Analysis: What Comes Next In Florida Sports Betting Lawsuit

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Florida sports betting

Potential Florida sports betting customers got great news when the D.C. Circuit Court of Appeals ruled in favor of the Department of the Interior and held that the District Court erred when it threw out the 2021 compact between Gov. Ron DeSantis and the Seminole Tribe of Florida.

While the Court of Appeals did not issue the sweeping decision that supporters of tribal gaming were likely hoping for by declaring that the Indian Gaming Regulatory Act (IGRA) permits states and tribes to compact directly for mobile wagering, it creates a strong likelihood for the return of online FL sports betting to the Sunshine State at some point in the future, perhaps even before the start of NFL betting.

Even if Florida sports betting returns, that is likely not the last that we hear about the challenge to the 2021 compact from South Florida gaming magnates West Flagler Associates.

Catching up on Florida compact case

The D.C. Circuit Court of Appeals ruled June 30 that the 2021 compact between DeSantisi and the Seminole Tribe did not have to be rejected by the Secretary of the Interior when it was sent for review. West Flagler Associates had argued that the compact was incompatible with IGRA, and also argued it ran afoul of several other federal laws as well. They contended because of that, the Secretary of the Interior had the affirmative obligation to reject the compact.

The Secretary of the Interior neither expressly approved nor rejected the 2021 compact. Instead, it came into law by virtue of 45 days elapsing after it was submitted for review.

West Flagler Associates challenged the validity of the compact, an argument that the district court in the District of Columbia agreed with. However, on appeal, the district court’s decision was overturned.

What Florida sports betting ruling said — and did not

The broader question lingering in the air surrounding the most recent Florida compact was whether IGRA permits states and tribes to compact for mobile wagering that extends beyond tribal lands.

One popular theory has been that a mobile bet takes place where the servers are located. Florida argued successfully that while the compact with the Seminole Tribe of Florida discusses statewide mobile wagering, the compact only authorizes gaming that takes place on tribal land.

The Court effectively punted on the legality of the question to Florida courts, saying that they are best suited to determine whether the 2021 compact violates the Florida Constitution.

Accompanying the decision was an order from the Court of Appeals that pauses the issuance of the mandate until seven days after the disposition of a petition for rehearing, or a rehearing en banc.

What does court order mean?

The order that accompanied the judgment effectively means that sports betting will not be returning to Florida until seven days after the D.C. Court of Appeals addresses any petition for a rehearing or a rehearing en banc (a rehearing before all the judges on the D.C. Court of Appeals Circuit.) Both of these things are rarely granted, but here is how they break down.

Both a rehearing and a rehearing en banc are covered by different rules under the Federal Rules of Appellate Procedure.

A petition for rehearing is covered by Rule 40 and requires that the petition be filed within 14 days unless the United States (or a federal agency) is a party, in which case there are 45 days to file. While 45 days may seem like a long time, the petitions are short, and responses are typically not allowed, though it is within the Court’s power to allow one.

A petition for a rehearing en banc is covered by Rule 35 and it follows the same timelines as a Rule 40 rehearing. Rule 35, similarly, does not generally allow a response.

How else FL sportsbook app return could be affected

All this adds up to a schedule that pushes toward the end of August for an optimistic timeline for the return of online sports betting to Florida. The Court of Appeals could take its time to rule on a petition potentially stretching out the timeline.

West Flagler could also file a petition in under 45 days, which could shorten the timeline.

Other possibilities for sports betting in Florida

While many are expecting West Flagler Associates to go the rehearing route, the group could alternatively decide to go straight to the top and petition the US Supreme Court for a writ of certiorari. Parties have 90 days to file their petition at the Supreme Court. Whether the Supreme Court would grant an injunction stopping the relaunch of online FL sports betting while the case plays out is unknown.

The other alternative (beyond simply packing it in) would see West Flagler Associates fold its cards at the federal level and instead attempt to proceed at the state court level, challenging the compact under Florida law.

Ultimately, in looking at the possibilities, it appears likely that West Flagler Associates is most likely to file a petition for a rehearing of one sort or the other, likely towards the end of the time window. If that is unsuccessful, it could potentially petition the Supreme Court.