Special Super Bowl Edition of the Conflict of Interest Blog

While the NFL’s code of conduct for fans doesn’t mention COIs (it is more about not throwing objects on the field.) the Super Bowl is a perennial source of COI issues.  Indeed, Super Bowl tickets received by a US Secretary of Agriculture from a company his department regulated played a central role in a major COI prosecution in the 1990’s – although the Secretary was acquitted and the company’s conviction on a related matter (involving US Open tickets, among other things) was overturned by the Supreme Court.

The case evidently didn’t put an end to government officials getting Super Bowl tickets from those with whom they have official business.  As noted in this post last year by Judy Nadler, senior fellow in government ethics at the Markkula Center for Applied Ethics: “I spoke with a reporter recently who was writing about gifts elected officials were taking but not disclosing. More troubling, many of the officeholders said they ‘couldn’t remember’ whether or not they had gone to the Super Bowl courtesy of a major business interest.”  (Easy to see how one could forget that!)

More common, though, is a business providing Super Bowl tickets to individuals in the private sector, particularly to customers.  Indeed, Super Bowl tickets are frequently the subject of discussions in codes of conduct.  For instance, the Home Depot’s code provides, in relevant part: “In the event that the recipient is willing to pay face value for a ticket or other gifts and entertainment, when in fact the market value is significantly higher than the face value (e.g. Super Bowl or Masters Tournament tickets), the associate must still have the item approved in advance in accordance with this policy.”

As with many COI issues, the devil is in the details regarding the propriety of giving or receiving Super Bowl tickets, and here are a few questions to ask in deciding whether to give:

-Would someone from your company attend the event with the potential recipient or would it be an out-and-out gift?

– What does the recipient’s company’s policy say about gifts and entertainment?

– Does the recipient’s supervisor know about the offer?

– What is the function of the proposed recipient in her company?  (Purchasing, of course, is most obvious from a risk perspective, but others – e.g., an external auditor or even supplier in some instances –  could raise COI risks, too.)

– What is the state of play in terms of new/existing business with the recipient’s company?

– What other costs  (e.g. air travel) would be borne by your company in connection with attending the event?

– Is the recipient an employee of a government agency (including a state-owned enterprise)? Even if not, do they do business with the government – which, in some instances, might be risk causing at least from a reputational perspective?

Finally, two questions about process:

– Is the decision of whether give or not to give reviewed by the compliance officer or other function (e.g., law department) that is independent of the part of the business proposing the invite?

– Are the bases for decisions sufficiently documented?

But, all this is for next year. For now, just enjoy the game!  And, go Giants!  (Disclosure: I’m from NJ.)