Under 24-hours after Judge Dabney Friedrich ruled that the 2021 Compact between the State of Florida and the Seminole Tribe of Florida was incompatible with the Indian Gaming Regulatory Act (IGRA), the Seminole Tribe has filed an appeal to have the case heard by the District of Columbia Court of Appeals.
The appeal was a certainty. The Tribe is likely to be joined in their appeal by a separate appeal from the Department of the Interior and Secretary of the Interior Deb Haaland. The appeal was the most obvious next step in the battle over the legality of the Compact. However, there are other potential options available as well.
The appeal(s)
The Seminole Tribe’s appeal will be limited to the part of the District Court ruling that impacts them. Notably, Judge Friedrich’s decision to determine the case could proceed without the Tribe as a party to the litigation.
Comparatively, if the Tribe prevails that they are an indispensable party and the failure to include them means the lawsuit should be dismissed, that is the ballgame, and the taps get turned back on.
The Seminole Tribe, however, will not be the only party to appeal. In addition, the Department of the Interior will inevitably file an appeal. It will likely challenge both Judge Friedrich’s ruling on the plaintiffs’ standing to bring the lawsuit. Moreover, the Judge’s finding regarding the permissibility of bets occurring on tribal land if the server’s location is on tribal land under IGRA.
Therefore, success on either appeal would restore the 2021 Compact, which absent a stay, no longer exists.
What about a stay?
While it is likely that both the Seminole Tribe and the Department of the Interior will ask the District Court for a stay pending the appeal, the parties need to satisfy a four-part test to secure it.
- Likelihood of success on appeal
- Likelihood of irreparable harm pending appeal
- The balance of the hardships
- The public interest
At this time, the Seminole Tribe, within their motion, decided to stay for the opinion of Judge Friedrich. They argue that all four factors favor a stay. If the District Court denies a stay, the parties could seek one at the Court of Appeals.
The backdoor?
An alternative to the appellate process, which could drag on for months, would be to lobby federal lawmakers to advance a bill similar to the one introduced in 2019 by then-New York congressman Anthony Brindisi that modernized IGRA to allow for online sports betting.
The bill, H.R. 5502, pretty simplistically changed federal law to designate a bet placed where the servers are. The relevant text stated:
“For purposes of the Indian Gaming Regulatory Act (25 U.S.C. 2701 et seq), only a sports wager made through an interactive sports wagering platform shall be deemed to be made at the physical location of the server or other computer equipment used to accept the sports wager.”
Followed by:
(1) The person placing the sports wager and the server or other computer equipment through which the wager is accepting are in the same State.
(2) The applicable State and Indian Tribe have entered into a Tribal-State compact under the Indian Gaming Regulatory Act authorizing the placing of sports wagers through interactive sports wagering platforms.
Furthermore, a federal bill would help bring IGRA into the 21st century. It would help fulfill the initial reasons for passing IGRA, which was to promote economic development. At present, with the D.C. District Court ruling in place, Tribes require to enter into commercial arrangements with states if they want to offer mobile wagering.
Many who closely follow tribal gaming believe that IGRA intends to facilitate cooperation between tribes and the states to agree on gaming schemes that best suit their needs. At present, IGRA serves as an obstacle to the desired regulatory system that Florida and the Seminole Tribe mutually agreed.
While we wait
In addition, Seminole Tribe and their partners face the task of playing a waiting game. While Governor DeSantis stated that he was uncertain whether the ruling impacted Florida or the Seminole Tribe, that is likely playing coy, at least regarding the Seminole Tribe’s partners and suppliers who seek to operate in other states.
While it would undoubtedly be easy to ignore the D.C. District Court’s ruling, such an action could have significant consequences in other jurisdictions where suppliers seek a license. As of right now, in the words of Judge Friedrich:
“Continuing to offer sports betting [in Florida] would violate federal law.”
What’s to come
The forthcoming appeals will play out over the coming months. They are unlikely to resolve nearly as quickly as the district court decision. However, it is worth bearing in mind that the 2022 ballot initiative from Florida Education Champions will not impact the case, as the two things are happening in isolation.
Even if those supporting the open sports betting market can gather enough signatures by the February deadline, an open market would not be likely to launch before 2023.
