As More States Legalize Sports Betting, Unlicensed Super Bowl Squares Pools Become Riskier

With Super Bowl 56 less than two weeks away, many NFL fans are probably thinking about hosting Super Bowl squares pools for their friends, business colleagues, or perhaps even a broader audience.

However, even though nearly half the states in the U.S. have legalized some form of licensed sports betting, it remains illegal in most states for a private individual, without a betting license, to operate a Super Bowl squares pools over the Internet. In addition, unlicensed individuals who host their own sports betting contests over the Internet are likely to gain the wrath of licensed operators — increasing the likelihood, depending on the nature of the unlicensed contest, of this getting authorities’ attention.

It has now been roughly 3 1/2 years since the U.S. Supreme Court reached its seminal decision in Murphy v. National Collegiate Athletic Association, in which the high court struck down the Unlawful Internet Gambling Enforcement Act for violating the anti-commandeering clause of the U.S. Constitution. Since then, many states — including recently New York — have passed new laws to legalize and regulate sports gambling.

Yet, whereas many states have begun to license sports betting operators, no state to date has coupled new sports betting laws with increased decriminalization of the offering of sports betting contests by non-licensed parties. Thus, as a matter of black-letter law, most unlicensed Super Bowl squares pools would still constitute illegal lotteries because they entail three elements: consideration (generally an entry fee), prize and chance.

Moreover, even though states traditionally exercise reasoning discretion when investigating or prosecuting Super Bowl squares pools, hosting certain types of contests remains especially risky. For example, if a Super Bowl squares contests involves the general public rather than a close group of friends, advertises over the Internet, or involves an unusually large sum of money, the contest becomes increasingly likely to face legal challenge.

As a result of this current legal landscape, while it may be fun to participate in a Super Bowl squares pool, it would probably be wise to avoid being the person to host the squares pool or collect money this Super Bowl season—especially if the amount involved is more than just a de minimis amount. And if you do not have a close group of friends to join you in playing Super Bowl squares, it would be far wiser to just join one of the contests hosted by a licensed and regulated sports betting operator in your home state than to launch your own contest and attempt to advertise it to strangers on the web.

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Marc Edelman ([email protected]) is a Professor of Law at Baruch College’s Zicklin School of Business and the founder of Edelman Law. He recently authored the George Mason Law Review article entitled, “Regulating Sports Gambling.” Nothing contained herein should be considered legal advice.