Although farther along than many ever thought it would get, Florida sports betting still has a journey to travel.
With news that Governor Ron DeSantis signed off on the new compact between the State of Florida and the Seminole Tribe of Florida following a special session of the Florida legislature, that means that the compact’s next stop is a trip up I-95 for review by the federal Department of the Interior.
The key question that many around the country are watching intently is whether the Department of the Interior will sign off on the Compact’s mobile sports betting provision. Though, hardly the first state to reach an agreement with tribes to offer sports betting in FL via the internet and on mobile devices, this is the first time that language was included in a new compact being sent for review.
What happens in Washington?
When a compact from Florida, Connecticut, Arizona, or anywhere else goes to the Department of the Interior, a 45-day window begins to tick. By the conclusion of the 45-day window, the Secretary of the Interior has to approve or disapprove the compact.
But, if neither action is taken, the compact is deemed approved by the agency.
Is deemed approved the same as approval?
Functionally, the deemed approval operates the same as approval. However, legally it seems to pass the buck down the road allowing for a future challenge in court.
We recently saw this approach taken with several sports betting compacts signed between several Oklahoma tribes and the State’s Governor, Kevin Stitt. These compacts were later invalidated by the Oklahoma Supreme Court.
Questions around mobile Florida sports betting
As part of the special session of the state legislature, a document was circulated arguing that concluded for various reasons, it was permissible for the state and the Seminole tribe to compact for mobile FL sports betting.
The document cited an arbitration decision from Oklahoma written by an Oklahoma attorney that opined the Iowa Tribe of Oklahoma could offer online poker over the internet. This decision is of questionable precedential value for several reasons, which we previously outlined, but the fact that arbitration decisions are generally not precedential is a big factor.
The California case, which is focused on the Unlawful Internet Gambling Enforcement Act, provides unhelpful authority as to where a bet is placed. Effectively the Ninth Circuit Court of Appeals found that for the purpose of their analysis, the location of a server was not the determinative factor for where a bingo wager was placed.
The Desert Rose Bingo case out of the Ninth Circuit cites a Supreme Court case from 2014, Michigan v. Bay Mills Indian Community, arguing the:
‘gaming activity’ under IGRA [the Indian Gaming Regulatory Act] is ‘the gambling in the poker hall,’ as opposed to ‘off-site licensing or operation of the games.’
The Government (in California v. Iipay Nation; both the state and the federal government sued the Tribe) argued:
that the ‘gambling’ in this instance, is the patron’s decision to wager money on the bingo game, which occurs off Indian lands.
The Bay Mills Indian Community case
The question that the Supreme Court was tasked with examining in Bay Mills was whether a tribe maintains sovereign immunity when they open a casino off tribal lands.
The Supreme Court upheld the Tribe’s immunity from suits even for off-reservation occurrences. The individuals responsible are still subject to suit, but not the Tribal entity itself.
Why is this case relevant?
The issue in the case would have potentially come out differently if IGRA were applicable because IGRA requires states and tribes to come to an agreement, which partially abridges a tribal nation’s sovereignty.
This potentially would have allowed the state to sue the Tribe. Since IGRA is only applicable to “gaming activity located on Indian land …,” the state was out of luck in their ability to sue a Tribe for conduct occurring at a casino off tribal land.
Not a perfect comparison for FL sports betting
As has been pointed out by some of the most respected lawyers in this field, these cases are not a perfect analogy for what is taking place in Florida sports betting. In all of the above cases, there was a dispute between a state and a Tribe.
That is not the case in Florida. Indeed, we have an agreement in Florida. Discounting the Oklahoma arbitration case as it is non-precedential, the Iipay Nation case involved conduct, which the state of California did not want to permit. Similarly, in Bay Mills, Michigan opposed the opening of a new facility off of tribal lands. Again, the case in Florida is substantially different. There is an agreement between the Governor and the Tribe. There is also approval from the legislature, a failing in the recent Oklahoma compacts.
IGRA’s declaration of policy
Amongst the policy goals of IGRA was to provide a basis for tribes to promote economic development and to promote a regulated environment for gaming. Passed in 1988, it clearly did not contemplate the existence of the internet.
What is to come for Florida sports betting?
Experts are split on whether these compacts will be approved and ultimately withstand any legal challenges to their existence.
One side argues that IGRA’s intent was to effectively allow tribes and states to agree to the operation of gaming as they see fit. Others take a narrower view that would seem to preclude mobile wagering.
We will get out first glimpse of what direction this compact may take a little less than 45 days from now.