Did you think your days of reading about the legal ins and outs of sports wagering, tribal gaming law, and the Florida constitution were over? Well, think again!
Yes, even though sports betting is happening right now in Florida at the Seminole Tribe’s casinos, over the internet using the Seminole Tribe’s Hard Rock Bet app, and all with the blessing of the state government, there are still legal bids that could shut it all down.
The odds of that happening are slim, but they are not zero. They were also kept alive last week as two Florida gaming firms requested the U.S. Supreme Court hear their case, something the judges only do for around 1% of the petitions they receive each term.
West Flagler Associates Ltd. and Bonita-Fort Myers Corp. (which are both wholly owned by Southwest Florida Enterprises Inc.) are seeking to scuttle federal government approval of a gaming compact between the state of Florida and the Seminole, which the tribe is now relying on to offer sports wagering and additional casino games.
To that end, the pari-mutuel operators (which compete for gambling business with Hard Rock and who are also trying to put a stop to Florida’s current sports betting set-up using the Sunshine State’s Supreme Court) filed their writ of certiorari to the U.S. Supreme Court last Thursday (although it was only officially docketed this Monday), seeking a review by the country’s top judges.
Setting a bad example?
Among many other things, the West Flagler group says the Supreme Court’s intervention is needed to ensure others do not follow Florida’s example.
“As different jurisdictions make different decisions regarding the legality of sports betting, it is critical that this Court not allow the unlawful approach taken by Florida to become a model, or for the D.C. Circuit decision to create confusing and misleading precedent,” the writ states. “The Court should grant certiorari to ensure clarity in the law regarding the scope of [the Indian Gaming Regulatory Act, a.k.a. IGRA] and [the Unlawful Internet Gambling Enforcement Act], and to make clear that providing a statewide gambling monopoly to an Indian tribe while making the conduct a felony for all others is unconstitutional.”
The West Flagler group argues three questions would be very worthwhile for the Supreme Court to answer:
- "Whether IGRA authorizes the approval of a compact that purports to allow for an online sports gambling monopoly throughout the state and off Indian lands."
- "Whether an IGRA compact violates the Unlawful Internet Gambling Enforcement Act [which prohibits gaming operators from knowingly taking payments tied to illegal online gambling] if it provides for internet sports betting that is unlawful where many of the bets are placed."
- "Whether the Secretary’s approval of a tribal-state compact violates equal protection principles where it provides a specific tribe with a monopoly on online sports gaming off tribal lands, while state law makes that conduct a felony for everyone else."
It’s the latest legal filing in more than two years of courtroom battles over the legality of Florida’s sports betting system. At stake is what is now the biggest market for online sports betting in the U.S., although that market could conceivably close again if another court were to throw out the compact between Florida and the Seminole Tribe.
The Seminole initially launched online sports betting in Florida via Hard Rock in the fall of 2021 before shutting it down following a court decision invalidating federal approval of the state-tribe gaming compact.
It wasn’t until after a federal appeals court reversed that decision in mid-2023 that the tribe relaunched Hard Rock Bet in November.
3/ @HardRockBet's FL OSB monopoly has been transformative, with HRB the 4th most dowloaded OSB app during Super Bowl week. It even narrowly beat out @ESPNBet in terms of download totals, per Sensor Tower
— Chris Krafcik (@ckrafcik) February 12, 2024
West Flagler and its allies previously had a deadline of Dec. 10 to file their petition for a writ of certiorari (a.k.a. the Supreme Court bat signal) regarding the lower-court ruling. The companies then asked for and received an extension until this past Thursday.
They had also tried to stay the appeal-court decision that allowed Hard Rock to return to action in Florida, but that bid was rejected by the U.S. Supreme Court last year. However, in responding to the stay request, one of the Supreme Court judges provided some cause for optimism about a review.
Justice Brett Kavanaugh said the state law involved in the case does raise "serious equal protection issues" to the extent it authorizes the Seminole Tribe alone to conduct certain gaming operations in Florida off of its tribal lands.
Deemed if you do
Nevertheless, the main issue in the courts has been the inclusion of statewide online sports betting for the tribe and whether that goes beyond what the federal government can approve, as Floridians can now wager from anywhere in the Sunshine State, not just on Seminole lands.
The West Flagler group contends that the federal IGRA only authorizes the interior secretary to approve a compact governing gambling on tribal lands. The Florida-Seminole compact states online sports wagering taking place off tribal lands is still deemed to take place there, which the companies say is to dodge Florida law.
“This fiction was adopted to deem the Compact to be solely dealing with gaming on Indian lands, and thereby to circumvent a Florida constitutional ban on the expansion of casino gaming absent a citizens’ referendum, except for casino gaming covered by a valid IGRA compact for gaming ‘on tribal lands,’” the West Flagler application for an extension states. “In short, Florida gave the Tribe a statewide monopoly over the business of online sports gaming, to be offered off Indian lands throughout the state, while making the same conduct a felony when done by anyone else.”
The United States Court of Appeals for the District of Columbia Circuit disagreed with West Flagler’s assessment of the situation, saying in its June 30 decision that IGRA does not prohibit a gaming compact from discussing activities off tribal lands.
“Rather, the Compact itself authorizes only the betting that occurs on the Tribe’s lands; in this respect it satisfied IGRA,” the appeals court ruling stated. “Whether it is otherwise lawful for a patron to place bets from non-tribal land within Florida may be a question for that State’s courts, but it is not the subject of this litigation and not for us to decide.”
Care to chime in?
Yet the West Flagler group argues there are lingering issues that need to be addressed by the U.S. Supreme Court, even as they await a decision from the Florida Supreme Court regarding those state-level matters.
“Thus, certiorari is warranted because each of the three federal questions presented by this Petition, which are not currently before the Florida Supreme Court, are of massive importance for the future of online gaming across the country—and can only be conclusively resolved by this Court,” the petition states.
Following the filing of the writ, the federal government now has 30 days to respond to the West Flagler petition. It typically takes the Supreme Court, according to the court itself, about six weeks to act on a petition.
