If you have watched any professional sporting events on television recently, you are well aware that the market for sports gambling is flourishing. Whether it is by DraftKings, FanDuel, Caesars, or a plethora of other sportsbooks, customers across the country are being encouraged to put their hard-earned money on the line to support their favorite teams and players. Despite the booming market, there are still fifteen states in the United States that do not have legal sports betting, including our home state of Florida.[i] While sports betting in Florida is not currently legal, the procedural posture of the gambling industry is quite interesting in our state.
On May 25, 2021, Florida Governor Ron DeSantis signed into action Senate Bill 2-A, which enacted a gaming compact between the Seminole Tribe and the State of Florida that gave the Seminole Tribe the exclusive right to offer online sports betting within Florida’s borders.[ii] This Compact provided that consumers present anywhere in the State of Florida, not just on tribal land, may legally participate in online sports betting, so long as all of the wagers made are “deemed to be exclusively conducted” through an outlet authorized by the Seminoles.[iii] After being signed into action by Governor DeSantis, the Compact was submitted to the Secretary of the Interior Deb Haaland, who abstained from either approving or rejecting the Compact within the 45-day window allotted by law.[iv] Due to Haaland’s inaction, the Compact was enacted, but permanent legal sports betting has still not come to Floridians due to multiple appeals and lawsuits that have been filed against the Seminoles and Governor DeSantis in order to rule the Compact unconstitutional. The most impactful challenge to the bill materialized in November 2021 in the case of West Flagler Associates v. Haaland, in which West Flagler filed suit in the D.C. Circuit Courts, arguing that the Compact authorized gambling outside of federal lands, therefore violating the Florida Constitution and multiple federal laws, including the Indian Gaming Regulatory Act (IGRA).[v] In that case, the presiding Judge Dabney Friedrich sided with West Flagler stating that the Compact between the Seminoles and Florida “authorizes sports betting both on and off Indian lands.”[vi] This authorization by the Compact would be deemed a violation of federal law as it does not abide by the language of the IGRA.
Fast forward to 2023, when the U.S. Court of Appeals for the District of Columbia Circuit reversed the 2021 ruling that the compact violated the IGRA. On appeal, the court found that “while an IGRA gaming compact cannot authorize gaming outside Indian lands, it may properly address such gaming, as it was in the Florida-Seminole compact.”[vii] The court decided that the language within the Compact that allowed for bets to occur on Indian lands is “directly related to the operation of the Tribe’s sports book and addresses the agreement between the Seminole tribe and Florida.”[viii] Unsurprisingly, West Flagler filed a request for a rehearing of its case, which was ultimately denied by the D.C. Circuit Court of Appeals on September 11, 2023. In making this decision, the D.C. court stated that “[u]pon consideration of appellees’ petition for rehearing en banc, the response thereto, and the absence of a request by any member of the court for a vote, it is ordered that the petition be denied.”[ix] Following this denial for rehearing by the D.C. Circuit, the D.C. court again rejected West Flagler as they denied West Flagler’s request for a stay motion in order to prevent the establishment of legal sports betting in Florida.[x]
Following these two denials by the D.C. Circuit Court, West Flagler has been left with two options to continue their battle against legal sports betting in Florida. On the one hand, the West Flagler group may file a petition for writ of certiorari with the United States Supreme Court.[xi] While this may seem like the most tempting option for the West Flagler group, there is no guarantee that the Supreme Court will decide to hear this issue. Also, with the denial of their request for a stay motion, West Flagler has just ninety days from September 11 (the date the initial rehearing was denied) to appeal for a rehearing of the case by the Supreme Court. The other option for West Flagler or any other affected party, is that they could challenge the constitutionality of the Compact and the language within it. Specifically, any affected party could “follow the guidance of the court and challenge the Compact before the Florida state courts based on an argument that the Compact’s ‘deeming’ clause is unconstitutional” and request the court to challenge the State’s argument that wagers “placed off of tribal lands to have occurred on tribal lands based solely on server location.”[xii] Despite these alternatives, there has been no forward movement from West Flagler or any other opponent of the Compact.
Currently, the Seminole Tribe could technically launch their Hard Rock Bet app in Florida, as there is no pending litigation that prevents them from going live for Florida residents. However, due to the scenario that played out in 2021, in which the Tribe launched their app following the enaction of the bill but was later taken down due to the West Flagler suit, it seems as if the Seminoles are waiting until they are sure they will not face any opposition before relaunching their app and opening sportsbooks in their casinos across the state. Due to the opinions of the D.C. Circuit Court, it seems as if it is a certainty that sports gambling will become legal and operational in Florida very soon, and it will be done exclusively through the Seminole Tribe. While there has been opposition to this compact, it has been done entirely through groups like West Flagler, who are attempting to gain access to the piece of the pie that is the Florida sports gambler. With the presence of Hard Rock casinos, owned and operated by the Seminole tribe, in both South Florida and the Tampa Bay area, it makes sense for the state of Florida to partner with the Seminoles to bring legal sports gambling to Floridians. The cases presented by West Flagler and others have merely been done to prioritize their own financial gain rather than truly being concerned with the legal sanctity of the IGRA. Hopefully, for sports fans and avid gamers, there will soon be a conclusion to this litigation and Florida will become the thirty-sixth state to legalize sports gambling within its borders.
[i] Interactive U.S. Map: Sports Betting, Am. Gaming Assoc., https://www.americangaming.org/research/state-gaming-map/ (last visited Oct. 14, 2023).
[ii] See Fla. CS for SB 2A (2021).
[iii] Id.
[iv] See John Holden, New Lawsuit Challenging Florida Sports Betting Compact Filed in DC, LSR (Sep. 28, 2021), https://www.legalsportsreport.com/57458/another-lawsuit-filed-florida-sports-betting-compact/.
[v] See W. Flagler Assocs. V. Haaland, 573 F. Supp. 3d 260 (D.D.C. 2021).
[vi] Id.
[vii] Katherine Guarino Baker et al., D.C. Circuit Court Paves the Way for Tribal Online Sports Betting and iGaming, Holds Florida-Seminole Compact Legal Under IGRA; West Flagler to Appeal, Nelson Mullins (Aug. 16, 2023), https://www.nelsonmullins.com/idea_exchange/blogs/cards-on-the-table/all/d-c-circuit-court-paves-the-way-for-tribal-online-sports-betting-and-igaming-holds-florida-seminole-compact-legal-under-igra-west-flagler-to-appeal.
[viii] Id.
[ix] Robert Simmons, DC appeals court denies rehearing petition in Florida sports betting case, EGR (Sep. 12, 2023) https://www.egr.global/northamerica/news/dc-appeals-court-denies-rehearing-petition-in-florida-sports-betting-case/.
[x] See Charlie Horner, DC Circuit Court denies West Flagler stay request in Florida sports betting case, SBC Americas (Sep. 29, 2023), https://sbcamericas.com/2023/09/29/dc-circuit-court-deny-west-flagler-stay/.
[xi] See Baker, supra note vii.
[xii] Id.
