Florida Sports Betting Suit Draws Expected Response And A Surprise

Posted on September 1, 2021
Florida sports betting
Posted By on September 1, 2021

The Florida sports betting lawsuit filed in the Federal Northern District of Florida against Gov. Ron DeSantis and his administration by South Florida gaming operators was met with an expected response from the governor’s office Tuesday night.

DeSantis and Julie Brown filed a motion to dismiss, which was filed 14 days earlier. There was, however, a surprise on the public court filing system last night as well.

A motion seeking to intervene in the FL sports betting matter was filed by the Seminole Tribe of Florida. In addition to filing to intervene, the tribe is seeking to dismiss West Flagler‘s lawsuit as well.

Motion to dismiss Florida sports betting suit

The Governor’s motion argues that the plaintiff’s lawsuit should be dismissed under:

  • Federal Rules of Civil Procedure 12(b)(1) (lack of subject matter jurisdiction)
  • 12(b)(6) (failure to state a claim upon which relief can be granted)
  • 12(b)(7) (failure to join a party under rule 19)
  • 19 (required joinder of parties)

The Governor’s office argues that the Governor and Secretary are not the officials who enforce the compact provisions and have been improperly named in the lawsuit. They additionally argue that the lawsuit is barred by the State of Florida’s sovereign immunity.

Finally, the motion to dismiss argues that the Seminole Tribe is indispensable to the litigation.

DeSantis not a proper defendant?

DeSantis argues he is not a proper defendant in this litigation because they are not the ones who enforce the law. That is the state.

He argues that his only job was to negotiate and execute the gaming compact, not enforce it.

Relatedly, the defendants argue that the Ex Parte Young doctrine (a mechanism that allows federal courts to hear matters about actions by state officials that would otherwise be barred by state’s sovereign immunity when there is an action contrary to federal law or the Constitution) does not apply to this matter.

The motion to dismiss also argues that Brown is improperly named, alleging that the Secretary merely has authority to monitor the compact, not actually enforce it, so she is also beyond the scope of the Ex Parte Young doctrine.

The Governor’s motion also argues that the South Florida gaming operators have failed to add the Seminole Tribe, an alleged necessary party.

No private right of enforcement

The most significant argument in terms of length is the Governor’s argument that there is no private right of action for West Flagler Associates to attempt to enforce any of the three implicated federal statutes:

  • Indian Gaming Regulatory Act
  • Wire Act
  • Unlawful Internet Gambling Enforcement Act

The motion cites fairly significant case law, particularly in regards to the criminal law statutes that reject the argument that there is a private right to enforce these statutes.

No standing on Florida sports betting?

The motion to dismiss also argues, as predicted, that the plaintiff lacks the necessary standing to bring this lawsuit. It argues:

sports betting is and would be illegal at Plaintiffs’ pari-mutuel facilities regardless of the Compact, and Plaintiffs fail to establish why patrons wishing to engage in sports betting would visit Plaintiffs’ facilities but for the Compact.

If the plaintiff cannot establish an injury, they lack standing.

The added equal protection claim?

The motion addresses the recently added Equal Protection claim by citing Supreme Court precedent for the proposition that every piece of legislation that deals with “Indian tribes … single[s] out for special treatment tribal Indians living on or near reservations.”

The motion goes on to note that the Court has repeatedly upheld “legislation that singles out Indians for particular and special treatment.”

The Governor’s lawyers then ask that the amended complaint be dismissed and judgment entered in favor of the defendants.

Seminole Tribe arrives on the scene

While the Governor’s motion to dismiss was expected, yesterday also had a surprise when the Seminole Tribe of Florida filed a motion to intervene and a motion asking the Federal Court to dismiss the West Flagler Associates lawsuit.

The Seminole Tribe argues:

the Tribe is a necessary and indispensable party to a suit challenging the legality of its gaming compact with the State.

But there is a catch: because the Seminole Tribe has immunity, they cannot be joined, and they thereby argue that the case must be dismissed.

Damned if you do …

The Seminole Tribe enjoys sovereign immunity, which means that they cannot be sued unless they agree to be sued. Despite the fact that the tribe’s immunity would seem to leave the plaintiffs without a necessary party to sue, the tribe argues that case law supports this proposition and that the case should thereby be dismissed.

The motion to intervene states:

As courts have ruled time and again, “this result is a common consequence of sovereign immunity, and the tribes’ interest in maintaining their sovereign immunity outweighs the plaintiffs’ interest in litigating their claims.”

About to heat up in Florida sports betting

The timeline to respond to this motion under the federal rules is 10 days. After that, the parties who filed the motion will have seven days to reply to the response.

It remains to be seen if there will be oral arguments but they would be scheduled for a time after the reply is filed. These dates are subject to the court’s approval so an extension is not out of the question, but regardless this case is likely to see a hearing before the magic October 15 date.

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John Holden

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

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