Opinion: Florida Sports Betting Plaintiff Files Powerful Brief In Compact Appeal

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Florida sports betting

Three days after the federal government filed their answer to the Seminole Tribe of Florida‘s appeal in the litigation over the 2021 gaming compact that temporarily brought sports betting to Florida, West Flagler Associates, the plaintiff in the case and appellee, filed its answering brief to both the federal government’s appeal and the tribe’s appeal.

The South Florida gaming magnate’s brief is divided into three substantive arguments with the first taking aim at the federal government’s appeal and the final one targeting the Seminole Tribe’s appeal denying the Tribe’s motion to intervene. The brief is not brief at all, coming in at a whopping 110 pages, though roughly 80 pages are devoted to substantive arguments ,with the rest addendums.

What to make of Florida sports betting brief?

This was a powerful rebuttal to the federal government’s appeal. The federal government who has received some criticism throughout the progression of this case will have its hands full with what West Flagler Associates presented.

Notably, West Flagler fairly clearly highlights the confusing and awkward argument being advanced by the federal government regarding activities taking place off tribal lands while being included in the compact, but purportedly not authorized by the compact.

Despite the damage likely inflicted by this brief, the two appellants will have a chance to reply, with those briefs due November 14. In the interim, amicus briefs are due October 13, raising the possibility that some additional groups voice their support for the appellees.

Does IGRA require Florida sports betting rejection?

In its first argument, West Flagler Associates argues that the Indian Gaming Regulatory Act (IGRA) requires the Secretary of the Interior to disapprove the Florida sports betting compact, at least as it relates to the mobile sports betting provisions. Citing to the Amador County case, the appellees argue that

IGRA does not authorize the Secretary to approve a compact that purports to authorize gaming off Indian lands (emphasis in original).

The brief argues that not only could the Secretary not approve the compact because it allows online sports betting by those off tribal lands, it argues that there was an affirmative obligation on the Secretary to disapprove the compact.

What are they talking about?

The appellees call the theory advanced in the federal government’s brief that gaming off tribal lands cannot be authorized by IGRA but can be included in a compact,  “puzzling” and suggest the argument:

requires the Court to ignore what the Compact actually says, and the obvious attempt of the compacting parties to obtain the imprimatur of IGRA to authorize gaming off Indian lands as if it occurred on Indian lands—federal authorization that was necessary, from the perspective of the Tribe and Florida, because state law did not permit such gaming (emphasis omitted).

West Flagler Associates go on to argue that the federal government is effectively asking the court to provide an entirely new reading to IGRA.

If you do not like that argument, how about another?

The appellee’s second argument against the federal government is that the Administrative Procedure Act (APA) allows for review of the Secretary’s nondenial of the Compact.

The brief argues that both the affirmative approval process and the 45-day time-lapse approval of compacts should both be subject to the same review as “agency action” under the APA. It is argued that APA claims are justiciable even if the review extends beyond an agency’s power under a particular statute.

In other words, it is argued that if the Secretary approves a compact that violates a federal law other than IGRA, the action should still be capable of being challenged under the APA.

Along those lines

In justifying the need for such an argument, West Flagler Associates argues that the compact violates both the Unlawful Internet Gambling Enforcement Act and the Wire Act and these should serve as an additional basis for rejecting the Compact, independent of the issues with IGRA. These arguments have been advanced throughout the litigation, though with little traction.

The appellees also advance an argument being raised by the Ted Olson-backed Maverick Gaming in the Western District of Washington case, which alleges the Compact approval violates the Equal Protection guarantees of the Fifth Amendment by awarding “a race-based monopoly.”

A no for the Seminole Tribe too

In the group’s third argument, the appellees contend that the District Court was correct in dismissing the Seminole Tribe’s motion to intervene. The brief states:

The court concluded that the defense of the Compact provided by Interior (as defendants) and Florida (as amicus) eliminated any risk of prejudice, and that the suit did not implicate the Tribe’s sovereign immunity.

Government adequate in Florida sports betting case

The brief argues that the federal government provided adequate representation of the Tribe’s interests for purposes of Federal Rule of Civil Procedure 19(b). The brief also argues that the interest in defending the validity was the same for both the Tribe and the Department of the Interior and as a result, the government’s good-faith effort to defend the compact was sufficient representation.

West Flagler cites to the Artichoke Joe’s case and notes that absent a conflict of interest,

In general, the United States’ trust obligations to the Indian tribes, which the Secretary has a statutory duty to protect, satisfies the representation criteria …

The brief goes on to argue that the court was correct in its analysis and weighting of factors in denying the Tribe’s motion to intervene in the case.