As the NFL commissioner, Roger Goodell, fashions an appropriate punishment, the scandal could have both civil and criminal implications.  As we previously blogged in I Went to a Fight and a Hockey Game Broke Out,  if an act is considered “part of the game” (a collision at home plate, a foul in basketball or a tackle in football), then players are considered to have assumed the risk of injury.  However, when conduct goes so far beyond that which is normally tolerated, civil and criminal liability may follow.

Legal precedent exists for the notion of holding players responsible for conduct that recklessly endangers their opponents.  Therefore, the possibility exists for assault and battery charges to be filed against individuals who took part in the bounty rewards program.  Furthermore, teams could also face civil liability from fans that paid to watch games based purely on athletic talents and not secret side bets among the players and coaches.

Paige Turner works at a small bookstore in El Paso, Texas directly on the U.S./Mexico border. As a result of a string of armed robberies in the same shopping center, Paige wants to carry a handgun while at work. After weeks of research, Paige finally settles on a Glock 9 mm, attends a concealed handgun class, and becomes licensed to carry (a CHL license). Thereafter, she brings the gun to work where she keeps it in her purse. One day at lunch, Paige mentions to her boss, Rita Booke, that she is armed and not afraid to use the gun should the opportunity present itself. Rita, who is terrified of guns, tells Paige that “guns are scary” and that Paige is not permitted to bring the gun to work, despite the fact that she has a CHL. Must Paige comply?

Yes. With proper licensing, a person may carry a handgun so long as it remains concealed. As you might imagine, there are a number of common sense places where the legislature has stated you may not bring your gun. These include, among others, a government court, a bar (a business that derives more than 51% of its income from the alcohol sales), a school, a place of religious worship, a polling place or a secured area of an airport. While license holders are free to carry almost anywhere else, Section 411.203 of the Texas Government Code maintains that a CHL does not prevent or limit the right of a public or private employer from prohibiting CHL’s from carrying a handgun on the premises of the business. Accordingly, Rita’s request must be honored.

Tilting the Scales in Your Favor:

Employers who wish to prohibit firearms at their place of business must take into account both their employees and customers. Employees can be advised of the prohibition through an employee handbook. To prohibit customers from bringing firearms into your business, state law requires owners to post a sign that says: “Pursuant to Section 30.06, Penal Code (trespass by holder of a license to carry a concealed handgun), a person licensed under Subchapter H, Chapter 411, Government Code (concealed handgun law), may not enter this property with a concealed handgun.” The sign must be written in both English and Spanish in contrasting block letters at least one inch in height, and must be displayed in a conspicuous manner, clearly visible to the public.

More on Texas Guns:

There is neither a waiting period (under normal situations) nor a state registration program relating to the purchase of firearms in Texas. Effective September 1, 2007, a person need not have a CHL to carry a handgun in a motor vehicle (including a recreational vehicle with living quarters). However, the firearm must be concealed, the person may not be engaged in criminal activity, and may not be a member of a “criminal street gang.” The person may also carry the handgun to and from his vehicle without a license.

It’s the bottom of the sixth and the home team, the Isotopes, is at bat. Adam Baum, the Isotopes’ all-star player, crunches a 98-mph fast ball down the right field line that heads toward the third deck. To everyone’s chagrin, the ball slices foul at the last moment and makes its way into the excited crowd. While the home crowd may be disappointed, this is the moment that Royal Paine has been waiting a lifetime for. You see, Paine has never caught a foul ball and has specifically purchased season tickets in the first row of the third deck waiting for just this opportunity to present itself. Paine will not be denied — as the speeding ball approaches, he holds out his Cabela’s fishing net to make the snag. Unfortunately, for Paine, things go terribly wrong. Perhaps it was his 6’6” frame against a 26” rail, perhaps it was the six pack he had to drink, or perhaps it was his general lack of coordination, but instead of catching the ball, Paine awkwardly stretches over the rail, completely missing the ball and topples thirty feet into the second deck. Paine suffers serious injuries. After 3 months in the hospital, Paine brings a lawsuit against the Isotopes and its owner, Montgomery Burns. Does Paine have a claim?

