One of Yogi Berra’s most famous sayings is “It ain’t over til it’s over.” When it comes to the status of sports betting combatants in Florida, it seems more than apropos. The Seminole Tribe is king of the gambling jungle in the state. But for the moment, sports betting is still in play.
The Seminole Tribe and the state of Florida agreed in June 2021 to a compact that made the Seminoles the hub in a hub-and-spoke model hosting statewide online sports betting where only the server is on tribal lands. The sports bets are made off tribal lands. Interior Secretary Debra Haaland did not sign the compact, but rather let a 45-day window expire after which the compact was considered approved. The system went into operation for about a month before legal action put an abrupt stop to it.
West Flagler Associates, one of the few commercial gaming companies in Florida without a Seminole in its corporate name, filed a lawsuit against Haaland for letting the compact pass muster despite wagering taking place outside of Indian land.
In November 2021, Federal District Court Judge Dabney L. Friedrich ruled that the compact had indeed violated the Indian Gaming Regulatory Act (IGRA) which requires gambling to be located on tribal land.
But the D.C. Circuit Court of Appeals by unanimous agreement overturned that ruling June 30, saying the District Court erred in invalidating the Seminole compact.
Think that was the end of it? Think again.
On August 14, West Flagler filed a petition for a rehearing en banc with the D.C. Circuit Court of Appeals. If accepted, all 11 judges in the circuit would rehear the case. The odds clearly don’t favor West Flagler, especially since the prior decision was unanimous.
Seminole spokesperson Gary Bitner issued the following statement indicating the unlikelihood of a rehearing:
“It’s important to note the three-Judge panel of the U.S. Court of Appeals for the District of Columbia Circuit issued a unanimous decision in favor of the U.S. Department of the Interior, which approved the Gaming Compact between the Seminole Tribe and the State of Florida.”
In the 63-page filing for rehearing written by attorney Hamish Hume of Boies Schiller Flexner LLP, plaintiffs argued that the opinion raises questions of exceptional importance regarding the scope of IGRA and conflicts with precedent from other circuits.
“The opinion is erroneous and will create confusion, and thus rehearing is warranted. … The net effect of the opinion is that a tribe and state may now contract to give the tribe a statewide monopoly on gaming off Indian lands so long as some of the gaming also occurs on at least one square foot of Indian land,” the filing said.
But precedent goes back to a Supreme Court decision in the case of Michigan vs Bay Mills. The 2014 ruling concluded that “Everything—literally everything— in IGRA affords tools … to regulate gaming on Indian lands, and nowhere else.”
The D.C. Circuit determined otherwise.
“The opinion departs from this prior case law by holding that a tribe and state may use the IGRA process to obtain Secretarial approval of a compact purportedly authorizing a tribe to conduct gaming statewide, i.e., predominantly off of Indian lands,” the D.C. ruling said. “It says the Secretary may provide such approval even where the law of the state prohibits the type of gambling in question if conducted off of Indian lands.”
Florida gaming lawyer Daniel Wallach told PlayUSA that he thinks there is cause for a rehearing, but it won’t happen after a unanimous decision in June. If he’s right, he expects a decision by mid September, a week after the NFL season begins.
“I expect the D.C. Circuit to take action on this petition without needing a response from the Department of the Interior or the Seminoles,” Wallach said.
If West Flagler does not get the rehearing, it still has options, believe it or not. It would have 90 days to petition the Supreme Court to review the case. And they have the option to take it through state court. In its June decision, the D.C. Circuit mentioned: “Whether it is otherwise unlawful for a patron to place bets from non-tribal land within Florida may be a question for the state’s courts.”
Remember, seven of the current justices were members of the Supreme Court that struck down the Professional and Amateur Sports Protection Act in 2018, minting the legalization of sports betting as states-rights issue. The court took up two cases involving Native Americans in the most recent sessions and those types of issues are seen as of keen interest to Justice Neil Gorsuch.
“I have a feeling the Supreme Court might take it up,” Baird Fogel, co-head of the Global Sports Practice at Eversheds Sutherland, told Gaming Today before West Flagler requested the en banc hearing. “It seems to be kind of pro-business court. I have a feeling that the Supreme Court may grant cert on this and take it up if [West Flagler] were to be so bold. But again, it’s a major cost.”
While West Flagler considers its moves, Wallach said the Seminoles can flex their considerable muscle and relaunch sports betting any time and make someone force them to shut down.
Under the terms of the compact, the Seminoles would be operating statewide digital sports betting under a hub-and-spoke model, which does not exist anywhere else in the U.S. The tribe would pay the state $2.5 billion over the first five years of the compact, and potentially more after that time frame.
At this point, West Flagler attorney Hume is arguing against Haaland having the power to approve a compact for gaming off tribal land or that “grants a monopoly.”
Hume called the compact a “ruse” and an “abuse of IGRA,” and also argues that the compact attempts to circumvent Florida’s Amendment 3, which requires that any expansion of gaming be decided by the state’s voters.
The Seminoles had also negotiated the right to offer retail sports betting, craps, and roulette in that compact, but never did.
