March 25, 2019

March 25, 2019

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Super Bowl Sunday Considerations Following the Murphy Decision?

Millions of Americans will tune in on Sunday, February 3rd to the Super Bowl to watch one of the biggest sporting events of the year. This year’s game will again feature the New England Patriots, but it will be the first Super Bowl since the Supreme Court’s landmark case Murphy v. National Collegiate Athletic Assn., No. 16-476 (May 14, 2018), which struck down the federal ban on state-regulated sports wagering.

In that decision, the Supreme Court ruled that the Professional and Amateur Sports Protection Act (PASPA) (28 U.S.C. §3701 et seq.), which made it illegal for states to “authorize” a “lottery, sweepstakes, or other betting, gambling, or wagering scheme based … on one or more competitive games in which amateur or professional athletes participate” was illegal. The Court concluded that PASPA violated the 10th Amendment of the U.S. Constitution and formally removed the federal ban on sports betting.

The decision returned the power of individual states to legalize and regulate sports betting at the state level. The Court’s decision allowed states to enact their own gambling laws. Currently, eight states (Delaware, Mississippi, Nevada, New Jersey, New Mexico, Pennsylvania, Rhode Island, and West Virginia) have specific legislation authorizing some form of licensed and regulated sports gambling. In addition, New York and Arkansas have passed some form of gambling legislation. However, Murphy and the various state statutes passed have not given private citizens the right to begin conducting wagering pools.

While office camaraderie and positive working relationships may result from coworkers socializing over the game, employers may suffer lost productivity in the days leading up to and following the event. Employees may spend work time discussing the upcoming game and earlier playoff match-ups, as well as related statistics and player injuries. They may coordinate social events and discuss the game itself at work. Betting on the outcome (such as through workplace pools) also may occur in the office or plant.

While employers can maximize the game’s positive effects on workplace morale, they should think about the following:

Is Gambling Permitted at Work; Applicable Limitations?

Before deciding whether to sponsor or permit office pools, employers should examine their state law.

Even in the post-Murphy era, sports betting is still currently considered to be illegal in 42 states. With an increase to nearly $6 billion in wagers expected to be made on this year’s Super Bowl, only about 10% is expected to be made through the legal gambling options now available.

It is important for all employers to remember that gambling, including intra-office gambling, is generally illegal.

Some states, including Florida, have a statutory prohibition against gambling activities when “real money” changes hands. The Florida law specifically provides, “whoever sets up, promotes or plays at any game of chance … for the disposal of money or other thing of value … shall be guilty of a misdemeanor of the second degree,” Fla. Stat. Section 849.11. If employers conduct business in a state in which workplace gambling is potentially illegal, such as Florida, they should notify their employees that the gambling activity is expressly prohibited and that employees will be disciplined if they engage in such prohibited conduct on the job.

Despite this general restriction, some states make an exception for “informal” or “social gambling.”

While the definition varies, social gambling usually occurs in a strictly social context, where the persons involved know each other beforehand and no profit is made. (The NFL’s copyright of the Super Bowl game prohibits third parties from charging admission to view the contest.) In most states that recognize this, betting among friends and colleagues would fall within the social-gambling exception. While office pools may be permitted in certain states under these circumstances, some state laws may limit how much prize money, if any, can be awarded. Gift certificates to restaurants and gym memberships may be safer prizes rather than the employer condoning the exchange of money in the workplace. Further, if there is a pool in the workplace, employers should ensure everyone understands that participation is completely voluntary, and that no negative action will be taken if an employee chooses not to participate. Once again, it is imperative that you check your state or local laws before authorizing any type of office gambling activity.

Jackson Lewis P.C. © 2019

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About this Author

Gregg E. Clifton, Collegiate Sports Attorney, Jackson Lewis, disciplinary hearings Lawyer
Office Managing Principal

Gregg E. Clifton is Office Managing Principal of the Phoenix, Arizona, office of Jackson Lewis P.C. He is Co-Leader of the Collegiate and Professional Sports Practice Group and serves as one of the editors of the firm’s sports law blog.

Mr. Clifton has extensive experience in the collegiate and professional sports world. He has advised numerous professional franchises on general labor and employment issues, including Title III ADA regulatory compliance and wage and hour issues. He serves as lead counsel for several Major...

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Associate

Thomas L. Petriccione is an Associate in the White Plains, New York, office of Jackson Lewis P.C. His practice focuses on representing employers in workplace law matters, including preventive advice and counseling.

Mr. Petriccione also assists organizations on items such as employee handbook policies and family leave law matters.

While attending law school, he was a Notes and Articles Editor of the Fordham Intellectual Property, Media & Entertainment Law Journal and participated in the Mediation Clinic.

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