Opinion: Oral Arguments Provide Optimism For Florida Sports Betting Return

Written By John Holden on January 10, 2023
Florida sports betting oral arguments provide hope for return

Oral arguments wrapped up for the Florida sports betting lawsuit in the D.C. Court of Appeals last month.

With those arguments complete, we can look ahead at what comes regarding the relaunch of a Florida sports betting industry.

It’s probably not wise to read too much into judges during oral arguments. Especially those that we are less familiar with.

Before the hearing, most legal minds believed this would be another victory for West Flagler. The ownership group of two pari-mutuel facilities earned a decisive victory at the U.S. District Court. They also filed sharp and convincing briefs throughout the appeals process.

But after listening to those judges, it seemed that sports betting’s return to the Sunshine State was a definite possibility.

A quick refresher

Five groups made their case to a three-judge panel on the U.S. Court of Appeals for the D.C. Circuit.

West Flagler Associates filed a federal lawsuit against the Department of the Interior Secretary Deb Haaland over the 2021 Florida gaming compact. The compact contained a controversial sports betting model that gave the Seminole Tribe a gigantic share of the new market.

Haaland approved the compact through inaction in August 2021. Consequently, West Flagler listed her as the defendant, not the tribe.

However, the Seminoles want to be involved in the case as well. They filed for limited intervention but were rejected by Judge Dabney Friedrich. Friedrich invalidated the compact after ruling it violated the Indian Gaming Regulatory Act.

The tribe is filing for the same motion at the appellate level.

Additionally, a few amicus briefs were filed by other tribes, the State of Florida and Monterra AF. Monterra argued in favor of upholding Friedrich’s ruling at the district court level, while the tribes and the state supported overturning the decision.

Furthermore, the court granted Florida and Monterra a few minutes to speak during oral arguments.

Consequently, there was varied discussion and interests expressed. In the coming weeks and months, the three-judge panel will formulate their ruling and choose an author for the decision. Any judge ruling against the majority will have the opportunity to write a dissent.

Historically, the D.C. Court of Appeals is one of the faster circuits to go from oral arguments to decisions. A 2017 study found this court’s median time to be 2.6 months.

Things have undoubtedly changed, but around the three-month mark, we can start looking for a decision. Although it is also possible that we end up waiting much longer than that.

Highs and lows of the oral arguments

Where there were a few exceptions, nobody had a catastrophic argument or conceded a devastating position. As a result, there were certainly more highs than lows.

Despite that, there is seemingly some reason to be optimistic that Friedrich’s ruling could be overturned. At least based on the judges’ questions and reactions to the arguments. If overturned, sports betting could immediately return to Florida under the old model.

The star of the morning was without question Hamish Hume, who represented West Flagler. Hume demonstrated, once again, that he is one of the most skilled attorneys in the country.

He tactfully introduced his argument and recentered the judges’ questions around points he wanted to make. Hume didn’t fall down rabbit holes in areas he didn’t want to explore.

If there was a second star, it would go to Barry Richard, who represented the Seminole Tribe. Even with less time than West Flagler and the federal government, Richard proved to be a very skilled litigator.

Richard walked the judges through his arguments and provided clear and succinct responses to questions. However, as time expired, the judges had lingering questions over whether the DOI had failed to adequately represent the tribe.

None of the other lawyers had a bad day at the office. And it did not appear that any of them damaged their cases.

Judges sidetrack feds’ core arguments

Rachel Heron, who represented the federal government, was quickly taken on a detour away from her core arguments. Instead of discussing whether the compact was compatible with the IGRA, she was questioned about whether the Seminoles were an indispensable party under Rule 19 of the Federal Rules of Civil Procedure.

The time spent on Rule 19 consumed much of her 17-minute time slot. On the other hand, she reserved three minutes for rebuttal at the end of the hearing.

Amici parties were irrelevant

The two amici parties each had very little time to make their arguments. While the panel granted both of their motions for oral argument time, neither appeared to attract many questions from the judges.

This potentially indicates the judges’ preference to focus on the issues relating to federal statutes and Rule 19. The two amici arguments were focused on state law regarding Amendment 3, a 2018 ballot initiative that limited gaming expansion in the state.

Did the judges reveal clues about their decision?

It’s impossible to know with any level of certainty which way the judges were leaning.

Judge Wilkins expressed a lot of interest in the federal government’s case. All of the judges had plenty of questions about whether a decision about IGRA compliance would render Rule 19 questions moot.

This was possibly a positive indicator for the hopes of a sports betting return. However, Judge Henderson did seem to find Hume’s argument compelling.

Additionally, Judge Childs was less talkative than the other two during oral arguments, which made it difficult to grasp what aspects of the case she was most interested in.

What comes next?

As previously mentioned, there’s no set timeline for a decision, but a likely timeframe is within three months from the oral arguments. But in this case, it looks like there’s a good chance this is a split decision.

A 2-1 vote results in drafting both the majority opinion and the dissent. Afterward, the majority authors would have the chance to read the dissent and perhaps amend the majority decision.

These extra steps don’t occur with a unanimous decision. As a result, a split decision will take longer to announce.

Once there is a decision, there are a few potential outcomes.

First, there is the least likely outcome. Everyone could accept the decision and go home. West Flagler is actively seeking a buyer for Magic City Casino. Even with those plans, they would almost certainly appeal an unfavorable decision.

The second option is one of the parties’ petitions for a rehearing en banc. This happened in the Christie II sports betting case where the entire Third Circuit was empaneled to hear the case. En banc hearings are quite rare but can happen.

A third option is the losing party files a petition for certiorari at the Supreme Court and asks the highest court in the land to hear the case. Both appeal options are discretionary, so if the losing party gets denied for both, the decision is final.

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John Holden

John Holden is an Ottawa native raised in Oakville. Holding a J.D. / Ph.D., Holden is an academic at heart. For PlayFL, Holden will focus mostly on the legal developments in the current battle over Florida sports betting.

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