Days after the federal government and the Seminole Tribe of Florida filed their briefs, respectively, in the litigation over the 2021 Compact between the Tribe and Florida Governor Ron DeSantis, a significant group of tribal organizations, including the National Indian Gaming Association and individual tribes filed an amicus curiae brief with the D.C. Court of Appeals voicing support for the federal government’s efforts to reverse the decision of the District Court, which ended the brief appearance of regulated sports betting in the Sunshine State.
In many ways, the tribal groups’ brief makes a number of arguments that appear more straightforward than some of the federal government’s arguments. The influence of amicus briefs is something that has varied, but given the number of groups that signed onto this brief, it is a significant showing of support for the reinstatement of the compact.
Whether it has any influence on the D.C. Court of Appeals in the FL sports betting matter, however, is something we will learn in time.
What is an amicus brief?
Before we dig into the brief, it is crucial to understand what an amicus brief is and is not.
An amicus curiae brief is a Latin term that refers to a brief that is filed by a friend of the court. Note that definition does not say a friend of the parties.
Amicus briefs are typically filed by groups that have a similar interest in the outcome of the litigation but are not parties to the case itself and lack the ability to intervene directly. Historically, amicus briefs were meant to bring the court’s attention to the importance of issues that the parties may not have.
However, over time there has been a trend of many amicus briefs to effectively fall into a “me also” category, where groups effectively say we agree with the arguments of one of the parties. In recent years, the number of amicus brief filings at the Supreme Court has continued to grow. Though Courts of Appeals see fewer briefs, there has been an increase over time at the lower level as well.
What is in this Florida sports betting brief?
The first interesting fact about the brief is the disclosure that the groups consulted with the Seminole Tribe of Florida about the possibility of a combined brief. However, it was decided that there were different issues that both wanted to raise, and therefore it was impracticable to combine and file a single brief.
This brief raised some issues that the federal government did not devote a significant amount of time to in its brief. The first issue that the brief raises is the argument that the Indian Gaming Regulatory Act (IGRA) was passed with the intent that tribes would be able to offer any game that a state allows.
This argument about congressional intent is likely seeking to appeal to judges whose judicial philosophy extends beyond the pure text of a statute and seeks to understand what Congress intended for the law to facilitate. The brief cites a 2005 case out of New York for the proposition that IGRA supports a state and a tribe using the compacting process to allow for games, even if not allowed prior to the existence of the compact.
However, the Group goes further and argues that the legislation ratifying the 2021 Compact changed Florida law allowing sports betting.
Online sports betting is everywhere already
The second argument the amicus brief makes is that sports betting is expanding across the country rapidly (the brief lists 32 states that have authorized sports betting.) The brief notes that of the states that have authorized sports betting, 24 have tribal lands within their borders.
The brief notes that there is a continued desire to expand sports betting, and not allowing tribes to negotiate under IGRA for internet gambling would render them uncompetitive. The brief also notes in a footnote that the schemes in states like Arizona, Connecticut, Maine, and Michigan “… are inconsistent with Congressional intent in the passage of IGRA.”
Beefing up the feds’ main argument
In the federal government’s brief, they advance the argument that various compacts around the country include authorizing activities that take place off tribal lands, citing “off-track betting, lotteries, and sports betting.”
The brief heavily cites the use of compacts to allow for off-track betting, though like the federal government’s brief, the amicus brief does not mention that the Interstate Horseracing Act creates a complex federal regulatory scheme around off-track betting.
A narrow fix?
The final argument made is that the Court of Appeals could provide a narrow solution so that IGRA is not used to stop states from compacting for internet sports betting. The solution is as follows:
The District Court’s opinion could be read to require that Florida’s authorization for statewide internet sports betting must occur prior to, or independent of, an amendment to Florida’s compact with the Seminole Tribe. This would require the State to first expressly authorize statewide internet sports betting by statute or statewide initiative, and thereafter execute the compact amendment. Under such a narrow holding, this Court could remand the case with instructions for the District Court to afford the parties the opportunity to cure the defect.
The narrow solution would indeed provide the Court of Appeals an ‘out’ that would not involve potentially sending huge waves across the tribal gaming industry, though it is not clear that the appeals court will choose to read the District Court’s decision as sufficiently ambiguous to move forward with a Florida sports betting solution like this.
What does this brief do to Florida sports betting case?
We will not know until we get a decision just how impactful this brief was. Briefs that have significant sway over the court are frequently cited in the decision.
This brief strikes a balance between supplementing the federal government’s brief and providing some additional guidance to the court on ways to resolve this matter without upsetting a broader industry. The national impact of this case is one that is significant to many observers but may or may not play a role in the court’s decision.
This brief, along with the other amicus briefs filed, will be followed by a response from the federal government to Seminole Tribe’s opening brief seeking to intervene, and then a responding brief from West Flagler Associates will be filed. With the briefing expected to conclude in November, we could have oral arguments before the end of the year, and we should then have a decision within 2023.
