Analysis: How Florida Sports Betting Could Come Back After Tribal Compact Decision

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Florida sports betting

The day has finally arrived that Florida bettors have been waiting for since late 2021 when the lights were turned off at the state’s only regulated sports betting shop.

On Friday, the DC Circuit Court of Appeals gave the residents of the Sunshine State a gift when the Court unanimously overturned a District Court decision that had blocked regulated FL sports betting. The Circuit Court kept to its median wait time of six months in issuing the decision on the last day of June after hearing oral arguments in December 2022.

While the decision is a huge win for sports bettors in Florida, as well as the Seminole Tribe of Florida and those who benefit from the revenue-sharing agreement that is part of the 2021 compact, the decision ducked some of the bigger issues circulating out there around the Indian Gaming Regulatory Act (IGRA), as well as furthering precedent regarding the Seminole Tribe’s efforts to intervene in the case.

Weak denial leaves questions

While the case is definitely a win for sports bettors in Florida and monetarily will be a financial windfall for the Seminole Tribe of Florida if it stands, it was not all sunshine, rainbows, and lollipops for the Seminole Tribe of Florida, and Tribal gaming operators more broadly.

The Circuit Court did deny the tribe’s motion to intervene, though with some strong qualifying language that may limit the precedential effect of the decision.

The Court noted that it does not take the tribe’s interests lightly, but in this “unique” circumstance “any infringement on [its sovereign] immunity is ‘remote’ and ‘theoretical.’”

Digging in on compact decision

On the surface level, this is a resounding victory for the Seminole Tribe of Florida. The decision is not only unanimous capturing the affirmative votes for reversal of all three members of the appellate panel, but the decision is also brief.

Coming in at 24 pages, the decision really gets to the point and could even lead some to ask what took so long, given how quickly the Court was able to address the issues here.

The opinion was authored by Judge Robert Wilkins, a 2014 Barack Obama appointee. Wilkins framed the question being asked of the appellate court as follows:

The Plaintiffs in this case, brick-and-mortar casinos in Florida, object to the Secretary’s decision to allow the Compact to go into effect because in their view, it impermissibly authorizes gaming outside of Indian lands, violating IGRA. They also believe that the Compact violates the Wire Act, the Unlawful Internet Gambling Enforcement Act, and the Fifth Amendment, and that the Secretary was required to disapprove
the Compact for those reasons as well.

Wilkins further notes that the Court was tasked with also addressing the Seminole Tribe’s motion to intervene on a Rule 19 basis.

Disagreement on IGRA

The Court of Appeals opens its analysis by bluntly stating that it disagrees with the plaintiff’s framing of the case and states that while IGRA only permits a gaming compact to allow gaming on lands that belong to a Tribe, nothing in IGRA forbids a state and a tribe from including other subjects in the Compact, which by its nature is a contract.

The Court of Appeals further notes that IGRA expressly allows for the inclusion of other topics ,particularly to the extent those matters deal with gaming.

Into the weeds

The Court focused on the questions raised by the plaintiff with regard to the Secretary of the Interior‘s obligations to act within the 45-day window to approve or disapprove the compact under the Administrative Procedure Act.

The Court effectively says here that while IGRA does not allow gaming to be authorized off of tribal lands, it does not prohibit discussion of gaming that takes place off tribal lands, as the Florida Compact does. Therefore the Secretary’s obligation to disallow the Compact was never triggered.

Florida sports betting question

The Court essentially punts on the biggest question surrounding the permissibility of the compact, saying that questions about whether it complies with the Florida Constitution are not questions for a federal court or agency. Instead they are questions for a state court to resolve.

In other words, if the Florida Constitutional Amendment prohibiting gaming expansion without a referendum is triggered by the 2021 compact, Florida courts are the appropriate place to raise that question.

What does it mean for Florida sports betting?

This means that the Hard Rock Sportsbook brand could be back up and running in Florida imminently. From a legal perspective, though, this is unlikely the end of the road for this case.

The plaintiff has a few remaining options. While West Flagler could elect to pack it in and go home, that seems like the most unlikely scenario. Alternatively, the company could seek a rehearing en banc, in front of the entire Circuit Court. This is an exceedingly rare event, but there is likely little to lose for the plaintiff in checking that box.

The plaintiff could also petition the Supreme Court for certiorari and argue that the case merits review at the nation’s highest court. Again, Supreme Court review is permissive instead of mandatory and the odds are stacked against the petitioner. The plaintiff could also choose to fight the case out in state court.

In the coming weeks, we will get a clearer sense of what is the next step.