Opinion: More Legal Fighting Likely Ahead in Florida
Legal Sports Report

Florida Sports Betting Efforts Not Finished As Governor, Tribes Continue Talks

Florida sports betting

Is it time to get excited about Florida sports betting?

Probably not.

Florida is known for many things: beaches, oranges, Florida Man, and more recently, getting people excited about the possibility of sports betting coming to the Sunshine State.

Florida sports betting talk has been relatively quiet since the November election and the passage of Amendment 3. That will require voters to authorize new casino gambling in the state, which makes the recent news about a possible new compact exciting.

Reasons for FL sports betting optimism

Governor Ron DeSantis met with a large contingent of the state’s gaming stakeholders on April 26. The meeting followed a discussion between the DeSantis and Seminole Tribe of Florida Chairman Marcus Osceola, CEO of Seminole Gaming Jim Allen, and the Seminole Tribe’s General Counsel, Jim Shore.

The gaming summit appears to have been initiated by the governor, which might be a positive sign for negotiations moving forward that could reportedly include legal sports betting being part of a compact renegotiation and/or gaming expansion.

Barbara Havenick, representing her family who owns pari-mutuel facilities in Miami-Dade County, was quoted by the Florida News Service as stating:

“…It’s the first time since I’ve been involved that he’s gotten this whole group together. There’s never been a time that the industry’s been together and hasn’t wanted to kill itself.”

So the fact that the parties are at the table talking is a positive, one that has not been present during some more recent negotiations between the Seminole Tribe and the state’s representatives. After all, the first compact negotiations took 20 years before an agreement was reached.

What could be in a deal?

There is a new proposal for a 31-year deal between the state and the tribe. The current deal, which was signed in 2010, is a 20-year deal that isn’t half over yet.

Amongst the topics purportedly discussed was allowing Seminole Tribe casinos, as well as non-tribally operated Florida racetracks and jai alai facilities (frontons), to offer sports betting.

The plan seems to be to allow the tribe, via the casinos, to act as a “hub” for Florida sports betting statewide, which may indicate a potential need to register in-person at a casino.

As we noted back in November, this was the most likely path forward for sports betting in Florida.

Big reasons to slow your roll

Just a week before his meeting with stakeholders, DeSantis questioned whether in-play betting posed integrity risks. But far bigger than the mechanics of what type of sports betting offerings the state would have is the fact that the Seminole Tribe and state of Florida have bickered over the compact frequently since it was approved.

Most prominently, the state and the Seminole Tribe, who on the backing of a ruling by a federal judge, argued that the state allowing pari-mutuel facilities to offer so-called designated player card games violated the tribe’s exclusivity over banked card games (e.g. blackjack.)

The tribe and the state reached a settlement in 2017, which provided for the tribe to continue making payments of $350 million a year to the state until May 31.

It’s also important to note that the meeting between DeSantis was not limited to Florida sports betting, and much of the conversation appears to have been focused on the state’s horse racing industry.

Clock is ticking for Florida sports betting

Perhaps the biggest barrier against something happening soon is that there is about a week left in this legislative session, and the possibility of a special session appears somewhat distant at the moment (while subject to change, and quickly).

The governor’s office appears to be in an exploratory or educational phase with regards to gaming issues, and while possible, there is little indication that this is an issue that he will seek to fast-track before the end of the session.

Another wrinkle

Early in April, No Casinos In Florida sent a letter to Florida House Speaker Jose Oliva and Senate President Bill Galvano, voicing their opposition to the proposition of expanding sports betting to Florida.

The organization retained Tallahassee-based lawyer Paul M. Hawkes to draft a legal opinion on the potential expansion of sports gambling into the Sunshine State in the wake of Amendment 3 passing.

The opinion letter begins by arguing that the legislature cannot authorize FL sports betting, absent voter approval, as sports betting falls within the definition of “casino gambling.”

In fact, the Hawkes opinion letter appears to even argue that Amendment 3 precludes the state from entering a new compact with the Seminole Tribe that would authorize sports betting without the approval of 70 percent of state voters.

What to make of this FL sports betting news

This argument, while persuasive, does raise a potentially interesting question about one of the exceptions to Amendment 3:

Nothing herein shall be deemed to limit the right of the Legislature to exercise its authority through general law to restrict, regulate, or tax any gaming or gambling activities.

In addition, nothing herein shall be construed to limit the ability of the state or Native American tribes to negotiate gaming compacts pursuant to the Federal Indian Gaming Regulatory Act for the conduct of casino gambling on tribal lands, or to affect any existing gambling on tribal lands pursuant to compacts executed by the state and Native American tribes pursuant to IGRA.

The question of whether a so-called repeal and replace approach may work —  hat tip to the landmark Murphy case for the idea — to evade the arguments raised by Hawkes is uncertain. Under a repeal and replace action, the state would repeal their bans on sports betting, something that is not an authorization (flashbacks anyone?), and then effectively restrict where and who can conduct these activities.

Is this a workable solution? Maybe, maybe not. It is likely to end up in court if the state decides to attempt to pull it off (DeSantis I?).

So is Florida sports betting coming soon?

It remains unlikely that FL sports betting is coming soon. While there have been some positive steps forward, the relationship between the legislature and gaming stakeholders in the state has been historically tenuous and it is not likely that much has changed.

The Hawkes letter is interesting and advances some persuasive arguments. Given that the Seminole Tribe were the ones who pushed for Amendment 3 and are one of the best legally represented groups in the country, it would seem to be incredibly shortsighted that in a period of six months, they would throw nearly $25 million behind the amendment that ends up blocking something they want. Again, it is not clear how bullish the Seminole Tribe is on sports betting.

If for no other reason than they were the primary backers for Amendment 3, it is likely that the Seminole Tribe (and the state) believe that the exemption in Amendment 3 is broad enough to let them negotiate to have the games they want. Otherwise, Amendment 3 would have been a very costly mistake.

Despite this, even if a new agreement is reached, do not expect it to come into force without a legal fight.

John Holden
- John Holden J.D. / Ph.D. is an academic. His research focuses on policy issues surrounding sports corruption.
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