On Monday, the coalition that sued to block Florida’s gaming compact with the Seminole Tribe in August 2021 made another attempt to halt conditions put forth in the deal. West Flagler Associates filed a plea to the US Court of Appeals in hopes that the panel rehears the case.
On June 30, the Court of Appeals vacated 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).
In its filing, the plaintiff argues that the decision in June is a departure from previous opinions in regard to IGRA.
“Until the Opinion in this case, all prior IGRA cases held that, consistent with the plain text of IGRA, the Secretary may approve only those tribal-state compacts that authorize gaming ‘on Indian lands,’” West Flagler Associates argued in its filing.
What’s next in the fate of mobile sports betting in Florida
The filing on Monday was the deadline for West Flagler to make its plea to the court. Now that a request for a rehearing has been sent to the court, the Court of Appeals does not have a specific deadline to rule on the request.
There’s a possibility that West Flagler could petition the US Supreme Court to hear arguments for appeal. The deadline for that petition is Sept. 30. In either case, West Flagler could ask for an injunction on restarting sports betting.
Bob Jarvis, a gambling law professor at Nova Southeastern University in Fort Lauderdale, doesn’t think the DC Circuit Court nor the US Supreme Court would grant such a request.
“Requests for rehearing en banc are highly disfavored and are almost never granted. Roughly 1% of such petitions are granted nationwide each year,” Jarvis told PlayFL.
The Seminole Tribe believes the nature of the DC Circuit Court’s decision in June is a crucial point.
“It’s important to note the three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit issued a unanimous decision in favor of the U.S. Department of the Interior, which approved the gaming compact between the Seminole Tribe and the State of Florida,” tribe spokesperson Gary Bitner told PlayFL in an email Monday.
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 in the June ruling. The DC Circuit Court has 11 active duty judges who have a vote on rehearing en banc petitions.
“West Flagler Associates needs six votes (a majority) for a rehearing en banc,” Jarvis said. “If we take out the panel members who presumably will stick by their decision, West Flagler has to win six of the remaining eight remaining judges.”
Could state courts be in play?
The plaintiffs in the case could also eventually make a plea to the state courts to toss the 2021 compact.
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.
Jarvis thinks this potential legal battleground could stall the Seminole Tribe’s efforts as well.
Jarvis believes the plaintiffs could argue that a 2018 constitutional amendment would stop any gambling expansion. Amendment 3, passed by 71% of the voters, gave Florida residents the “exclusive right” to authorize gaming in the state, blocking the state Legislature from doing so.
How did we get here with online sports gambling?
In 2021, the Florida Legislature and the Seminole Tribe came to an agreement on a new gambling compact that would send $500 million to the state each year from tribal gaming.
The deal, 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 gaming table options in their casinos. One state leader thinks the new deal will eventually bring in $1 billion in revenue annually.
In November 2021, the Seminole Tribe launched its Hard Rock Bet app and began accepting wagers. However, West Flagler Associates filed a lawsuit 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.