One Shining Moment – Are NCAA Pools Illegal in Texas?
Spring in Texas brings Southern California-like weather, crawfish, and March Madness. While collegiate athletes across the country fight for the ultimate prize, husbands, wives, employees, employers, and friends, fight for NCAA bracket bragging rights and often times cash prizes.
But are NCAA pools illegal in Texas? Possibly.
The Texas gambling statute can be found in Texas Penal Code Section 47.02 which states, in part:
(a) A person commits an offense if he:
(1) Makes a bet on the partial or final result of a game or contest or on the performance of a participant in a game or contest;
(b) It is a defense to prosecution under this section that:
(1) the actor engaged in gambling in a private place;
(2) no person received any economic benefit other than personal winnings; AND
(3) except for the advantage of skill or luck, the risks of losing and the chances of winning were the same for all participants.
A NCAA pool seems to meet the elements of subsection (a)(1). However, subsection (b) does provide statutory relief if all three elements are met.
As to subsection (b)(2) it is unlikely any person is receiving or will receive any economic benefit, other than personal winnings. A “rake” is a percentage of the overall entry fees. If your buddy is taking a “rake” on the pool he organized then you need new friends.
In regard to subsection (b)(3), the excitement of March Madness is predicated upon the unknown. Hence the name, March Madness. In other words, the risks of losing and the chances of winning are the same for all participants.
Subsection (b)(1) is where the gray area lies. What is a “private place”?
Texas courts have held a poker room, tucked away in a public restaurant, surrounded by ropes and bouncers, was not a private place. However, an invite only e-mail, to a private online tournament room, could be considered a private place.
So if you received a private email to participate in a bracket pool you may have a valid defense in Texas.
Regardless, the odds of facing criminal charges for participating in a NCAA pool are slim. The odds of a jury actually convicting you are even more slim. In all likelihood the officers and jurors are NCAA pool participants as well. Such has become part of our culture.
The greater concern may be the estimated billions companies stand to lose for each unproductive work hour during the weeks of March Madness.
So while your office pool may technically be illegal, I wouldn’t lose sleep worrying if the police are going to break down your front door and haul you off.