On Thursday, the US Department of the Interior filed a response to a petition for a rehearing in the ongoing saga to legalize sports betting in Florida.
The response is the latest turn in West Flagler Associates’ effort to nullify a 2021 gaming compact between the Seminole Tribe and the state. On Aug. 14, West Flagler made another attempt to halt conditions put forth in the deal by filing a plea to the US Court of Appeals in hopes that the panel rehears its arguments to stop the terms of the compact.
West Flagler’s plea for a rehearing en banc was a response to the Court of Appeals’ 3-0 ruling to vacate a November 2021 federal judge’s decision that ruled the compact, signed by the Florida Legislature in 2021, violated the Indian Gaming Regulatory Act (IGRA).
“West Flagler’s arguments for rehearing are strawmen, premised on its erroneous assertion that, by referencing the state-sanctioned wagers, the compact — and the Secretary’s approval thereof — purport to unilaterally legalize the placement of those wagers and the state regime for regulating them,” the Department of the Interior’s response argues. “But, as West Flagler acknowledges, the panel held in no uncertain terms that the compact does not do that. And the panel did so while making scrupulously clear that neither its opinion nor the Secretary’s approval prevents West Flagler from challenging the relevant state law in Florida’s courts. Rehearing is unwarranted.”
Mobile sports betting in Florida still on hold
The filing on Thursday was the deadline for the Department of the Interior’s response to the court. Now that the court has the response, the next step is for the court to make a ruling on West Flagler’s request for rehearing. There is no specific deadline to rule on the request.
Bob Jarvis, a gambling law professor at Nova Southeastern University in Fort Lauderdale, doesn’t think the DC Circuit Court would grant such a request.
“Nationally 1% of rehearing en banc requests are granted. So even under the best of circumstances, the chances of getting a rehearing en banc granted are very, very, very small,” Jarvis told PlayFL.
Jarvis said there has to be a real sense among the judges who were not on the panel that the panel got things wrong as a legal matter. The DC Circuit Court has 11 active duty judges who have a vote on rehearing en banc petitions.
“I think this request is going down in flames rapidly,” Jarvis said.
What could be next in the case
If the court denies the rehearing of the case, West Flagler could appeal the ruling to the US Supreme Court. One legal expert previously told PlayFL that if it does get appealed to the highest court, it may be 2025 before there’s a final decision.
In the June 30 decision, the Court of Appeals hinted at this battle when the ruling noted a federal court wouldn’t address a state issue.
“Whether it is otherwise lawful for a patron to place bets from non-tribal land within Florida may be a question for that state’s courts, but it is not the subject of this litigation and not for us to decide,” the Circuit Court noted in its ruling.
How did we get here with online sports gambling?
The Legislature and the Seminole Tribe came to an agreement on a new gaming compact in 2021 that would send $500 million to the state each year from tribal gaming. The new deal could eventually bring in $1 billion in revenue annually.
The compact, which was passed in a special session that year, authorized the tribe the right to offer legal sports betting in Florida, along with the ability to add craps and roulette as gambling table options in their casinos.
The tribe launched its Hard Rock Bet app in November 2021 and began accepting wagers. However, West Flagler Associates filed a lawsuit versus the Department of the Interior in the late summer, arguing that the new compact violated the IGRA. On Nov. 22, 2021 a federal judge ruled in favor of the plaintiffs, thereby vacating the new compact. A couple of weeks after that, the Seminoles took their betting app offline.
The US government appealed that decision, and in June, the Court of Appeals made its ruling vacating the judge’s ruling.
