Opinion: Tribal Sports Betting Storylines To Watch

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Last year saw US sports betting handle rise, and the number of states offering legal sports betting increased to more than half the country.

However, while the volume of betting increased, the market for operators continued to consolidate. It’s a trend unlikely to stop moving forward, mainly as states like New York use sports betting licenses as a means to fill state coffers.

With 2021 (finally) in the rearview mirror, there is a major tribal gaming story we are watching as we roll into 2022.

Florida, California, and tribal sports betting

Florida Governor Ron DeSantis and the Seminole Tribe of Florida shocked much of the sports betting world when they announced a new deal in the Spring.

The deal healed a relationship that had been soured to the point that the Seminole Tribe ceased making payments on the previous compact due to the State breaching the terms of the agreement.

The new compact promised a relationship that would see the Sunshine State receive at least $2.5 billion in the deal’s first five years. In exchange, the Seminole Tribe received substantial exclusivity over sports betting in Florida, including mobile wagering. However, while pari-mutuels could effectively buy into sports betting through a deal with the Tribe, some viewed the cost as too high.

IGRA in the way?

Even before the Tribe launched mobile wagering, there were questions about whether the Indian Gaming Regulatory Act (“IGRA”) would permit such an activity. While experts on tribal gaming argued both sides, Judge Dabney Friedrich of the federal district court for the District of Columbia concluded that the mobile wagering scheme contemplated in the agreement between the Tribe and the state was not permitted.

This year will see this story unfold in the D.C. Court of Appeals, with the ending likely being determined by the Supreme Court, though this could (and likely will) come in the form of a denial of a grant of certiorari at the Supreme Court.

Ballot measures

While Florida’s remaining sports betting hopes play out at the D.C. Court of Appeals, Sunshine State bettors will have one option for regulated in-state wagering if a decision goes against the Seminole Tribe’s mobile operations.

Some type of federal legislation, like that introduced in 2019 by then-New York representative Anthony Brindisi, would modernize IGRA to allow for mobile wagering beyond tribal lands. The ballot measures launched by sports betting industry leaders came up short of the necessary signatures for a spot on the ballot in 2022.

What’s next in California sports betting?

One central question about the Florida compact’s validity is to what extent it will lead to similar agreements in other states should the Court of Appeals or the Supreme Court overturn the District Court’s decision.

For example, according to Gambling Compliance, California tribes revised their ballot proposal last month that would bring sports betting in California. The amendment would amend the California Constitution to carve out tribal wagering from IGRA. As PlayCA reported, the new ballot language states:

A federally recognized Indian tribe with Indian land in California may at any time elect to offer online sports wagers entirely off of Indian lands and not be subject to the Indian Gaming Regulatory Act.

The California initiative presently has the support of only four of the state’s 108 federally recognized tribes. Like the Florida ballot measure, the California initiatives, including those backed by cardrooms and sportsbook operators, face incredibly long odds of getting on the ballot.

Constitutional amendments in California require nearly a million signatures to get on the ballot – well 997,139 to be exact. At the moment, a single measure (a referendum on prohibiting flavored tobacco products) is the only qualified question. A referendum requires a lower signature threshold than a constitutional amendment.

Anywhere else in play in 2022?

Aside from Florida and California, one big question over the expansion of tribal sports betting focuses on the Sooner State.

Oklahoma is home to 33 federally recognized tribes, which operate 143 casinos and gaming centers. However, the state’s Governor and the Tribes have been at a stalemate since the Governor lost a court decision over the perpetual renewal of existing gaming compacts.

The progress for sports betting in Oklahoma was further derailed when several tribes negotiated with the Governor individually to offer sports betting, only to have those compacts thrown out by the state Supreme Court as being beyond the Governor’s unilateral powers.

Despite the apparent stalemate, the tribal gaming infrastructure in Oklahoma makes sports betting expansion an inevitability. There is a new bill scheduled to be introduced, which could potentially get both sides on the same page, but only time will tell.

A few final thoughts

There is a lot of hope for the continued expansion of sports betting across the country, especially as we ended 2021 with states like Ohio, which had long struggled to pass a sports wagering law, finally crossing the finish line.

Moreover, 2022 will likely be the year of tribal gaming. Many of the most populous states left to legalize sports betting have a significant tribal gaming influence.

Finally, should Congress manage to break its never-ending logjam and pass legislation, it seems likely that there would be bipartisan (though perhaps mixed) support for legislation modernizing IGRA. After all, IGRA intended to promote economic development; it would seem to hamstring such a goal if tribes were precluded from compacting to offer the product that consumers desire.