Probably not. Although the chances of a lawsuit being brought are high, the chances of a recovery for Paine are relatively low. Since the first baseball stadium was built, architects have been trying to balance safety against fans’ unobstructed site lines. Major League Baseball requires that the rails where Paine was seated be a minimum of 26” tall. The Isotopes complied with this requirement and also posted signs that clearly state, “Do not sit or lean on rail.” In a comparative fault state such as Texas, it is likely that a jury would find that Paine was more negligent than the defendant as he was likely intoxicated and knowingly assumed the risk when he leaned over the third deck rail to catch a $5 souvenir. If a jury were to find Paine 51% responsible for the fall, he would recover nothing.

Falls from the upper decks are rare, but occur with somewhat surprisingly frequency. Three fans have died from falls since 2000, while another 9 have survived similar accidents. In 1994, on opening day of the Texas Rangers’ new ballpark, a fan fell 35 feet from an upper deck while leaning against a rail to have a picture taken. The fan sued the Rangers and settled out of a court for an undisclosed sum.

Tilting The Scales Your Way

Know your environment and watch out for yourself. If you are a fan, know that the professional sports team probably adheres to governmental and league regulations. If you are the company, plan and respond to accidents in an organized fashion. For example, you may have seen stadium safety and medical personnel quickly moving to the aid of any fan hit by a foul ball or falling down. Even though the company may not be legally liable for the fan’s missteps or inattention, quickly responding to the accident is the right thing to do.

Soccer is Freddy Fifa’s favorite sport. Fifa just returned from South Africa after watching the United States’ disappointing round of 16 losses in the World Cup. As a souvenir of his experience, Fifa brought home a vuvuzela* and vows to be the first fan to introduce it to his second favorite sport – hockey. True to his word, Fifa brings his vuvuzela to the first game of the season and blows and blows and blows. After suffering a hard check into the boards and driven into a fit of rage as a result of the horn’s incessant droning, Ricky Rumble (who has a short-temper even for a hockey player) picks a fight with an opposing player, Sam Boney. The fight does not last long as Rumble skillfully lands a punch that breaks Boney’s nose. Does Boney have a claim against Rumble for the injuries sustained as a result of the fight?

Probably not. An opposing player’s conduct that would be clearly actionable outside the stadium is perfectly legal inside the stadium if the act is considered “part of the game.” If an act is considered part of the game (e.g. a tackle in football, a collision at home plate, or a foul in basketball), then players have assumed the risk of injury. This, of course, begs the question is fighting part of the game in hockey? Yes. Although fighting is considered illegal in hockey (it will get you a five minute major penalty), it happens all the time. In fact, fighting happens so often that the NHL has rules about how to fight (e.g. players must drop their sticks and gloves) and many teams maintain an “enforcer” on their roster to fight and protect the team’s star players. With over 700 fights during the 2008-2009 NHL season, one would be hard pressed to say that fighting is not part of the game. As Rumble’s actions do not appear to be blatantly outside the boundaries of hockey, Boney assumed the risk of injury.

However, when conduct goes so far beyond that which is normally tolerated, civil and criminal liability may follow. In 2004, Vancouver Canuck, Todd Bertuzzi, plead guilty to an assault charge after blindsiding Colorado Avalanche rookie Steve Moore with a punch to the back of the head which left Moore unconscious, with a concussion and three broken vertebrae. Moore subsequently brought a lawsuit against Bertuzzi alleging $38 million in damages as a result of the attack which ended his NHL career. Six years later, the case is still pending.

*BZZZZZZZZZZZZZZZZZ (deep breath) BZZZZZZZZZZZZZZZ. If you have watched even a second of the World Cup, you now know that a vuvuzela is a cheap, plastic trumpet that emits a buzzing noise so annoying it could drive a bumble bee crazy. The sound has quickly found its way into our pop culture and even YouTube has added a button so that users can listen to the horrendous sound while watching their favorite online videos.