The Supreme Court granted a brief stay Thursday following an application by West Flagler Associates to delay the implementation of the D.C. Court of Appeals mandate that would have allowed the Seminole Tribe to relaunch its Hard Rock Bet product for Florida sports betting.
The application that was made to Chief Justice John Roberts was granted; every Supreme Court Justice has responsibility over an assigned Court of Appeals to handle things like emergency applications. The order stays, or stops, the D.C. Circuit Court of Appeals mandate from taking effect until the Supreme Court issues a new order.
The earliest that could be is Wednesday, which is when a response from the Department of the Interior is due. However, there is a reasonable chance that the Supreme Court will keep the order in place until it makes a ruling on West Flagler’s forthcoming petition for the Supreme Court to rehear the case.
What is in Florida sports betting order?
The order signed by the Chief Justice puts a pause on the re-launch of Florida sports betting, though it was not clear where exactly the Seminole Tribe, or its Hard Rock Bet product team stood on a re-launch. The text of the order is a mere two paragraphs:
UPON CONSIDERATION of the application of counsel for the applicants,
IT IS ORDERED that the mandate of the United States Court of Appeals for the District of Columbia Circuit, case No. 21-5265 (consolidated with 22-5022), is hereby recalled and stayed pending further order of the undersigned or of the Court. It is further ordered that a response to the application be filed on or before Wednesday, October 18, 2023, by 5 p.m., EDT.
All this sets up to mean that the Department of the Interior is expected to file a response to the application by October 18. This is not, however, going to result in a ruling on whether the Supreme Court will hear the actual case. However, should the Supreme Court issue an order allowing the mandate to come into effect after the response, letting the Seminole Tribe of Florida re-launch, it would likely be a favorable indication that the Court does not anticipate hearing the case on the merits.
Application argues three points
While not visible on the Supreme Court’s website until October 12, West Flagler Associates filed the application for a stay six days earlier.
The application asks the Court to issue an order that stops the D.C. Circuit Court of Appeals order from coming into effect, thereby stopping the Seminole Tribe of Florida from relaunching sports betting until after the Supreme Court weighs in on West Flagler’s forthcoming petition.
Why grant a stay?
West Flagler argues that the Supreme Court should grant a stay for three reasons.
The first would be most injurious to the short-term hopes of a relaunch in Florida, and that is that the petitioner (West Flagler) believes there is a strong likelihood that the Supreme Court will agree to hear the case. This will require four of the nine judges on the Supreme Court voting on the forthcoming petition that there is a question of significant importance that they should hear the case.
The petitioner argues firstly that the case involves issues of national importance regarding the ability of Tribe’s to compact under the Indian Gaming Regulatory Act (IGRA) to “legalize gaming off Indian lands.” West Flagler argues that the D.C. Circuit’s decision creates both a split amongst the lower courts in how IGRA is viewed, and that the D.C. Circuit’s decision conflicts with the Supreme Court’s ruling in the 2014 Bay Mills case, which held that tribal sovereign immunity shielded Tribes from state gaming regulatory efforts with express consent or abrogation of sovereign immunity by Congress.
Not just about tribal gaming law
West Flagler doubles down in the application that not only do they have an expectation that the Supreme Court will grant certiorari (agreeing to hear the case,) but that the Court will find at least five votes to overturn the Court of Appeals decision. While the bulk of the argument is focused on the permissibility of the 2021 Compact under IGRA, the group also argues that the Compact violates the Unlawful Internet Gambling Enforcement Act (UIGEA) and the Equal Protection guarantees of the Constitution.
The argument portion concludes by arguing that without a stay, there will be a seismic shift in Florida where “non-tribal entities offering legal gaming will be harmed by competing with the Tribe’s unlawful monopoly.” The crux of the irreparable harm argument centers on a first-mover advantage that the Seminole Tribe would have, which could stop other private operators from being competitive in the market.
What comes next in Florida sports betting case?
In the immediate wake of the Chief Justice’s order, we can expect a response from the Department of the Interior on Wednesday. Following that, all eyes will turn to the Supreme Court’s orders list to see if the order blocking the relaunch of Florida sports betting stays in place.
If that proves to be the case, it may be an indication that the Supreme Court buys what is being sold in the application for a stay, and seems to preview what is to come in the forthcoming petition.
While the odds are stacked against West Flagler Associates (statistically the Supreme Court typically hears less than 5% of the cases for which they receive petitions,) there does appear to be a possibility that the case piques the interests of four members of the Court. What this translates to for Florida sports bettors is, of course, more waiting.
