The legal escapades attempting to stop the possible fall launch of Florida sports betting moved forward with new filings on Tuesday.
The West Flagler Associates’ lawyers filed their response to Gov. Ron DeSantis’ motion to dismiss and the Seminole Tribe’s motion to intervene in the court case. Neither action was unexpected, and they set the stage for a showdown over a motion that, if granted, would stall the South Florida gaming operator’s efforts to stop the Seminole Tribe from launching sports betting.
These filings in the Northern District Florida Federal Court were joined by a joint briefing schedule filed in the District of Columbia this same week.
The Florida-based filings are likely one of the final steps at the District Court level before a hearing. Regardless of the federal court’s ruling, the case will be appealed to the Eleventh Circuit Court of Appeals.
The response to the motion to dismiss the amended complaint
The plaintiffs, West Flagler Associates and the Bonita-Fort Myers Corporation, argue that DeSantis’s compact with the Seminole Tribe of Florida was an ultra vires act. In other words, it was something beyond what his powers allow him to do.
The South-Florida gaming magnates argue that the off-reservation sports betting provisions in the Compact violate the Indian Gaming Regulatory Act (“IGRA”) as well as various other federal laws and constitutional provisions.
On the internet, your words live forever
Digging up an amicus brief filed by the State of Florida back from the Couer D’Alene Tribe case in the Ninth Circuit Court of Appeals, the plaintiffs note that the State of Florida once argued that:
The ‘on Indian lands’ requirement of IGRA clearly mandates that any Indian gaming activity, including a consumer’s play or participation in the game, physically take place on tribal land.
The response then moves to counter the arguments of the government. First, the plaintiffs argue that the Governor is a proper defendant, and the 1908 doctrine from the case Ex Parte Young, which insulates states from lawsuits in federal court, does not apply here.
The plaintiffs argue that the governor fits within the scope of state officials who can be sued in their official capacity to seek equitable relief and stop ongoing violations of federal law.
A fantasy problem?
The plaintiffs highlight a potential problem with the Compact in the form of the remaining provisions for fantasy sports. The response argues that the fantasy sports provisions in the Compact are part of the ongoing purpose and intent of the Compact. Therefore, the Governor is obligated to continue negotiating with the tribe on a monopoly over online fantasy sports, even though the legislature rejected this aspect of the Compact. This argument may show a continued connection of the Governor to the Compact.
Similar arguments are advanced to argue that Secretary Julia Brown of the Florida Department of Business is a proper defendant.
The Tribe is not indispensable?
The response argues that the Seminole Tribe is not an indispensable party to this litigation. However, much of their argument on that matter came via their opposition to the Seminole Tribe’s motion to intervene, as opposed to in response to the Governor’s motion to dismiss.
A leg to stand on?
The plaintiffs argue that their injuries are concrete within the 11th Circuit’s meaning of the term and that the injury of harm to their businesses can be traced to the defendants’ actions.
Back on the attack
The brief then circles back to rebut the defendants’ motion to dismiss, arguing that the off-reservation sports betting provisions of the Compact violate IGRA.
Notably, the plaintiffs argue that the governor and Secretary Brown have avoided the Iipay Nation of Santa Ysabel case, which the plaintiffs argue is “directly on point.”
The plaintiffs also argue that the letter from the Department of the Interior allowing the Compact to come into force lacks the power of law, and therefore is not an administrative action owed deference by the court.
Wire Act and the Unlawful Internet Gambling Enforcement Act
The plaintiffs then moved to address the defendants’ arguments that they are not in violation Wire Act and the Unlawful Internet Gambling Enforcement Act (“UIGEA”). The plaintiffs focus this line of attack on the fact that the voters did not approve of this gambling expansion, and it is therefore not lawful, as Amendment 3 required voter approval for gambling expansion.
Opposition to the Seminole Tribe’s intervention
West Flagler Associates also opposed the Seminole Tribe’s limited motion to intervene in the case. The plaintiffs argue that the two questions asked in the case: 1) whether the Governor’s actions were ultra vires; and 2) whether the implementing law is ultra vires are not within the scope of the Tribe’s interest.
The plaintiffs outline three reasons that the Tribe’s motion should be denied:
- “[T]he Tribe relies on conclusory, unverified assertions, and its asserted sovereign status does not entitle it to the relief it seeks.”
- The Governor and Secretary Brown will adequately represent the Tribe’s interest; and,
- The limited intervention would be “futile.”
What to make of the latest filings?
Neither of these filings was unexpected, but they set the stage for an upcoming battle. The Florida-based litigation should likely come to a head before a potential launch before the end of the year. However, an appeal to the Eleventh Circuit Court of Appeals seems inevitable.